Ozkarahan v. Divver et al

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
BAYRAM OZKARAHAN,
Petitioner,
v.
PATRICK DIVVER, Field Office
Director of Enforcement and Removal
Operations, San Diego Field Office,
Immigration and Customs Enforcement, et
al.,
Respondents.
Case No.: 26-CV-653 JLS (MMP)
ORDER GRANTING IN PART
PETITION FOR WRIT OF
HABEAS CORPUS
(ECF No. 1)
Presently before the Court is Bayram Ozkarahan’s Petition for Writ of Habeas
Corpus pursuant to 28 U.S.C. § 2241 (“Pet.,” ECF No. 1). 	Also before the Court is
Respondents’ Response to Petition (“Ret.,” ECF No. 4). Petitioner did not file a Traverse.
See generally Docket. For the reasons set forth below, the Court GRANTS IN PART the
Petition for Writ of Habeas Corpus.
BACKGROUND
Petitioner, a citizen of Türkiye, alleges that he has been detained by the United States
Department of Homeland Security’s (“DHS”) Immigration and Customs Enforcement
(“ICE”). Pet. at 3. Petitioner entered the United States around October 2023, was released
from custody, and thereafter filed an application for asylum. Pet. ¶¶ 17–19. DHS issued a
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Notice to Appear and initiated removal proceedings, which remain ongoing. Id. ¶ 21. DHS
thereafter re-detained Petitioner. Id. ¶ 22. Petitioner alleges that his re-detention violates
the Administrative Procedure Act, the Due Process Clause of the Fifth Amendment, and
the Immigration and Nationality Act. 	See generally id. 	In their Return, Respondents
submit only that Petitioner is entitled to a bond hearing pursuant to Maldonado Bautista v.
Santacruz, No. 5:25-CV-01873-SSS-BFM, --- F.R.D. ---- , 2025 WL 3289861 (C.D. Cal.
Nov. 20, 2025). Ret. at 2.
LEGAL STANDARD
A federal prisoner challenging the execution of his or her sentence, rather than the
legality of the sentence itself, may file a petition for writ of habeas corpus in the district of
his confinement pursuant to 28 U.S.C. § 2241. See 28 U.S.C. § 2241(a). The sole judicial
body able to review challenges to final orders of deportation, exclusion, or removal is the
court of appeals. 	See generally 8 U.S.C. § 1252; see also Alvarez–Barajas v. Gonzales,
418 F.3d 1050, 1052 (9th Cir. 2005) (citing REAL ID Act, Pub. L. No. 109-13, 119 Stat.
231, § 106(a)). 	However, for claims challenging ancillary or collateral issues arising
independently from the removal process—for example, a claim of indefinite detention—
federal habeas corpus jurisdiction remains in the district court. 	Nadarajah v. Gonzales,
443 F.3d 1069, 1076 (9th Cir. 2006), abrogated on other grounds by Jennings v. Rodriguez,
583 U.S. 281 (2018); Alvarez v. Sessions, 338 F. Supp. 3d 1042, 1048–49 (N.D. Cal. 2018)
(citations omitted).
DISCUSSION
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 (9th Cir. 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
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State deprives a person of liberty or property.” 	Zinermon v. Burch, 494 U.S. 113, 127
(1990). “Even individuals who face significant constraints on their liberty or over whose
liberty the government wields significant discretion retain a protected interest in their
liberty.” Pinchi v. Noem, No. 25-cv-5632-PCP, 2025 WL 2084921, at *3 (N.D. Cal. July
25, 2025) (citations omitted). 	Although 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 [they] fail[] to live up to the
. . . conditions [of release].’” Id. (quoting Morrissey v. Brewer, 408 U.S. 471, 482 (1972)).
“Thus, even when ICE has the initial discretion to detain or release a noncitizen pending
removal proceedings, after that individual is released from custody [he] has a protected
liberty interest in remaining out of custody.” 	Pinchi, 2025 WL 2084921, at *3 (citing
Romero v. Kaiser, No. 22-cv-20508, 2022 WL 1443250, at *2 (N.D. Cal. May 6, 2022)).
Respondents acknowledge that Petitioner is not merely an “applicant for admission”
at the border with minimal due process rights. See Ret. at 2 (acknowledging that Petitioner
is detained under 8 U.S.C. § 1226(a)). 	Petitioner thus has a protected liberty interest in
remaining out of custody. 	See, e.g., Pinchi, 2025 WL 2084921, at *4 (“[Petitioner’s]
release from ICE custody after her initial apprehension reflected a determination by the
government that she was neither a flight risk nor a danger to the community, and
[Petitioner] has a strong interest in remaining at liberty unless she no longer meets those
criteria.”); Noori, 2025 WL 2800149, at *10 (“Petitioner is not an ‘arriving’ noncitizen but
one that has [been] present in our country for over a year. This substantial amount of time
indicates he is afforded the Fifth Amendment’s guaranteed due process before removal.”);
Matute v. Wofford, No. 25-cv-1206-KES-SKO (HC), 2025 WL 2817795, at *5 (E.D. Cal.
Oct. 3, 2025) (finding petitioner had a protected liberty interest in his release).
As Petitioner has a protected liberty interest, the Due Process Clause requires
procedural protections before he can be deprived of that interest. See Matthews v. Eldridge,
424 U.S. 319, 335 (1976). To determine which procedures are constitutionally sufficient
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to satisfy the Due Process Clause, the Court must apply the Matthews factors. 	See
Matthews, 424 U.S. at 335. 	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.
The Court finds that all three factors support a finding that the government’s
revocation of Petitioner’s release without notification, reasoning, or an opportunity to be
heard, denied Petitioner of his due process rights.1 First, as discussed above, Petitioner has
a significant liberty interest in remaining out of custody pursuant to his parole. “Freedom
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; see also Morrissey, 408 U.S. 471 at 482 (“Subject to the conditions of his
parole, he can be gainfully employed and is free to be with family and friends and to form
the other enduring attachments of normal life.”).
Second, the risk of an erroneous deprivation of such interest is high as Petitioner’s
release was revoked without providing him a reason for revocation or giving him an
opportunity to be heard. 	See Pet. ¶¶ 18–19. 	Since DHS’s initial determination that
Petitioner should be released because he posed no danger to the community and was not a
flight risk, there is no evidence that these findings have changed. See Saravia v. Sessions,
280 F. Supp. 3d 1168, 1760 (N.D. Cal. 2017) (“Release reflects a determination by the
government that the noncitizen is not a danger to the community or a flight risk.”). Nothing
in the record suggests that Petitioner has a criminal record, has been arrested, or has
1 While it is unclear what form of parole or release Petitioner was granted, Respondents do not dispute
that Petitioner was released from custody. 	See generally Ret. 	The Court will construe his release as
release on parole or his own recognizance since neither Party has provided documentation of that prior
release.
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otherwise been in criminal trouble. See generally Pet.; Ret. “Once a noncitizen has been
released, the law prohibits federal agents from rearresting him merely because he is subject
to removal proceedings.” 	Saravia, 280 F. Supp. 3d at 1760. 	Rather, the federal agents
must be able to present evidence of materially changed circumstances—namely, evidence
that the noncitizen is in fact dangerous or has become a flight risk. . . .” Id. Respondents,
failing to address Petitioner’s Due Process argument in their response, do not point to any
material circumstances that have changed that would warrant reconsideration of his parole.
See generally Ret. “Where, as here, ‘the petitioner has not received any bond or custody
hearing,’ ‘the risk of an erroneous deprivation of liberty is high’ because neither the
government nor [Petitioner] has had an opportunity to determine whether there is any valid
basis for [his] detention.” 	Pinchi, 2025 WL 2084921, at *5 (quoting Singh v. Andrews,
No. 25-cv-801-KES-SKO (HC), 2025 WL 1918679, at *7 (E.D. Cal. July 11, 2025))
(cleaned up).
Third, the Government’s interest in detaining Petitioner without notice, reasoning,
and a hearing is “low.” See Pinchi, 2025 WL 2084921, at *5; Matute, 2025 WL 2817795,
at *6; 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,
reasoning, and a pre-deprivation hearing. See generally Ret.
Therefore, because Respondents detained Petitioner by revoking his parole in
violation of the Due Process Clause, his detention is unlawful. See, e.g., Alegria Palma v.
Larose et al., No. 25-cv-1942 BJC (MMP), slip op. at 14 (S.D. Cal. Aug. 11, 2025)
(granting a TRO based on a procedural due process challenge to a revocation of parole
without a pre-deprivation hearing); Navarro Sanchez, 2025 WL 2770629, at *5 (granting
a writ of habeas corpus releasing petitioner from custody to the conditions of her
preexisting parole on due process grounds). Because the Court finds release on due process
grounds appropriate, it need not reach Petitioner’s other claims.
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A. Attorney’s Fees
Petitioner has requested costs and attorney’s fees in this action pursuant to the Equal
Access to Justice Act (“EAJA”), 28 U.S.C. § 2412. Pet. at 13. The EAJA provides in part:
A party seeking an award of fees and other expenses shall, within
thirty days of final judgment in the action, submit to the court an
application for fees and other expenses which shows that the
party is a prevailing party and is eligible to receive an award
under this subsection, and the amount sought, including an
itemized statement from any attorney . . . representing or
appearing in behalf of the party stating the actual time expended
and 	the 	rate 	at 	which 	fees 	and 	other 	expenses 	were
computed. The party shall also allege that the position of the
United States was not substantially justified. Whether or not the
position of the United States was substantially justified shall be
determined on the basis of the record . . . which is made in the
civil action for which fees and other expenses are sought.
28 U.S.C. § 2412(d)(1)(B).
The Court will consider an application requesting reasonable fees and costs under
the EAJA that is filed within thirty days of the judgment.
CONCLUSION
Based on the foregoing, the Court GRANTS in part Petitioner’s Petition for Writ of
Habeas Corpus (ECF No. 1), and ORDERS Respondents to immediately release Petitioner
from custody subject to the conditions of his preexisting release. 	The Court ORDERS,
prior to any re-detention of Petitioner, that Petitioner is entitled to notice of the reasons for
revocation of his parole and a hearing before a neutral decision maker to determine whether
detention is warranted. The Government shall bear the burden of establishing, by clear and
convincing evidence, that Petitioner poses a danger to the community or a risk of flight.2
The Parties are ORDERED to file a Joint Status Report by March 16, 2026, confirming
2 This relief has been granted in similar matters. See, e.g., Matute, 2025 WL 2817795, at *8; Pinchi, 2025
WL 2084921, at *5; Doe v. Becerra, 787 F. Supp. 3d 1083, 1097 (E.D. Cal. 2025); Martinez Hernandez
v. Andrews, No. 25-CV-1035 JLT HBK, 2025 WL 2495767, at *14 (E.D. Cal. Aug. 28, 2025).
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that Petitioner has been released. 	Lastly, Petitioner’s attorney is directed to submit an
attorney fee application and corresponding billing records within thirty (30) days of this
Order, and Respondents are instructed to file any opposition within fourteen (14) days of
Petitioner’s attorney fee application.
IT IS SO ORDERED.
Dated: February 23, 2026
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