Himanshu v. Casey et al

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
HIMANSHU HIMANSHU,
Petitioner,
v.
JEREMY CASEY, Warden of the
Imperial Regional Detention Center, et al.,
Respondents.
Case No.: 26-CV-951 JLS (BLM)
ORDER (1) GRANTING IN PART
PETITION FOR WRIT OF HABEAS
CORPUS AND (2) DENYING AS
MOOT MOTION FOR
TEMPORARY RESTRAINING
ORER
(ECF Nos. 1, 2)
Presently before the Court are Himanshu Himanshu’s Petition for Writ of Habeas
Corpus pursuant to 28 U.S.C. § 2241 (“Pet.,” ECF No. 1) and Motion for Temporary
Restraining Order (“TRO,” ECF No. 2). Also before the Court is Respondents’ Return to
Petition for Writ of Habeas Corpus (“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 (ECF No. 1) and DENIES AS MOOT the Motion for
Temporary Restraining Order (ECF No. 2).
BACKGROUND
Petitioner, a citizen of India, alleges that he has been detained by the United States
Department of Homeland Security’s (“DHS”) Immigration and Customs Enforcement
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(“ICE”) division at the Imperial Regional Detention Center since February 8, 2026. Pet.
at 2. Petitioner submits that he entered the United States on May 19, 2023, and was later
released on his own recognizance.1 Id. at 1. 	As a condition of release, Petitioner was
placed into Alternatives to Detention (“ATD”), which required regular check-ins with ICE.
Id. Respondents thereafter initiated removal proceedings against Petitioner. Id. Petitioner
obtained lawful employment as a commercial truck driver and complied with the
conditions of his release. 	Id. at 2. 	On February 8, 2026, ICE stopped Petitioner at a
highway checkpoint and re-detained him “without any legal cause, notice, or allegation of
wrongdoing.” Id. Petitioner alleges that his detention violates the Due Process Clause of
the Fifth Amendment and the Immigration and Nationality Act. See generally id.
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).
/ / /
1 The Notice to Appear issued to Petitioner, see Pet., Ex. A, states that Petitioner “arrived in the United
States . . . on or about May 19, 2023,” and “w[as] not then admitted or paroled after inspection by an
Immigration Officer.” However, it appears that on May 21, 2023, Petitioner was “[r]eleased on OREC.”
Id., Ex. B.
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DISCUSSION
I. 	Jurisdiction
Respondent argues that this Court lacks jurisdiction under 8 U.S.C. § 1252(g)
because Petitioner’s claims arise from DHS’s decision to commence removal proceedings.
Ret. at 3–4. The Court disagrees.
Section 1252(g) provides that “no court shall have jurisdiction to hear any cause or
claim by or on behalf of any alien arising from the decision or action by the Attorney
General to commence proceedings, adjudicate cases, or execute removal orders against any
alien under this chapter.” 8 U.S.C. § 1252(g). Section 1252(g) should be read “narrowly”
as to apply “only to three discrete actions that the Attorney General may take: her ‘decision
or action’ to ‘commence proceedings, adjudicate cases, or execute removal orders.’”
Ibarra-Perez v. United States, No. 24-631, 2025 WL 2461663, at *6 (9th Cir. Aug. 27,
2025) (quoting Reno v. American-Arab Anti-Discrimination Committee, 525 U.S. 471, 482,
487 (1999)). Section 1252(g) “does not prohibit challenges to unlawful practices merely
because they are in some fashion connected to removal orders.” Id. at *7. Section 1252(g)
does not bar due process claims. Walters v. Reno, 145 F.3d 1032, 1052–53 (9th Cir. 1998)
(finding that the petitioners’ objective was not to review the merits of their proceeding, but
rather “to enforce their constitutional rights to due process in the context of those
proceedings”).
Here, Petitioner does not challenge the decision to commence removal proceedings
or any act to adjudicate or execute a removal order. Rather, Petitioner is challenging the
revocation of his release without justification or consideration of his individualized
circumstances. See generally Pet. Petitioner is enforcing his “constitutional rights to due
process in the context of the removal proceedings—not the legitimacy of the removal
proceedings or any removal order.” Garcia v. Noem, No. 25-CV-2180-DMS-MMP, 2025
WL 2549431, at *4 (S.D. Cal. Sept. 3, 2025). Therefore, § 1252(g) does not strip the Court
of jurisdiction.
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II. 	Due Process
Petitioner argues that the summary revocation of his release on his own recognizance
without justification or consideration of his individualized circumstances violates the Due
Process Clause. Pet. at 4. The Court agrees.
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
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 she 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 contend that as an “applicant for admission” under 8 U.S.C. § 1225
Petitioner is subject to mandatory detention and therefore his alleged statutory and
constitutional violations fail. Ret. at 4. 	The Court disagrees. 	Petitioner was released on
his own recognizance upon entering the United States. Pet. at 3. Petitioner is not a newly
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arrived noncitizen seeking admission at the border, as Petitioner has been in the United
States since 2023. Id. Petitioner is not merely an “applicant for admission” at the border
with minimal due process rights; Petitioner 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
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. First, as discussed above, Petitioner has
a significant liberty interest in remaining out of custody pursuant to his release. “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
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U.S. at 690. 	Petitioner has an interest in remaining continuing to work as a commercial
truck driver. See Morrissey, 408 U.S. 471 at 482 (“Subject to the conditions of [her] parole,
[she] 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 on his own recognizance was revoked without providing him a reason for
revocation or giving him an opportunity to be heard. Pet. at 4. Since DHS’s determination
that Petitioner should be granted release 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.”).
Petitioner has no criminal record, has not been arrested or otherwise in criminal trouble,
and works as a truck driver. 	Pet. at 4. “Once a noncitizen has been released, the law
prohibits federal agents from rearresting [her] merely because [she] is subject to removal
proceedings. 	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. . . .” Saravia, 280 F. Supp. 3d at 1760. 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 deferred action
status. 	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 her 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
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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 release on his
recognizance 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. 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).
III. 	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 10. 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.
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CONCLUSION
Based on the foregoing, the Court GRANTS IN PART Petitioner’s Petition for Writ
of Habeas Corpus (ECF No. 1), DENIES AS MOOT Petitioner’s Motion for Temporary
Restraining Order (ECF No. 2), and ORDERS Respondents to immediately release
Petitioner from custody subject to the conditions of his preexisting release with no
additional requirements. The Court ORDERS, prior to any re-detention of Petitioner, that
Petitioner is entitled to notice of the reasons for revocation of his release 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 20, 2026, confirming 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: March 4, 2026
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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