Benipal v. Rokosky et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Rupinder Singh Benipal,
Petitioner,
v.
Eric Rokosky, Warden, Eloy Detention
Center, et al.,
Respondents.
No. CV 26-01306 PHX RM (CDB)
REPORT AND RECOMMENDATION
A 208 048 541
TO THE HONORABLE ROSEMARY MARQUEZ:
Petitioner, who is represented by counsel, seeks relief from detention pursuant to
28 U.S.C. § 2241. Petitioner contends his detention is unlawful and in violation of his
right to due process of law. The petition is fully briefed and ready for the Court’s review.
I. Background
Petitioner is a native and citizen of India, born in Punjab in 1995. (ECF No. 1-1
at 10). Petitioner lawfully entered the United States with his mother on or about March 5,
2014, after inspection, on a B1/B2 visitor visa (ECF No. 1-1 at 5, 21). The visa
authorized Petitioner to remain in the United States until September 4, 2014. (ECF No. 1-
1 at 7). Petitioner remained in the United States after his visa expired. (Id.). On May 16,
2017, Petitioner was issued a Notice to Appear (“NTA”) by an immigration officer; the
NTA was deficient because it failed to state the date and time of the required hearing in
the San Francisco Immigration Court. (Id.). Petitioner has resided in California since his
entry into the United States. (ECF No. 1-1 at 13). Petitioner received permission to work
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in the United States (i.e., an “Employment Authorization Document” or “EAD”) and
obtained a commercial driver’s license; Petitioner was employed in the transportation
industry from June of 2021 until his detention. (ECF No. 1-1 at 7, 13).
On March 4, 2025, Petitioner filed an application to register permanent residence
or adjust status (Form I-485). (ECF No. 1-1 at 26). At the time of his arrest on January 2,
2026, Petitioner was scheduled for a March 25, 2026, hearing before an immigration
judge in San Francisco, California. (ECF No. 1-1 at 7).
On or about January 2, 2026, Petitioner was detained by Immigration and
Customs Enforcement (“ICE”) in Phoenix, Arizona, “as part of a targeted operation at
truck stops to apprehend illegal aliens operating commercial vehicles,” initiated by ICE
Enforcement and Removal Operations (“ICE ERO”). (ECF No. 1-1 at 6). During this
“consensual encounter” Petitioner advised that he had authorization to be in the United
States, and Petitioner presented his commercial driver’s license and EAD. (Id.). Petitioner
was not charged with any crime as a predicate for the encounter and a records check
revealed no criminal history. (ECF No. 1-1 at 7). Petitioner was arrested by ICE and
booked into the Phoenix ICE Field Office detention facility. (Id.). The basis for detaining
Petitioner, as stated on Form I-213 issued by ICE ERO, was the allegation that he was
removable because he had overstayed the visa issued in 2014. (ECF No. 1-1 at 6). The
Form I-213 also stated Petitioner was arrested and taken into custody because he was “a
flight risk due to having access to a motor vehicle hence being attested [sic] without a
warrant.” (ECF No. 1 at 7). Petitioner was transported to the Florence Detention Center
(ECF No. 1-1 at 8) and at some time prior to filing his § 2241 petition Petitioner was
transferred to the Eloy Detention Center.
Petitioner filed an application for asylum (Form I-589) and for withholding of
removal on February 19, 2026. (ECF No. 1-1 at 10-18). Petitioner seeks asylum or
withholding of removal (including pursuant to the Convention Against Torture) based on
his political opinion and membership in a particular social group. (ECF No. 1-1 at 14).
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In seeking asylum Petitioner alleges:
My father was involved in political activities in Punjab and had
problems with the police many times. He left India when I was a child and
later returned to India around the end of 2004. After his return he again
became involved in political activities supporting Sikh rights. He told my
mother and me that Sikhs were being mistreated and that he wanted justice
for our community. In August 2008, after participating in a protest rally,
my father was threatened by the police. The next day he met with a
suspicious accident involving a truck. He was taken to the hospital but died
there. My family believes the police were responsible for his death because
he had been repeatedly threatened by them before the incident.
(ECF No. 1-1 at 14-15). Petitioner also asserts:
After my father’s death the police started harassing my mother. They
called her to the police station many times and kept her there for long
hours. I was a child and became very afraid because we were alone and had
no protection.
In May 2011, my maternal uncle [] was beaten by police officers at
our farm. He died after falling into a water drain during the beating. ….
After this incident our entire family lived in fear. My mother constantly
worried that I would also be harmed.
In November 2012 my mother participated in a peaceful protest by
village women against drugs and police support for drug dealers. After the
protest she was taken by the police. When she returned, she was
traumatized and crying. Later she told close family members that she had
been sexually assaulted and threatened by police officers. After that she
was extremely fearful and did not want to leave me alone. In 2013 the
police came looking for my mother and threatened to take me with them.
My grandfather had to give money to them so they would leave me. After
this my mother decided we could not stay in India because our lives were
not safe.
We left our village and stayed in another place for some time. In
March 2014 my mother brought me to the United States. I was relieved
because I finally felt safe from the police.
After coming to the United States, my mother and I used to go to the
gurdwara every weekend and volunteer there. Through this experience, I
learned about the Shiromani Akali Dal (Amritsar) (SADA). The party
advocates for the rights of the Sikh community and supports the idea of
creating a separate nation for Sikhs. In addition to its political goals, SADA
also carries out many charitable activities, such as organizing medical
camps, providing free education, and distributing food to people in need. I
was deeply inspired by their dedication to serving the community.
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Eventually, on January 5, 2018, I officially joined the SADA party at the
gurdwara. … when members of the Bharatiya Janata Party (BJP) learned
about my involvement with the [] (SADA), they began searching for me.
They repeatedly asked people in my area about my whereabouts and
harassed my maternal family on several occasions.
On July 1, 2024, my mother informed me that she had received a
phone call from my grandmother. … My grandmother told us that four
members of the [] (BJP) arrived at her house in a car displaying the party’s
logo. They forcefully entered the house and began smashing household
items with a hockey stick. They then started threatening her and demanded
to know our whereabouts. When she told them that she did not know where
we were living, they angrily warned that if they discovered our location,
they would not hesitate to kill us. When neighbors began gathering outside
the house, the men fled the scene. The next morning, my grandmother went
to the police station to report the incident. However, the police refused to
file her complaint. Instead, they humiliated her and warned her not to return
to the station to report anything against the BJP.1
***
On December 29th, 2025, my grandmother called me, and I sensed
something was wrong. … after I insisted, she told me that on December
28th, 2025, she had received a phone call from an unknown number. The
caller threatened her, saying they knew I am residing in the United States
and supporting the [] (SADA), including providing funds. They warned that
if I didn’t stop supporting the SADA, I would face serious consequences if
I ever returned to India.
(ECF No. 1-1 at 21-22). Petitioner expressed a fear of harm if removed to India, due to
his participation in SADA events and his financial support for SADA programs in
Punjab. (ECF No. 1-1 at 15). Petitioner asserts:
… [I]f I go back to my home country India then my mother and I
will be killed for sure as the [] (BJP) learned about my involvement with
the [] (SADA). … On July 1, 2024 and December 29th 2025 the BJP []
threatened and attacked my maternal family. So, we request the US
government to grant our asylum because if we go back to India, the BJP
government will kill us.
(ECF No. 1-1 at 14).
1 Petitioner’s mother, who is not in custody, has applied for asylum (ECF No. 1-1 at 16).
She is scheduled for a hearing on her application for asylum on April 29, 2026. See
https://acis.eoir.justice.gov/en/caseInformation (last visited Apr. 21, 2026).
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Petitioner requested a bond hearing, pursuant to 8 C.F.R. § 1236. (ECF No. 1-1
at 2). On January 30, 2026, an Immigration Judge (“IJ”) conducted a bond hearing in the
Eloy Immigration Court. At the conclusion of the hearing the IJ issued an order denying
release on bond. The IJ’s written decision denying release states, in total:
The respondent requested a custody redetermination pursuant to 8 C.F.R.
§ 1236. After full consideration of the evidence presented, the respondent’s
request for a change in custody status is hereby ordered:
 Denied, because
The Court finds that the respondent has failed to meet his burden
of proving he is not a flight risk if released on bond, finds that
the respondent is properly detained without bond, and declines
to set bond in his case.
(ECF No. 1-1 at 2).
Per the Executive Office for Immigration Review (“EOIR”), on March 23, 2026,
Petitioner was ordered removed from the United States, and he has appealed that decision
to the Board of Immigration Appeals. See https://acis.eoir.justice.gov/en/caseInformation
(last visited Apr. 21, 2026). To date, no briefing schedule has been issued. Id.
II. Claims for Relief
The parties do not dispute that Petitioner’s detention is pursuant to 8 U.S.C.
§ 1226(a).2 Petitioner’s detention is therefore not mandatory and he was entitled to an
individualized bond hearing to determine if he should be released on bond (or otherwise)
if he was found to not be a flight risk or a danger to the community if released from
detention. An arresting immigration officer may make an initial custody determination
regarding a noncitizen; however noncitizens have the right to request a custody
“redetermination,” i.e., a bond hearing, before an immigration judge. See 8 C.F.R.
§ 1236.1(c)(8), (d)(1).3
2 The federal statute authorizing detention and removal of noncitizens who overstay a
visitor visa is 8 U.S.C. § 1227(a)(1)(C)(i), which authorizes removal of a noncitizen admitted as
a nonimmigrant who failed to maintain their nonimmigrant status. In this circumstance detention
is authorized by 8 U.S.C. § 1226 and removal procedures are governed by 8 U.S.C. § 1231.
3 The initial determination that Petitioner should be detained as a flight risk because he
had “access to a vehicle,” i.e., he was employed as a truck driver, was made at the time of
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In his § 2241 action, filed February 24, 2026, Petitioner notes the IJ’s order
denying bond does not contain a recitation or summary of the record evidence, and that
the IJ’s order does not reference or discuss Petitioner’s claim for asylum or his
application for relief from removal. (ECF No. 1 at 5). Petitioner also notes the IJ’s order
denying bond “does not reference” Petitioner’s family ties in the United States, his
authorization to work or his employment history, his community ties, or the lack of any
criminal record. (Id.). Petitioner asserts the IJ’s order “provides no reasoning that would
permit meaningful review.” (Id.). Petitioner contends:
… his continued detention violates the Due Process Clause of the
Fifth Amendment because the bond proceeding conducted on January 30,
2026 was constitutionally deficient. Although the Immigration Judge
purported to conduct a custody redetermination under 8 C.F.R. § 1236, the
resulting order contains no factual findings, no individualized analysis, and
no articulated basis for concluding that Petitioner is a flight risk.
The Fifth Amendment guarantees that civil immigration detention be
accompanied by a meaningful and individualized determination. While
bond determinations under INA § 236(a) are discretionary, due process
requires that such determinations be based on individualized findings
supported by the record and sufficient to permit meaningful judicial review.
(ECF No. 1 at 5-6). Petitioner emphasizes the IJ’s decision was not “individualized,”
noting:
29. The conclusory nature of the order is not an isolated occurrence.
In Ramirez-Hernandez v. Howard, No. 2:26-cv-00206-JCH (D. Ariz.
Jan. 16, 2026), the same Immigration Judge issued an order dated
January 22, 2026 denying bond using materially identical language. See
Exhibit D, Similar Bond Orders Post Habeas. The order contains the same
sentence, the same structure, and the same absence of factual findings.
30. Likewise, in Jimenez v. Rokowsky, No. 2:26-cv-01000-JCH (D.
Ariz. Feb. 13, 2026), the same Immigration Judge issued an order dated
February 19, 2026 denying bond using the identical language and format.
Id.
31. Again, no facts were articulated and no individualized analysis
was provided.
Petitioner’s arrest. The record does not indicate whether a warrant issued at the time of
Petitioner’s arrest at the Phoenix truck stop, and the record does not include a Notice to Appear.
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32. The repetition of materially identical language across unrelated
cases involving different individuals raises serious concerns regarding
whether individualized adjudication occurred. Due process requires more
than a template denial. Each respondent is entitled to a custody
determination based on his particular facts and circumstances.
(ECF No. 1 at 7-8).4
Petitioner “does not ask this Court to reweigh evidence or substitute its judgment
for that of the Immigration Judge. Rather, he challenges the constitutional adequacy of
the proceeding itself.” (ECF No. 1 at 8). Petitioner argues that “[a]lthough 8 U.S.C.
§ 1226(e) limits review of discretionary judgments, it does not bar review of
constitutional claims or questions of law.” (Id.). Petitioner contends that because his
… continued detention rests on a conclusory, non-individualized order
lacking articulated findings, his detention violates the Due Process Clause
of the Fifth Amendment. Habeas relief is therefore warranted. The
appropriate remedy is either immediate release or, at minimum, a new bond
hearing before a different Immigration Judge at which an individualized
determination is made and specific findings are placed on the record.
(Id.). Petitioner asks the Court to order his release or a “constitutionally adequate bond
hearing before a neutral adjudicator.” (ECF No. 1 at 2).
Respondents assert 8 U.S.C. § 1226(e) bars any challenge to “issues pertaining to
(1) the outcome of [Petitioner’s] post-habeas [sic] bond hearing and (2) request for a
more reasoned decision beyond what the IJ provided….” (ECF No. 7 at 2) (emphasis
added).5 Respondents contend:
Federal courts do not have jurisdiction to review immigration
judges’ decisions in bond proceedings and Federal courts “may not second-
4 In both Ramirez-Hernandez and Jimenez District Judge Hinderaker determined the
petitioners were members of the class certified in Bautista v. Santacruz, 813 F. Supp. 3d 1084,
(C.D. Cal. Dec. 18, 2025), and he also concluded their detention was pursuant to 8 U.S.C. § 1226
rather than § 1225. According, Judge Hinderaker ordered the petitioners be provided with a bond
hearing. Judge Hinderaker’s orders and the subsequent orders denying bond are docketed in this
matter at ECF No. 1-1 at 28-37.
5 The hearing in this matter was not “post-habeas.” This typographical error is indicative
of a boilerplate response to a “post-habeas” § 2241 petition. In previous § 2241 cases, such as
Ramirez-Hernandez and Jimenez, when the Court has ordered a a bond hearing the subsequent
hearing results in what could reasonably be described as a pro forma denial of release on bond.
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guess the immigration judge’s weighing of the evidence”. Calmo v.
Sessions, 2018 WL 2938628, *4 (N.D. Cal. 2018). …
***
8 U.S.C. § 1226(e) states in the clearest terms that this Court cannot
review an immigration judge’s independent bond decisions. Rather,
Petitioner asks for a second bite at the apple in requesting this court grant
them additional bond hearings.
(Id.).6
III. Jurisdiction
“[T]he writ of habeas corpus remains available to every individual detained within
the United States.” Hamdi v. Rumsfeld, 542 U.S. 507, 525 (2004), citing U.S. Const.,
Art. I, § 9, cl. 2. Relief is available if such a person is “in custody in violation of the
Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241(c)(3). The United
States Supreme Court has noted that the circumstance in which a habeas court’s role has
historically been “most extensive” includes “cases of … noncriminal detention, where
there had been little or no previous judicial review of the cause for detention.”
Boumediene v. Bush, 553 U.S. 723, 780-783 (2008) (finding noncitizens determined to be
enemy combatants, who were detained at Guantanamo Bay, Cuba, were entitled to the
“privilege” of habeas corpus regarding their detention).
Federal law codified at 8 U.S.C. § 1226(e) provides: “[n]o court may set aside any
action or decision by the Attorney General under this section regarding the detention of
any alien or the revocation or denial of bond or parole.” This provision “does not,
however, preclude habeas jurisdiction over constitutional claims or questions of law.”
Hernandez v. Sessions, 872 F.3d 976, 987 (9th Cir. 2017) (quotation marks and citations
6 Calmo is not directly relevant to the issue before the Court. Calmo involved a legal
permanent resident who was granted asylum and was afterwards convicted of multiple criminal
offenses. In the order denying bond, finding Calmo both a danger to the community and a flight
risk, the IJ noted Calmo’s gang membership, and convictions for battery and brandishing a
loaded firearm. See Calmo v. Sessions, No. 17-cv-07124, 2018 WL 2938628, at *1 (N.D. Cal.
June 12, 2018). Calmo appealed to the Board of Immigration Appeals, which denied relief. In
federal court Calmo asserted the IJ erred by failing to discuss, inter alia, his employment history.
Id. at *4. The court denied Calmo’s due process claim, finding he had received an individualized
determination that he posed a danger to the community, which was supported by the record; the
court did not discuss the finding that Calmo was also a flight risk. Id. at *5.
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omitted). “Claims that the discretionary bond process itself was constitutionally flawed
are cognizable in federal court on habeas because they fit comfortably within the scope of
28 U.S.C. § 2241.” Id. (internal quotations and bracketing omitted). Notably, in
Wilkinson v. Garland the Supreme Court explained that, in the context of an immigration
proceeding, the application of a legal standard “to an established set of facts is a
quintessential mixed question of law and fact” and a decision by the immigration courts
is therefore reviewable. 601 U.S. 209, 212 (2024). Accordingly, a federal district court
maintains habeas jurisdiction to review “bond hearing determinations for constitutional
claims and legal error.” Singh v. Holder, 638 F.3d 1196, 1200-01 (9th Cir. 2011). See
also Demore v. Kim, 538 U.S. 510, 516 (2003); Hernandez-Lara v. Lyons, 10 F.4th 19,
41 (1st Cir. 2021). Section 1226(e) “does not limit habeas jurisdiction over constitutional
claims or questions of law,” which the Ninth Circuit has held includes “application of law
to undisputed facts….” Singh, 638 F.3d at 1202 (internal quotations omitted). See also
Miranda v. Garland, 34 F.4th 338, 373 n.1 (4th Cir. 2022) (Urbanski, J., concurring)
(“Whether noncitizens receive due process ‘is not a matter of discretion’ and is subject to
judicial review.”); Marroquin Ambriz v. Barr, 420 F. Supp. 3d 953, 960 (N.D. Cal.
2019); Garcia v. Unknown Party, No. 24-cv-03062, 2025 WL 3173641, at *4 (D. Ariz.
Oct. 10, 2025) (finding “’questions of law’ raised in the application or interpretation of
detention statutes” can properly be considered pursuant to § 2241, quoting Leonardo v.
Crawford, 646 F.3d 1157, 1160 (9th Cir. 2011)), report and recommendation adopted,
2025 WL 3172716 (D. Ariz. Nov. 13, 2025).
The federal courts have consistently held that claims challenging the procedural
adequacy of bond hearings, including whether the standard of proof was properly applied
and whether the findings were supported by the necessary quantum of evidence, are
reviewable. See, e.g., Perez v. Wolf, 445 F. Supp. 3d 275 (2020). Accordingly, the Court
has jurisdiction to review an IJ’s discretionary bond denial where that bond denial is
challenged as legally erroneous or unconstitutional. See Kharis v. Sessions, No. 18-cv-
04800, 2018 WL 5809432 at *4 (N.D. Cal. Nov. 6, 2018) (collecting cases). See also
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Soriano v. Hernandez, ___ F. Supp. 3d ___, 2026 WL 969764, at *3 (W.D. Wash. 2026);
Perez v. Paulk, ___ F. Supp. 3d ___, 2026 WL 961948, at *2 (M.D. Ga. 2026).
According, the Court has jurisdiction to review the IJ’s discretionary denial of
bond because that denial is challenged as legally erroneous and in violation of
Petitioner’s federal constitutional right to substantive and procedural due process. See De
La Cruz Sales v. Johnson, 323 F. Supp. 3d 1131, 1139 (N.D. Cal. 2017) (concluding an
immigrant’s claims were reviewable by the district court where the bond determination
was challenged as constitutionally flawed); Obregon v. Sessions, No. 17-cv-01463, 2017
WL 1407889, at *4 (N.D. Cal. Apr. 20, 2017); Castaneda v. Aitken, No. 15-cv-01635,
2015 WL 3882755, at *7-8 (N.D. Cal. June 23, 2015). Although the Court must be
careful not to encroach upon “the IJ’s discretionary weighing of the evidence,” Slim v.
Nielson, No. 18-cv-02816, 2018 WL 4110551, at *4 (N.D. Cal. Aug. 29, 2018), the
federal district courts have concluded that § 1226(e) does not bar a federal district court
from concluding that “[t]he evidence before the IJ failed, as a matter of law, to prove
flight risk or danger.” Judulang v. Chertoff, 562 F. Supp. 2d 1119, 1127 (S.D. Cal. 2008).
See also Lemus Crispin v. Bondi, No. 26-cv-191, 2026 WL 768859, at *5 (E.D. Va.
Mar. 18, 2026) (finding the IJ improperly relied on “three facts that do not pass
constitutional muster” in holding that petitioner failed to show he is not a risk of flight”).
Notably, in a recent case the District of Rhode Island concluded a § 2241 habeas
petitioner’s challenge to an IJ’s bond decision was “precisely” the kind of case that is
appropriate for judicial review. See Garcia v. Hyde, No. 25-cv-585, 2025 WL 3466312,
at *5 (D.R.I. Dec. 3, 2025). Based on the nature of the Garcia petitioner’s challenge, the
District of Rhode Island concluded that § 1226(e) did not divest it of subject-matter
jurisdiction over the petitioner’s claim because the statute did not per se prohibit a finding
that a bond hearing must comport with the noncitizen’s right to due process of law and
federal law. Id. See also Perez Velasquez v. Bondi, No. 26-cv-01759, 2026 WL 1042479,
at *6 (S.D. Cal. Apr. 16, 2026); W.T.M. v. Bondi, No. 2:25-cv-02428, 2026 WL 262583,
at *1 (W.D. Wash. Jan. 30, 2026).
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IV. Analysis
A. The IJ’s decision does not comport with federal law
A habeas court’s review of an IJ’s determination of flight risk involves a mixed
question of law and fact and the determination is reviewed for an abuse of discretion. See
Martinez v. Clark, 124 F.4th 775, 779, 784-785 (9th Cir. 2024), citing Wilkinson, 601
U.S. at 212. See also Anyanwu v. Bondi, 25-cv-995, 2025 WL 3466910, at *4 (W.D.
Wash. Oct. 6, 2025), report and recommendation adopted, 2025 WL 3187485 (W.D.
Wash. Nov. 14, 2025). Bond may be denied after an immigration custody redetermination
hearing only if the government proves by clear and convincing evidence that the
noncitizen poses a danger to the community, or proves by a preponderance of the
evidence that the noncitizen poses a flight risk. See, e.g., Hernandez-Lara, 10 F.4th at 41.
In Jennings v. Rodriguez, 583 U.S. 281 (2018), “the Supreme Court held that [section]
1226(a) does not mandate that a clear and convincing evidence burden be placed on the
government in bond hearings, [but] it left open the question of whether the Due Process
Clause does.” Darko v. Sessions, 342 F. Supp. 3d 429, 434–35 (S.D.N.Y. 2018). The
majority of courts that have considered the question have found that due process requires
the government to bear the burden of justifying a noncitizen’s non-mandatory detention.
See, e.g., Soto-Medina v. Lynch, ___ F. Supp. 3d ___, 2026 WL 161002, at *6-8 (W.D.
Mich. 2026), citing Foucha v. Louisiana, 504 U.S. 71, 80 (1992) (requiring clear and
convincing evidence to justify civil commitment because “[f]reedom from bodily
restraint has always been at the core of the liberty protected by the Due Process Clause”),
and Addington v. Texas, 441 U.S. 418, 427 (1970) (“The individual should not be asked
to share equally with society the risk of error when the possible injury to the individual is
significantly greater than any possible harm to the state.”).
Thus, to obtain habeas relief based on an error of law or an error in
the application of law in violation of the noncitizen’s right to due process,
the noncitizen must show that the IJ failed to place the burden of proof on
the Government to either show dangerousness by clear and convincing
evidence or flight risk by a preponderance of the evidence. … The
noncitizen can make this showing either by: (1) demonstrating that the IJ
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erred because the evidence itself could not, as a matter of law, have
supported the IJ’s decision to deny bond; or (2) pointing to the IJ’s opinion
itself and showing that the IJ failed to apply the correct standard to the
facts.
Picado v. Hyde, No. 26-cv-065, 2026 WL 352691, at *6 (D.R.I. Feb. 9, 2026) (emphasis
added and internal quotations omitted).
A federal court may reverse a decision by an immigration court that a noncitizen is
a flight risk if the agency abused its discretion in so finding. Martinez, 124 F.4th at 779-
80. The following are factors an IJ considers in making determination as to flight risk:
(1) whether the noncitizen has a fixed address in the United States; (2) the noncitizen’s
length of residence in the United States; (3) the noncitizen’s family ties in the United
States, and whether they may entitle the alien to reside permanently in the United States
in the future; (4) the noncitizen’s employment history; (5) the noncitizen’s record of
appearance in court; (6) the noncitizen’s criminal record, including the extensiveness of
criminal activity, the recency of such activity, and the seriousness of the offenses; (7) the
noncitizen’s history of immigration violations; (8) any attempts by the noncitizen to flee
prosecution or otherwise escape from authorities; and (9) the noncitizen’s manner of
entry to the United States. See, e.g., Matter of R-A-V-P-, 27 I. & N. Dec. 803, 805 (B.I.A.
2020); In re Guerra, 24 I. & N. Dec. 37, 40 (B.I.A. 2006); Matter of Saelee, 22 I & N
Dec. 1258 (B.I.A. 2000). See also Osorio-Ramirez v. Hodgson, 439 F. Supp. 3d 10, 13
(D. Mass. 2020); Sinsaeng v. Lynch, No. 15-cv-0701, 2016 WL 1752953, at *2 (D. Ariz.
May 3, 2016).
Generally, IJs must sufficiently explain their reasoning to permit appellate or
judicial review of their decisions. See Barnica-Lopez v. Garland, 59 F.4th 520, 530 (1st
Cir. 2023). Of course, the IJ need not “discuss ad nauseam every piece of evidence,” Pan
v. Gonzales, 489 F.3d 80, 87 (1st Cir. 2007), or “spell out every last detail of [their]
reasoning” Rivera-Medrano v. Garland, 47 F.4th 29, 39 (1st Cir. 2022). However, at the
very least, “the logical underpinnings” of the IJ’s reasoning must be clear from the record
in order to “provide [for] intelligent review.” Lopez-Gomez v. Bondi, 154 F.4th 1, 4 (1st
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Cir. 2025). In a similar circumstance, i.e., in the context of review of the BIA’s decisions
affirming an IJ’s decision denying the reopening of proceedings, the federal Circuit
Courts of Appeals have opined that although “the BIA need not spell out every last detail
of its reasoning where the logical underpinnings are clear from the record, it is obligated
to offer more explanation when the record suggests strong arguments ... that the agency
has not considered.” Rivera-Medrano, 47 F.4th at 39 (emphasis added). Cf. Camacho v.
Whitaker, 910 F.3d 378, 381 (8th Cir. 2018) (explaining the BIA’s obligation to
“consider the issues raised and announce its decision in terms sufficient to enable a
reviewing court to perceive that it has heard and thought and not merely reacted.”).
The Ninth Circuit Court of Appeals has not directly addressed the issue presented
in this matter, i.e., an IJ’s unexplained decision denying bond because it summarily
concludes the noncitizen is a flight risk. In the context of the Board of Immigration
Appeals’ denial of motions to reopen removal proceedings, the Ninth Circuit Court of
Appeals has found the Board of Immigration Appeals (“BIA”), i.e., the Executive Office
for Immigration Review, has an “obligation” to “provide a reasoned explanation for its
actions.” Movsisian v. Ashcroft, 395 F.3d 1095, 1098 (9th Cir. 2005). The Ninth Circuit
has concluded that “[d]ue process and this court’s precedent require a minimum degree of
clarity in dispositive reasoning and in the treatment of a properly raised argument.” Su
Hwa She v. Holder, 629 F.3d 958, 963 (9th Cir. 2010). For example, in Rodriguez–Lariz
v. I.N.S., where “the BIA merely repeated petitioners’ claims and summarily dismissed
them without even purporting to engage in any substantive analysis or articulating any
reasons for its decision,” the Ninth Circuit Court of Appeals remanded for further
proceedings. 282 F.3d 1218, 1227 (9th Cir. 2002). See also Tadevosyan v. Holder, 743
F.3d 1250, 1257-58 (9th Cir. 2014). Notably, in a partial concurrence and partial dissent
in Chavez Esquivel, et al., v. Bondi, Judge Paez of the Ninth Circuit Court of Appeals
opined:
… It is undisputed that “[w]hen nothing in the record or the BIA’s
decision indicates a failure to consider all the evidence, a ‘general statement
that [the agency] considered all the evidence before [it]’ may be sufficient.”
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Cole v. Holder, 659 F.3d 762, 771 (9th Cir. 2011); accord Cruz v. Bondi,
146 F.4th 730, 739 (9th Cir. 2025). “But, where there is any indication that
the BIA did not consider all of the evidence before it, a catchall phrase
does not suffice, and the decision cannot stand. Such indications include
misstating the record and failing to mention highly probative or potentially
dispositive evidence.” Cole, 146 F.3d at 771–72. Thus, a boilerplate
statement is insufficient where the agency fails to engage with significant
evidence supporting a petitioner’s claim; rather, the agency must show its
work.
The agency did not even attempt to show its work in this case. To
emphasize, in finding Chavez Esquivel failed to establish a likelihood of
torture, the IJ and BIA failed to discuss [probative] evidence … I cannot
construe the agency’s decision—which did not mention any of this
evidence, let alone explain how it was insufficient to establish a likelihood
of torture—as in fact providing “reasoned consideration” to this evidence,
as our precedents require. Id.
We are left in the dark as to how the agency found Chavez
Esquivel’s risk of torture insufficient to qualify for CAT relief. In my view,
the better explanation for the agency’s lack of analysis of the ample
contrary evidence is that the agency simply “ignored” it or did not
adequately consider it. Cruz, 146 F.4th at 740.
Chavez Equivel, et al., v. Bondi, No. 18-70983, 2026 WL 837286, at *3-4 (9th Cir.
Mar. 26, 2026).
Moreover, in 2005 the Ninth Circuit Court of Appeals reinforced a standard that
executive branch proceedings must adhere to when depriving an individual of their
liberty:
We think it goes without saying that IJs and the BIA are not free to ignore
arguments raised by a petitioner. See Chen v. Ashcroft, 362 F.3d 611, 620
(9th Cir. 2004) … Immigration judges, although given significant
discretion, “cannot reach their decisions capriciously” and “must indicate
‘how[they] weighed the factors involved’ and ‘how [they] arrived at [their]
conclusion.’” Yepes–Prado v. INS, 10 F.3d 1363, 1370 (9th Cir. 1993),
quoting Dragon v. INS, 748 F.2d 1304, 1307 (9th Cir. 1984)).
Sagaydak v. Gonzales, 405 F.3d 1035, 1040 (9th Cir. 2005), cited in Garcia Gomez v.
Gonzales, 498 F.3d 1050, 1051 (9th Cir. 2007). See also Arrozal v. I.N.S., 159 F.3d 429,
433 (9th Cir. 1998).
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Pursuant to this line of reasoning, an immigration judge abuses their discretion if
they fail to show proper consideration of all factors and fail to state specific reasons for
denying release from detention on bond or otherwise.
Diligent research has revealed no published legal opinion from a federal Circuit
Court of Appeals with regard to an unexplained decision by an IJ denying bond based on
a determination the noncitizen is a flight risk. However, the federal district courts
considering a fact pattern similar to the instant case have generally held similarly to a
recent decision issued by the United States District Court for the District of Washington:
Petitioner has demonstrated the requisite abuse of discretion. The record
unequivocally contradicts the immigration judge’s flight-risk finding.
Petitioner has … family members in the local area [], steady employment,
and community connections developed during an over-ten-year period.
Petitioner has no criminal history, and her lack of or irregular contact with
ICE ERO during the period from 2020 to 2025 is more consistent with the
COVID pandemic and petitioner’s struggles as a victim of domestic
violence than with any risk that she will flee, particularly given her pending
application for a U Visa, as to which she will have every incentive to
cooperate and appear for future proceedings. … no record of the bond
hearing was created or provided for the Court’s review, and no explanation
of the immigration judge’s reasoning has been offered, the Court is left
without information concerning … whether the immigration judge
considered the relevant (or indeed any) factors in reaching his decision.
The Court must therefore conclude that the immigration judge’s flight-risk
finding constitutes an abuse of discretion and that petitioner’s continued
detention serves no immigration purpose. The Court will exercise its
discretion to order petitioner’s release. …
Escalante Perez v. Hernandez, No. 26-cv-0956, 2026 WL 1004559, at *2 (W.D. Wash.
Apr. 14, 2026). See also Ramos v. Barr, No. 20-CV-06622, 2020 WL 13554813, at *3
(W.D.N.Y. Dec. 29, 2020);7 infra at 23-24.
7 There is no record of the IJ’s rationale in denying bond, and instead the decision
is simply reflected by a one-page form. []. Thus, it is not clear on what basis it
was determined that Petitioner should not be released. … he has no criminal
history, and according to his documentation, he appears to have family and
friends willing to support him and provide him a residence during the pendency of
his removal proceedings. [].
Ramos v. Barr, No. 20-cv-06622, 2020 WL 13554813, at *3 (W.D.N.Y. Dec. 29, 2020).
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In reviewing the IJ’s decision the question is not whether the Court believes that
the record establishes, by a preponderance of the evidence, that Petitioner is a flight risk.
See Nguti v. Sessions, No. 16-cv-6703, 2017 WL 5891328, at *3 (W.D.N.Y. Nov. 29,
2017). Instead, the issue is whether the IJ “relied upon proof that – as a matter of law –
could not establish” that conclusion. Id. See also Judulang, 562 F. Supp. 2d at 1127. Cf.
Ortega-Rangel v. Sessions, 313 F. Supp. 3d 993, 1004-05 (N.D. Cal. 2018) (concluding a
dangerousness finding violated due process where the IJ relied solely on evidence that
did not support that conclusion); Obregon, 2017 WL 1407889, at *7 (expressing concern
that “the IJ may not have adequately considered all of the available evidence in assessing
petitioner’s present dangerousness” based on inaccuracies and gaps in the IJ’s decision).
When the habeas court “is left to speculate concerning how the immigration judge
viewed the evidence in light of the applicable factors,” the court “must conclude that the
immigration judge failed to do so, which constitutes an abuse of discretion.” Vasquez
Lopez v. Hernandez, ___ F. Supp. 3d ___, No. 26-cv-0775, 2026 WL 984151, at *3
(W.D. Wash. Apr. 13, 2026). Compare Acero v. FCI Berlin, ___ F. Supp. 3d ___, 2026
WL2026 WL 821896, at *3 (D.N.H. Mar. 25, 2026); Yinpiao Zhou v. Trump, 2026 WL
937125, at *3 (S.D. Cal. Apr. 7, 2026).8
In this matter, other than the initial determination by ICE ERO that Petitioner had
access to a vehicle, i.e., a semi-truck, there is no record evidence that the IJ could have
relied upon to find Petitioner a flight risk. The record in this matter indicates that, as a
matter of law and given the burden was on the government to establish flight risk, any
8 Here, the Immigration Judge applied the Guerra factors and denied Petitioner’s
bond on the basis that Petitioner posed a flight risk. Ret., Ex. 3. The Immigration
Judge explained that although Petitioner has lawful status and claims to be
employed, he does not have a fixed address, his proposed sponsor lives in a
different part of the country, and he has spent “a considerable time not working
and [has been] flying a drone over various facilities.” Id. Additionally, Petitioner
has violated detention center rules, which “casts doubt” on his willingness to
follow Court and immigration orders. Id., Ex. 5 at 2-3. These facts suggested that
Petitioner posed a flight risk. Id. at 3.
Yinpiao Zhou v. Trump, No. 25-cv-3503, 2026 WL 937125, at *3 (S.D. Cal. Apr. 7, 2026)
(emphasis added).
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“proof” the IJ relied upon to establish that Petitioner was a flight risk did not rise to the
level of a preponderance of the evidence. Accordingly, the IJ’s decision was legal error.
Kharis, 2018 WL 5809432, at *9.9 See also Zheng v. Rokosky, ___ F. Supp. 3d ___, 2026
WL 800203, at *6 (D.N.J. 2026). 10
9 The Court agrees with Kharis that the BIA’s decision does not mention “highly
probative” evidence on which Kharis relied. [] Notably, it treated [a notice] and
the underlying allegations as unambiguously supporting a flight risk finding,
without any discussion of Kharis’s argument and supporting evidence that [the
notice] makes it significantly more difficult to travel internationally. …
Kharis v. Sessions, No. 18-cv-04800, 2018 WL 5809432, at *9 (N.D. Cal. Nov. 6, 2018).
10 The IJ held in the “alternative” that [Zheng], although not a danger to the
community, presented a “significant flight risk for which no amount of bond
would ameliorate that flight risk.” (ECF No. 6-5 at 6). But she provided no
analysis whatsoever and gave no indication of the factual basis for her decision.
Respondents concede that the IJ “did not provide an analysis as to why she
reached that decision” and that it is “unclear” how she reached that decision.
(Hearing Tr. at 3-4). As such, it is impossible for this Court to perform any
meaningful review of the IJ’s decision and conclude that there was an
individualized determination. The transcript is devoid of any indication that the IJ
“actually consider[ed] the evidence and argument[s]” that the parties presented;
rather, she “mere[ly] rubber-stamp[ed]” the Respondents’ decision to deny bond.
Abdulai, 239 F.3d at 549; see also Goldberg, 397 U.S. at 271 [] (holding that the
decisionmaker “should state the reasons for his determination and indicate the
evidence he relied on”); Morrissey v. Brewer, 408 U.S. 471, 487 [] (1972) (same).
Due process demands more.
This case is easily distinguishable from cases where courts have upheld
the fundamental fairness of a bond determination. For example, in the case on
which Respondents rely, De Souza v. Soto, No. 25-18734, 2026 WL 102946, at *3
(D.N.J. Jan. 14, 2026), the IJ, in finding Petitioner a flight risk noted: “the lack of
evidence of a fixed address”; that “the only relative listed by Petitioner lived in
Massachusetts and Petitioner admitted that he had not lived in Massachusetts in
the past four years”; and “that Petitioner overstayed his visa by four years, waited
until two days before the bond hearing to apply for asylum, and provided no
explanation why he did not apply for asylum at any point in the past four years.”
***
Here, the IJ’s decision stands in stark contrast to these decisions as it is not
supported by any detail or reference to any factual evidence in the record. The IJ
did not provide even a minimal articulation of the basis of her decision. She
simply stated in mere conclusory fashion that Petitioner was a flight risk. That is
not an individualized assessment. This was not a fundamentally fair bond hearing.
Zheng v. Rokosky, ___ F. Supp. 3d ___, 2026 WL 800203, at *6 (D.N.J. 2026) (emphasis added).
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B. Violation of Petitioner’s due process rights
Substantive due process protects individuals from government action that
interferes with their fundamental rights, such such as the individual’s personal liberty.
See, e.g., Regino v. Staley, 133 F.4th 951, 959-60 (9th Cir. 2025). “Governmental action
that infringes a fundamental right is constitutional only if ‘the infringement is narrowly
tailored to serve a compelling state interest.’” Id. at 960. Procedural due process ensures
that the deprivation of liberty may not occur absent a finding that the infringement does
indeed serve a compelling state interest. “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 v. Davis, 533 U.S. 678, 690
(2001). The right to substantive due process thus protects noncitizens from arbitrary
confinement by the government. The Fifth Amendment’s Due Process Clause extends to
all persons, regardless of status. See, e.g., A.A.R.P. v. Trump, 605 U.S. 91, 95 (2025).
Thus noncitizens, such as Petitioner, are entitled to its protections. See id. Immigration
detention is civil detention, and civil detention violates a noncitizen’s substantive due
process rights except in certain “special and ‘narrow’ nonpunitive ‘circumstances’ …
where a special justification ... outweighs the ‘individual’s constitutionally protected
interest in avoiding physical restraint.’” Zadvydas, 533 U.S. at 690, quoting Foucha, 504
U.S. at 80. See also Kansas v. Hendricks, 521 U.S. 346, 356 (1997), cited in Ramirez v.
Noem, No. 25-cv-02136, 2025 WL 3270137, at *8 (D. Nev. Nov. 24, 2025).
A protected liberty interest may arise from a conditional release from physical
restraint, such as when Petitioner was released into the United States on a visa, and again
when the government did not pursue further removal proceedings after issuing a deficient
Notice to Appear, and again when the government gave Petitioner permission to work in
the United States. See Young v. Harper, 520 U.S. 143, 147-49 (1997). Even when a
federal statute allows the government to arrest and detain an individual, a protected
liberty interest under the Due Process Clause may entitle the individual to procedural
protections not found in the statute. See Morrissey v. Brewer, 408 U.S. 471, 482 (1972)
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(holding due process requires a hearing before the revocation of parole). To determine
whether a specific conditional release rises to the level of a protected liberty interest,
“[c]ourts have resolved the issue by comparing the specific conditional release in the case
before them with the liberty interest in parole as characterized by Morrissey.” Gonzalez-
Fuentes v. Molina, 607 F.3d 864, 887 (1st Cir. 2010) (internal quotation marks and
citation omitted). In Morrissey, the Supreme Court explained that parole “enables [the
parolee] to do a wide range of things,” including to live at home, work, and “be with
family and friends and to form the other enduring attachments of normal life.” Morrissey,
408 U.S. at 482. “Though the [government] properly subjects [the parolee] to many
restrictions not applicable to other citizens,” such as monitoring and seeking
authorization to work and travel, his “condition is very different from that of confinement
in a prison.” Id. “The parolee has relied on at least an implicit promise that parole will be
revoked only if he fails to live up to the parole conditions.” Id.
Comparing the liberty interest before the Court with the liberty interest
characterized by Morrisey, Petitioner’s release upon his entry into the United States on a
visa, and the affirmation of this liberty when the government granted him permission to
work in the United States, indicates Petitioner has a protected substantive due process
liberty interest in his continued freedom from detention. Among other freedoms, the
government allowed Petitioner to live with and provide for his mother, to work, and to
become involved in his religious and secular community in the United States while
seeking to become a lawful permanent resident of the United States. Accordingly,
Petitioner was and is entitled to procedural due process of law with regard to his liberty in
the United States.
The federal courts interpret the Due Process Clause procedural protections
afforded a noncitizen to protect their substantive due process liberty interest consistent
with the longstanding precedent recognizing these protections must be balanced with the
government’s countervailing interests in immigration enforcement. To determine whether
civil detention violates a detainee’s right to liberty the federal courts apply the three-part
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test examining procedural due process set forth in Mathews v. Eldridge, 424 U.S. 319
(1976). See Rodriguez Diaz v. Garland, 53 F.4th 1189, 1206 (9th Cir. 2022); Hernandez
v. Sessions, 872 F.3d at 993; Hernandez-Lara, 10 F.4th at 27; Velasco Lopez v. Decker,
978 F.3d 842, 851 (2d Cir. 2020). Mathews requires consideration of (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.” 424 U.S. at 335.
1. “[T]he private interest that will be affected by the official action”
The private interest affected by the official action in this matter is the most sacred
and profound right afforded by the United States Constitution, i.e., the right to liberty, to
one’s personal freedom, to be free from being placed in a de facto cage without having
committed any crime or otherwise violated or abused any agreement with or privilege
afforded by the government. Petitioner has a significant private interest in avoiding
detention, as one of the “most elemental of liberty interests” is to be free from detention.
Hamdi, 542 U.S. at 529. Additionally, the conditions of Petitioner’s detention further tip
this first factor in his favor. When assessing this factor, courts consider the conditions
under which detainees are currently held, including whether a detainee is held in
conditions indistinguishable from criminal incarceration. See Hernandez-Lara, 10 F.4th
at 28 (involving a noncitizen detainee held “alongside criminal inmates” at a county jail);
Velasco Lopez, 978 F.3d at 852 (observing a noncitizen was “not detained” but, rather,
was incarcerated in conditions identical to those imposed on criminal defendants). See
also Gunaydin v. Trump, 784 F. Supp. 3d 1175, 1187 (D. Minn. 2025).
Petitioner is detained at the CoreCivic detention facility in Eloy, Arizona. The
Eloy facility opened in 1994 and was designed to imprison people in criminal custody.
See U.S. DEP’T OF HOMELAND SEC., IMMIGR. & CUSTOMS ENFORCEMENT OFF. OF PRO.
RESP., INSPECTIONS, & DETENTION OVERSIGHT, OFF. OF DETENTION OVERSIGHT
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COMPLIANCE INSPECTION, ENFORCEMENT & REMOVAL OPERATIONS, PHX. FIELD OFF.,
ELOY DET. CENTER (2013), available at: https://www.ice.gov/doclib/foia/odo-
compliance-inspections/eloyDetentionCenterEloyAzNov5_7_2013.pdf. (last visited
Apr. 20, 2026). The facility has since evolved into an ICE detention facility. Concerns
have been raised with regard to the conditions of confinement at the Eloy Detention
Center.
Between August 2022 and May 2023, [the Office for Civil Rights
and Civil Liberties] opened 11 complaint investigations involving
noncitizens in ICE custody at Eloy. The allegations raised concerns related
to medical care, excessive lockdowns, unsanitary living conditions,
inadequate access to showers and recreation, and unhygienic food service
operations. As a result of these complaints, CRCL conducted a
multidisciplinary investigation at Eloy in September 2023 to examine the
facility and assess issues raising civil rights and civil liberties concerns
.Findings and Recommendations On April 4, 2024, CRCL issued ICE an
Onsite Recommendation Memorandum based on its investigation
conducted with the assistance of contract subject matter experts. The memo
included 24 recommendations in the general areas of conditions of
detention, medical care, mental health care, and environmental health and
safety.
U.S. DEP’T OF HOMELAND SEC., OFF. FOR CIVIL RIGHTS & CIVIL LIBERTIES, SUMMARY
OF CRCL’S RECOMMENDATIONS & ICE’S RESPONSE, ELOY DET. CENTER (2024),
available at: https://www.documentcloud.org/documents/25866584-24-1216-crcl-close-
summary-ice-eloy-detention-center-508/#document (last visited Apr. 20, 2026) (emphasis
added).
Additionally, there can be no doubt that Petitioner is experiencing many
deprivations usually present during criminal incarceration, including loss of contact with
friends and family, loss of earned income, a lack of privacy, and, most fundamentally, a
lack of freedom of movement. See Gunaydin, 784 F. Supp. 3d at 1187.
Accordingly, the first Matthews factor weighs in favor of Petitioner.
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2. “[T]he risk of an erroneous deprivation of such interest through the
procedures used, and the probable value, if any, of additional or substitute
procedural safeguards”
The process afforded Petitioner to date has not comported with his right to
procedural due process. Petitioner was initially deemed a flight risk and detained upon a
finding that he had access to a vehicle, i.e., a semi-truck that he was driving as an
employee. Petitioner was then denied bond during a proceeding which most likely
involved a pre-determined outcome, and there is no record of any evidence proffered to
support the IJ’s decision nor is there a reasoned explanation for the IJ’s decision. It is
highly unlikely that the government proffered a preponderance of evidence to support a
finding that Petitioner was a flight risk; it is unlikely Petitioner would quit his job and
leave his mother without support, and he has a substantial interest in proceeding with his
colorable claim for asylum. Petitioner has no criminal history. The Ninth Circuit has held
that when there is a substantial liberty interest at stake, the government should have the
burden of proving that an individual is a flight risk before depriving the individual of
their liberty. See Singh, 638 F.3d at 1203-04. There is no such evidence in the record.
Additionally, at this time, it is unlikely that any additional procedural measures, such as
another bond hearing conducted by the same agency, would protect Petitioner’s due
process interests.
The Court may take judicial notice of the concerns expressed by Senior United
States District Judge William Martinez, of the United States District Court for the District
of Colorado, in an order issued April 7, 2026:
Moreover, the Court is concerned that the immigration courts are not
affording immigrants fair bond hearings. Recently, this Court learned that
an Immigration Judge (“IJ”) in another case before it declined to release a
petitioner on bond for whom it had ordered a bond hearing in a summary
decision that merely stated, without any citation to specific facts:
After considering the totality of the circumstances and all relevant
factors, the Court denies bond. If DHS bears the burden, the Court
finds that DHS has met its burden to establish that the respondent is
both a danger and a flight risk. If the respondent bears the burden, the
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Court finds that the respondent has not met his burden to establish that
he is neither a danger to the community nor a significant flight risk
such that release from custody is warranted.
Quiroz Vacarias v. Noem et al., Civil Action No. 1:26-cv-0574-WJM, ECF
No. 14-1.
Based on the observations of fellow judges across the country, the
Court is far from convinced this was an isolated incident. To the contrary,
the mounting evidence that bond determination hearings conducted in
Immigration Court under § 1226(a) have preordained outcomes has become
impossible to ignore. As a result, courts across the country have, with
increasing frequency, ceased “order[ing] even initial bond hearings in cases
like this one involving unlawful detention under § 1225(b) because
Respondents’ conduct can no longer be attributed to mere negligence or
ineptitude,...and doing so would effectively allow the Government to
transform an unlawful detention into a lawful one through post-hoc
justifications.” Zheng, 2026 WL 800203, at *11 (collecting cases). Given
this reality, the Court will order Pal’s immediate release.
Pal v. Lyons, No. 26-cv-1102, 2026 WL 937962, at *4 (D. Colo. Apr. 7, 2026).
In Garcia Ortiz v. Henkey, the District of Idaho court noted:
Petitioner has also submitted evidence that Immigration Judges
across the country are systemically denying bond to alien detainees,
regardless of the weight of the evidence. For example, a former legal
counsel to Immigration and Customs Enforcement describes how
Immigration Judges in the Eastern District of Virginia have “abruptly and
uniformly ceased” granting bond in post-habeas cases. Dkt. 19-6 at 2.
Courts have echoed these concerns. The Southern District of West Virginia
noted evidence that “immigration judges who provide neutral adjudications
have been removed, and bond is systematically denied after a pro forma
hearing with a predetermined outcome.” Chavez Ochoa, 2026 WL 541144,
at *2 n.4.
No. 26-cv-00043, 2026 WL 948275, at *4 (D. Idaho Apr. 7, 2026), cited in Escalante
Perez, 2026 WL 1004559, at *2.
Footnote 1 in Judge Martinez’s Pal order cites additional cases concluding an IJ’s
decision summarily denying bond was contrary to law, i.e.:
Zheng v. Rokosky, et al., ___ F. Supp. 3d ___, 2026 WL 800203, at *6
(D.N.J. Mar. 23, 2026) (ordering immediate release after “IJ erroneously
stated that she lacked jurisdiction in direct defiance of [the] Court’s Order,
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failed to provide any explanation whatsoever for her supposed alternative
holding that Petitioner is a flight risk, and by all appearances acted as a
‘mere rubber-stamp’... for Respondents’ predetermined decision to deny
bond”); Montero-Martinez v. Mattos, et al., 2026 WL 674497, at *1-2 (D.
Nev. Mar. 9, 2026) (ordering release after petitioner’s due process rights
were violated when his bond was “revoked based on materially false
information” regarding his criminal record); Miri v. Bondi, 2026 WL
622302, at *9 (C.D. Cal. Mar. 5, 2026) (ordering release after finding IJ
abused its discretion in denying bond where they “did not explain the
reasons for denying Miri’s bond,” “did not describe which Martinez factors
were considered, if any, or what evidence was relied on,” and “did not
explain the reasons for denying Miri’s bond and the record does not
establish that the [IJ] relied on the appropriate factors”); Rodriguez v.
Greene, 2026 WL 574961, at *12 (N.D. Ohio Mar. 2, 2026) (finding due
process violation where “the IJ’s decision ... contain[ed] zero reference to
any record or arguments put forth by either party,” denied bond
“exclusively on jurisdictional grounds,” and held in the “alternative” that
the petitioner was a danger to the community and a flight risk “without
supplying any reasoning [as to] how the IJ came to such a conclusion”).
Pal, 2026 WL 937962 at *4 n.1.
The second Matthews factor weighs in favor of Petitioner.
3. “[T]he Government’s interest, including the function involved and the
fiscal and administrative burdens that the additional or substitute procedural
requirement would entail.”
The government’s interest in ensuring that noncitizens do not abscond and commit
crimes is well-established and legitimate. See Velasco Lopez, 978 F.3d at 854. However,
“any detention must bear a “reasonable relation” to the purpose of the detention.
Hernandez v. Sessions, 872 F.3d at 990, citing Zadvydas, 533 U.S. at 690. Civil detention
comports with due process only when a “special justification” outweighs the
“individual’s constitutionally protected interest in avoiding physical restraint.” Zadvydas,
533 U.S. at 690. As the Second Circuit explained in Velasco Lopez:
[T]he Government has not articulated an interest in the prolonged detention
of noncitizens who are neither dangerous nor a risk of flight. .... When the
Government incarcerates individuals it cannot show to be a poor bail risk
for prolonged periods of time, as in this case, it separates families and
removes from the community breadwinners, caregivers, parents, siblings
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and employees. The Government articulates no public interest that any of
this serves and we see none.
978 F.3d at 854-55. Indeed, common and fiscal sense suggest it is in the government’s
and the public’s interest to limit the detention of aliens who are clearly not a danger nor a
flight risk. Accordingly, the third Matthews factor weighs in favor of Petitioner.
Weighing the Matthews factors with regard to whether an immigration detainee’s
right to procedural due process was violated, in the Western District of Washington
concluded:
Here, the Court finds continued detention violates due process
because detention has no reasonable relationship to the asserted
governmental interest, which in this case is Petitioner’s removal. The Court
makes this finding as the record shows there is no rationale supporting a
finding Petitioner is a flight risk or a danger to the community, and what is
known about him cuts against such a finding. Simply ordering Respondents
provide another bond hearing does not alter the fact Petitioner is not a flight
risk or a danger and should be released. Rather, ordering another bond
hearing simply prolongs detention lacking any support. The Court is also
mindful that Petitioner will not be released upon the filing of this report and
recommendation and his detention is prolonged further pending adoption
by the assigned District Judge.
With no changes in Petitioner’s history since being before the
immigration judge over a decade prior, the Court fails to see how this
determination of Petitioner’s “danger to the community” and “flight risk” is
supported by the record. See, e.g., W.T.M. v. Bondi, 2026 WL 262583, at *4
(W.D. Wash. Jan. 30, 2026) (finding bond denial “constitutionally
deficient” where the immigration judge provided no reasoning but relied on
forms reflecting “pending” charges that were dismissed and a recalled
bench warrant to find flight risk). See also Garcia v. Hyde, 2025 WL
3466312, at *7 (D.R.I. Dec. 3, 2025) (“Rather, the question is whether the
evidence that the IJ relied on at the bond hearing could—as a matter of
law—establish that [petitioner] posed a flight risk.”). The Court finds that
this risk of erroneous deprivation weighs in Petitioner’s favor.
Zambrano-Vazquez v. Noem, No. 26-cv-122, 2026 WL 657129, at *3 (W.D. Wash.
Mar. 9, 2026).
Similarly, considering all of the Matthews factors leads to the conclusion that
Petitioner’s right to due process of law is violated by his continued detention. Apparently,
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at no point during Petitioner’s bond hearing did the IJ expressly grapple with a
substantial, well-supported argument that Petitioner was not a flight risk. The
constitutional guarantee of due process requires more. See Tadevosyan, 743 F.3d at 1258
(“Due process and [Ninth Circuit] precedent require a minimum degree of clarity in
dispositive reasoning and in the treatment of a properly raised argument.” (citation
omitted)).
Respondents have proffered no evidence showing that Petitioner is a flight risk.
The government’s interest in continuing to detain Petitioner is diminished because he has
no criminal record and he has significant ties in the United States—factors that bear
directly on flight risk and dangerousness. See, e.g., Cruz-Reyes v. Bondi, ___ F. Supp. 3d
___, 2026 WL 332315, at *7 (S.D. Tex. 2026), citing Pinchi, 2025 WL 1853763, at *2.
The government has not identified any new information specific to Petitioner’s
circumstances to undermine its own prior determination(s) that he does not pose a danger
or a flight risk if allowed to remain at large in the population during further removal
proceedings. See Saravia v. Sessions, 280 F. Supp. 3d 1168, 1176 (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.”); Valdez v. Joyce, No. 25-CV-4627, 2025 WL
1707737 at *3 & n.6 (S.D.N.Y. June 18, 2025) (“[T]he present allegation by ICE that
Petitioner is at risk of flight is directly at odds with the contrary Department of Homeland
Security (“DHS”) decision to release Petitioner on his own recognizance…”). The
government’s only apparent interest in taking Petitioner into custody, which actually
places an additional fiscal and administrative burden on the government and the citizens
of the United States, is to fulfill a quota of arrests set by the current administration. See,
e.g., Vasquez Perdomo v. Noem, 790 F. Supp. 3d 850, 868 (C.D. Cal. 2025).
V. Remedy
The federal district courts, particularly those in Florida, Texas, Arizona,
California, Washington, New York, Pennsylvania, and Minnesota, began adjudicating an
influx of § 2241 habeas cases challenging unlawful detention in October of 2025. “Since
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that time, the flood gates of habeas have seemingly unleashed unending habeas
challenges to the Government’s detention of noncitizens.” Mendoza v. Noem,
___ F. Supp. 3d ___, 26-cv-0728, 2026 WL 809441, at *9-10 (W.D. Tex. Feb. 26, 2026).
“Habeas is at its core a remedy for unlawful executive detention. The typical
remedy for such detention is, of course, release.” Munaf v. Geren, 553 U.S. 674, 693
(2008). “A federal court is vested with the largest power to control and direct the form of
judgment to be entered in cases brought up before it on habeas corpus. The court is free
to fashion the remedy as law and justice require[.]” Sanders v. Ratelle, 21 F.3d 1446,
1461 (9th Cir. 1994) (internal quotation marks and citations omitted). Generally, when
granting § 2241 petitions based on a due process violation in immigration proceedings,
the federal courts have ordered a bond hearing conducted before an immigration judge as
required by the petitioner’s right to be free of detention absent procedural due process. In
the context of noncitizens who have been in the United States with the government’s
initial acquiescence for a period of years and who are therefore detained pursuant to
§ 1226(a), the federal courts have ordered the government to bear the burden of justifying
that continued detention is necessary because the noncitizen is a flight risk or a danger to
the community, or to release the petitioner from custody under reasonable conditions of
supervision. However, in more recent cases, when presented with a significant violation
of a noncitizens’ substantive due process right to liberty and procedural due process, the
district courts have found that ordering the petitioner’s immediate release, rather than
ordering a bond hearing, is warranted. See, e.g., Cruz-Reyes, 2026 WL 332315, at *5.
In circumstances such as those presented in the instant petition, the Court could
order Petitioner’s immediate release from detention rather than order he be given another
bond hearing, given the likelihood that another bond hearing will not produce a result
commensurate with Petitioner’s constitutional right to due process. The record before the
Court indicates Petitioner is neither a flight risk nor would he be a danger to the
community if released. When a noncitizen “has demonstrated a profound liberty interest
in his freedom from civil detention and a concrete, ongoing deprivation of that liberty
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without any process provided by Respondents to justify his detention,” due process
concerns weigh heavily in favor of granting immediate release. Id., 2026 WL 332315,
at *6.
Accordingly,
IT IS RECOMMENDED that the petition for habeas relief pursuant to § 2241
(ECF No. 1) be granted, and the Court order Petitioner’s release from detention on bond,
on recognizance, or under supervision, within 48 hours of the issuance of the Court’s
order.
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), Federal Rules of
Appellate Procedure, should not be filed until entry of the District Court’s judgment.
Rule 72(b), Federal Rules of Civil Procedure, provides that the parties shall have fourteen
(14) days from the date of service of a copy of this recommendation within which to file
specific written objections with the Court. Pursuant to Rule 7.2(e)(3) of the Local Rules
of Civil Procedure for the United States District Court for the District of Arizona,
objections to the Report and Recommendation may not exceed ten (10) pages in length.
Failure to timely file objections to any factual or legal determinations of the Magistrate
Judge will be considered a waiver of a party’s right to de novo appellate consideration of
the issues. See United States v. Reyna–Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en
banc).
Dated this 23rd day of April, 2026.
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