(HC) Cruz Perez v. Wofford et al

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
YERSON JOSUE C.P.,1
Petitioner,
v.
MINGA WOFFORD, et al.,
Respondents.
Case No. 1:25-cv-01491-JLT-SAB-HC
FINDINGS AND RECOMMENDATION TO
DENY RESPONDENTS’ MOTION TO
DISMISS AND GRANT PETITION FOR
WRIT OF HABEAS CORPUS
(ECF Nos. 1, 10)
Petitioner, represented by counsel, is an immigration detainee proceeding with a petition
for writ of habeas corpus pursuant to 28 U.S.C. § 2241.
I.
BACKGROUND
Petitioner is a citizen of Nicaragua who entered the United States on November 30, 2022.
(ECF No. 1-1 at 10; ECF No. 10-1 at 6.2) Petitioner was immediately detained upon entering the
United States. (ECF No. 1-1 at 10–11.) Petitioner was detained for two days, and on December
1, 2022,3 the Department of Homeland Security (“DHS”) issued a Form I-94, Arrival/Departure
Record and Petitioner was paroled pursuant to section 212(d)(5) of the Immigration and
1 The Court partially redacts Petitioner’s name to mitigate privacy concerns, as requested by Petitioner and
recommended by the Committee on Court Administration and Case Management of the Judicial Conference of the
United States. See Memorandum Re: Privacy Concern Regarding Social Security & Immigration Opinions (May 1,
2018), https://www.uscourts.gov/sites/default/files/18-cv-l-suggestion_cacm_0.pdf.
2 Page numbers refer to ECF page numbers stamped at the top of the page.
3 The declaration of the deportation officer states that the Form I-94 was issued on November 30, 2022, citing to
Exhibit 3. (ECF No. 10-1 at 3.) However, Exhibit 3, a copy of the Form I-94, shows a date of December 1, 2022.
(ECF No. 10-1 at 14.)
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Nationality Act (“INA”), 8 U.S.C. § 1182(d)(5). (ECF No. 10-1 at 14–15.) Petitioner was
granted parole until January 30, 2023. (Id. at 14.) Upon Petitioner’s release on parole,4 Petitioner
was instructed to report to the U.S. Immigration and Customs Enforcement (“ICE”) Field Office
in San Francisco, California on January 30, 2023. (ECF No. 1-1 at 11.)
On January 30, 2023, Petitioner reported as instructed and was served with a notice to
appear (“NTA”) “[i]n removal proceedings under section 240 of the Immigration and Nationality
Act”, charging Petitioner with removability under section 212(a)(6)(A)(i) of the INA. (ECF No.
10-1 at 10–12; ECF No. 1-1 at 11.) Petitioner was also given an order of release on recognizance.
(ECF No. 1-1 at 11; ECF No. 10-1 at 17–19.)
Petitioner hired an attorney and on July 25, 2023, he applied for asylum, withholding of
removal, and protection under the Convention Against Torture (“CAT”) based on his fear of
return to his country of origin. (ECF No. 1-1 at 11.) Petitioner attended all of his immigration
court hearings, and he was awaiting his final hearing which was scheduled for 2026.5 (ECF No. 1
at 16.)
On January 30, 2024, Petitioner reported to the ICE field office as previously ordered,
and he was scheduled to check in a year later, on January 30, 2025, by email. (ECF No. 1-1 at
11.) On May 31, 2024, Petitioner was arrested, and subsequently, he was charged with: (1)
contacting a minor to commit a felony, in violation of section 288.3(a) of the California Penal
Code (“CPC”); (2) arranging a meeting with a minor for the purpose of committing a lewd or
lascivious act and going to that meeting place, in violation of CPC § 288.4(b); and (3) attempting
to engage in lewd and lascivious acts with a child under the age of 14 in violation of CPC
§ 288(a). (10-1 at 4, 32–33.) On June 5, 2024, Petitioner pleaded not guilty to the charges. On
August 20, 2024, he was released from custody on $1,000 bond. (ECF No. 1-1 at 11.)
Petitioner’s criminal proceedings remain pending. (ECF No. 1-1 at 12.)
4 The declaration of the deportation officer states: “DHS then released the Petitioner on an Order of Recognizance
(‘OREC’) based on lack of bedspace pending immigration court proceedings. Exh. 4.” (ECF No. 10-1 at 3.)
However, Exhibit 4, a copy of an order of release on recognizance, is dated January 30, 2023. (Id. at 17.)
5 After Petitioner was detained by ICE, his immigration court proceedings were transferred from San Francisco to
the Adelanto Immigration Court. His preliminary hearing was scheduled for November 26, 2025. (ECF No. 1-1 at
11.)
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On January 30, 2025, Petitioner emailed the San Francisco ICE field office as ordered.
(ECF No. 1-1 at 12, 26.) The following day, Deportation Officer (“DO”) Calvin Choi responded,
informing Petitioner to report back in a year, on January 30, 2026. However, minutes later, DO
Choi sent another email to ignore his first email and telling Petitioner to report to the San
Francisco Field Office in person on February 3, 2025. (Id. at 12, 26–27.)
On February 3, 2025, Petitioner reported to the field office as instructed. DO Choi and
another officer interviewed Petitioner, asking him about his arrest and charges. After the
interview, DO Choi informed Petitioner that since he trusted them, they would trust Petitioner.
DO Choi informed him he would not be detained, but that he needed to provide ICE with the
police report of the incident, a letter from his criminal attorney attesting that the proceedings
were pending, and his passport. (ECF No. 1-1 at 12.)
On February 18, 2025, Petitioner emailed DO Choi a copy of his passport, a letter from
his criminal attorney, and a minute order from his last criminal court hearing. (ECF No. 1-1 at
12, 35–36.) DO Choi responded, informing Petitioner that he must appear in person to turn in his
passport. (Id. at 12, 36–37.)
On February 19, 2025, Petitioner reported to the San Francisco ICE Field Office as
instructed and provided DO Choi with his passport and physical copies of the police report of the
incident, a letter from Petitioner’s criminal attorney, and the minute order from Petitioner’s last
criminal hearing. Sometime later, another ICE Officer told Petitioner that he would not be
detained, but that they would place an electronic monitor on his left foot. The ICE officer also
told Petitioner that he needed to register with the Intensive Supervision Assistance Program
(“ISAP”) for additional monitoring by going to their office in San Francisco. (ECF No. 1-1 at
12–13.)
Once Petitioner left the ICE field office, he immediately went to the ISAP office in San
Francisco and registered for the program. Upon registering with ISAP, Petitioner was given an
individual service plan that required him to report to the ISAP office every four weeks. Petitioner
would receive home visits from ISAP officials every four weeks,6 and he would receive a video
6 The home visits could occur anytime between 8 a.m. and 5 p.m., so Petitioner had to remain at home the entire
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call from his case manager.7 (ECF No. 1-1 at 13, 42.) Petitioner complied with all of his ISAP
reporting requirements. (Id. at 13.)
On March 19, 2025, Petitioner reported to the ICE field office as required. (ECF No. 1-1
at 13.) Petitioner was ordered to return on April 8, 2026. (Id.)
On September 13, 2025, Petitioner was awakened by the knocking of his landlord, who
informed Petitioner that ICE officials were outside the home asking to speak to him. Petitioner
went to his front door to speak to the ICE officers. There were three officers present. When
Petitioner confirmed his name, one ICE officer asked him to exit the home, and Petitioner was
taken into custody. Petitioner was taken to the San Francisco ICE Field Office for processing.
(ECF No. 1-1 at 9.) He was served with an administrative warrant issued the same day for his
arrest. (Id. at 10, 49.) When Petitioner asked why he was detained given nothing had changed
since he last reported into ICE and he was complying with ISAP requirements, an ICE officer
told him that it was because the current Administration now had a policy of zero tolerance for
noncitizens with arrests. On September 15, 2025, Petitioner was transferred to the Mesa Verde
ICE Processing Center in Bakersfield, California where he is currently detained. (Id. at 10.)
On November 4, 2025, Petitioner filed a petition for writ of habeas corpus and a motion
for temporary restraining order (“TRO”). (ECF Nos. 1, 2.) On November 5, 2025, the Court
denied the motion for TRO. (ECF No. 5.) On November 10, 2025, Petitioner filed a second
motion for TRO. (ECF No. 7.) On November 18, 2025, the Court denied Petitioner’s second
motion for TRO. (ECF No. 9.) On December 8, 2025, Respondents filed a motion to dismiss.
(ECF No. 10.) On December 19, 2025, Petitioner filed an opposition. (ECF No. 11.) On
December 29, 2025, Respondents filed a reply. (ECF No. 12.)
II.
DISCUSSION
In the petition, Petitioner raises the following claims for relief: (1) Petitioner’s re-arrest
without a hearing violated the Due Process Clause of the Fifth Amendment; (2) the application
day. (ECF No. 1-1 at 13.)
7 The case manager could call Petitioner at any time between 8 a.m. and 5 p.m. (ECF No. 1-1 at 13.)
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of 8 U.S.C. § 1225(b)(2) to Petitioner unlawfully mandates his continued detention and violates
the INA. (ECF No. 1 at 40–41.) Petitioner requests the Court order his immediate release on the
conditions of his prior release until DHS proves to a neutral adjudicator by clear and convincing
evidence that he is a present danger or an unmitigable flight risk, or in the alternative, order the
release of Petitioner within fourteen days unless Respondents provide Petitioner with an
individualized hearing before a neutral adjudicator to determine the necessity of his re-detention.
(Id. at 41–42.)
In the motion to dismiss, Respondents contend that Petitioner’s detention is mandatory
under § 1225(b) and “[n]othing in § 1225 permits [Petitioner]’s release or requires a bond
hearing.” (ECF No. 10 at 2.) Respondents further contend that even in Petitioner “were correct
that § 1226 applied, he would not be entitled to relief. His arrest not only was itself a
(significant) changed circumstance, but it violated the conditions of his release. His re-detention
was thus permissible under both § 1226(b) and due process principles.” (Id. at 1.)
A. Statutory Framework
An intricate statutory scheme governs the detention of noncitizens during removal
proceedings and after a final removal order is issued. “Where an alien falls within this statutory
scheme can affect whether his detention is mandatory or discretionary, as well as the kind of
review process available to him if he wishes to contest the necessity of his detention.” Prieto-
Romero v. Clark, 534 F.3d 1053, 1057 (9th Cir. 2008).
“Four statutes grant the Government authority to detain noncitizens who have been
placed in removal proceedings: 8 U.S.C. §§ 1225(b) (‘Section 1225(b)’), 1226(a) (‘Subsection
A’), 1226(c) (‘Subsection C’), and 1231(a) (‘Section 1231(a)’).” Avilez v. Garland, 69 F.4th
525, 529 (9th Cir. 2023). “Subsection A is the default detention statute for noncitizens in
removal proceedings and applies to noncitizens ‘[e]xcept as provided in [Subsection C].’”8
Avilez, 69 F.4th at 529 (alterations in original) (quoting 8 U.S.C. § 1226(a)). “[D]etention under
8 Subsection C “provides for the detention of ‘criminal aliens’ and states that ‘[t]he Attorney General shall take into
custody any alien who’ is deportable or inadmissible based on a qualifying, enumerated offense.” Avilez, 69 F.4th at
530 (alteration in original) (quoting 8 U.S.C. § 1226(c)).
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Subsection A is discretionary” and “provides for release on bond or conditional parole.” Avilez,
69 F.4th at 529. “When a person is apprehended under § 1226(a), an ICE officer makes the initial
custody determination,” and the noncitizen “will be released if he ‘demonstrate[s] to the
satisfaction of the officer that such release would not pose a danger to property or persons, and
that the alien is likely to appear for any future proceeding.’” Rodriguez Diaz v. Garland, 53 F.4th
1189, 1196 (9th Cir. 2022) (quoting 8 C.F.R. § 236.1(c)(8)).
“[A]n alien who ‘arrives in the United States,’ or ‘is present’ in this country but ‘has not
been admitted,’ is treated as ‘an applicant for admission.’” Jennings v. Rodriguez, 583 U.S. 281,
287 (2018) (quoting 8 U.S.C. § 1225(a)(1)). “Applicants for admission must ‘be inspected by
immigration officers’ to ensure that they may be admitted into the country consistent with U.S.
immigration law.” Jennings, 583 U.S. at 287 (quoting 8 U.S.C. § 1225(a)(3)). “[A]pplicants for
admission fall into one of two categories, those covered by § 1225(b)(1) and those covered by
§ 1225(b)(2).” Jennings, 583 U.S. at 287. “Both § 1225(b)(1) and § 1225(b)(2) authorize the
detention of certain aliens.” Id. As relevant here, § 1225(b)(2)(A) provides that “in the case of an
alien who is an applicant for admission, if the examining immigration officer determines that an
alien seeking admission is not clearly and beyond a doubt entitled to be admitted, the alien shall
be detained for a proceeding under section 1229a of this title.” 8 U.S.C. § 1225(b)(2)(A). Thus,
“[a]ll applicants for admission who are not processed for expedited removal [pursuant to
§ 1225(b)(1)] are placed in regular removal proceedings under § 1225(b)(2)(A). That process
generally entails a hearing before an immigration judge pursuant to § 1229a.” Innovation Law
Lab v. McAleenan, 924 F.3d 503, 507 (9th Cir. 2019). Although § 1225(b)(2) “mandates
detention of aliens throughout the completion of applicable proceedings,” they “may be
temporarily released on parole ‘for urgent humanitarian reasons or significant public benefit.’”
Jennings, 583 U.S. at 302, 288 (quoting 8 U.S.C. § 1182(d)(5)(A)). “Such parole, however, ‘shall
not be regarded as an admission of the alien,’” and “when the purpose of the parole has been
served, ‘the alien shall forthwith return or be returned to the custody from which he was paroled
and thereafter his case shall continue to be dealt with in the same manner as that of any other
applicant for admission to the United States.’” Id. at 288 (quoting 8 U.S.C. § 1182(d)(5)(A)).
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B. Applicability of § 1225(b)
Petitioner contends that DHS has repeatedly treated Petitioner as subject to
§ 1226(a), despite the fact that he is charged as present without admission in his
NTA. When he first reported into the San Francisco ICE field office on January
30, 2023, ICE issued a Form I-220A, Order of Release on Recognizance, which
provides that the document is issued pursuant to § 1226(a). Then, when Petitioner
was re-detained on September 13, 2025, ICE processed him for an administrative
warrant under § 1226.
(ECF No. 1 at 37 (citations omitted).) Respondents argue that Petitioner “is an ‘applicant for
admission’ under both the plain text of § 1225(b) and IIRIRA’s legislative history.” (ECF No. 10
at 10.) Respondents note that “[j]udges in at least ten district courts, including this one, have
adopted the Government’s position and held that § 1225(b) applies to all aliens who have not
been admitted, even if they are physically present in the United States” but “acknowledge[] that a
majority of judges (including several of this Court) have rejected that approach and applied
§ 1226 to any alien present in the United States, even if he was never lawfully admitted.” (Id. at
9.)
Although Petitioner was previously paroled pursuant to 8 U.S.C. § 1182(d)(5), the grant
of parole lasted only until January 30, 2023. (ECF No. 10-1 at 14.) On January 30, 2023,
Petitioner was served with an NTA “[i]n removal proceedings under section 240 of the
Immigration and Nationality Act.” (ECF No. 10-1 at 10.) Petitioner also was given an order of
release on recognizance, ICE Form I–220A, which states: “In accordance with section 236 of the
Immigration and Nationality Act and the applicable provisions of Title 8 of the Code of Federal
Regulations, you are being released on your own recognizance provided you comply with the
following conditions[.]” (Id. at 17.) In regard to “INS Form I–220A ‘Order of Release on
Recognizance,’” the Ninth Circuit found “the INS used the phrase ‘release on recognizance’ as
another name for ‘conditional parole’ under § 1226(a).” Ortega-Cervantes v. Gonzales, 501 F.3d
1111, 1112, 1115 (9th Cir. 2007).
“[T]he government cannot switch tracks and subject Petitioner[] to mandatory detention
under section 1225(b)(2) when the government has instead placed Petitioner[] in removal
proceedings under section 1229a and released [him] on [his] own recognizance under section
1226(a).” Valencia Zapata v. Kaiser, No. 25-CV-07492-RFL, --- F. Supp. 3d ----, 2025 WL
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2741654, at *9 (N.D. Cal. Sept. 26, 2025), appeal filed, No. 25-7472 (9th Cir. filed Nov. 26,
2025). Accord Souza v. Robbins, No. 1:25-CV-01597-DJC-JDP, 2025 WL 3263897, at *2 (E.D.
Cal. Nov. 23, 2025) (finding government cannot “‘switch tracks’ and subject a petitioner to
mandatory detention under section 1225(b)(2) where it has placed a petitioner in removal
proceedings under section 1229a and released her on her own recognizance under section
1226(a)” (citing Valencia Zapata, 2025 WL 2741654, at *9)).
“District courts around the country have rejected the government’s position that section
1225(b)(2) permits it to pursue mandatory detention against noncitizens who have not been
lawfully admitted but have been present in the country for years.” Valencia Zapata 2025 WL
2741654, at *10 (citing Salcedo Aceros v. Kaiser, No. 25-CV-06924-EMC (EMC), 2025 WL
2637503, at *8 (N.D. Cal. Sept. 12, 2025) (collecting cases)). “Here in the Eastern District of
California, recent decisions have largely rejected the government’s interpretation of Section
1225(b)(2) as applicable to all ‘applicants for admission.’” Valencia v. Chestnut, No. 1:25-cv-
01550 WBS JDP, 2025 WL 3205133, at *2 (E.D. Cal. Nov. 17, 2025) (collecting cases).
Based on the foregoing, the Court recommends finding that Petitioner is not subject to
mandatory detention under 8 U.S.C. § 1225(b).
C. Due Process
“[T]he Due Process Clause applies to all ‘persons’ within the United States, including
aliens, whether their presence here is lawful, unlawful, temporary, or permanent.” Zadvydas v.
Davis, 533 U.S. 678, 693 (2001). “Even when the government has discretion to detain an
individual, its subsequent decision to release the individual creates ‘an implicit promise’ that she
will be re-detained only if she violates the conditions of her release.” Garro Pinchi v. Noem, No.
25-CV-05632-PCP, --- F. Supp. 3d. ----, 2025 WL 3691938, at *30 (N.D. Cal. Dec. 19, 2025)
(citing Morrissey v. Brewer, 408 U.S. 471, 482 (1972)). “Other courts, including this Court, have
held similarly.” J.E.H.G. v. Chestnut, No. 1:25-CV-01673-JLT-SKO, 2025 WL 3523108, at *10
(E.D. Cal. Dec. 9, 2025) (citing Doe v. Becerra, No. 2:25-CV-00647-DJC-DMC, 2025 WL
691664, at *4 (E.D. Cal. Mar. 3, 2025)). “Accordingly, a noncitizen released from custody
pending removal proceedings has a protected liberty interest in remaining out of custody.”
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Salcedo Aceros v. Kaiser, No. 25-CV-06924-EMC (EMC), 2025 WL 2637503, at *6 (N.D. Cal.
Sept. 12, 2025). “Even assuming Respondents are correct that § 1225(b) is the applicable
detention authority for all ‘applicants for admission,’ Respondents fail to contend with the liberty
interest created by the fact that the Petitioner in this case was released on recognizance[.]”
J.E.H.G., 2025 WL 3523108, at *10. See Castillo v. Wofford, No. 1:25-CV-01586-JLT-HBK,
2025 WL 3466064, at *8 (E.D. Cal. Dec. 2, 2025) (finding Barrea-Echavarria v. Rison, 44 F.3d
1441, 1450 (9th Cir. 1995) (en banc) and Dep’t of Homeland Sec. v. Thuraissigiam, 140 S. Ct.
1959 (2020) “inapposite,” rejecting Respondents’ reliance “on the doctrine of ‘entry fiction’ to
argue that Petitioner is an inadmissible noncitizen who should be treated as if she has not entered
the country and generally has no right to procedural due process,” and “reject[ing] Respondents’
argument that ‘entry fiction’ cases guide the analysis for cases not involving an expedited
removal process”); Rocha Chavarria v. Chestnut, No. 1:25-cv-01755-DAD-AC, 2025 WL
3533606, at *3 (E.D. Cal. Dec. 9, 2025) (“Many district courts in the Ninth Circuit have found
that non-citizens paroled into the United States pursuant to § 1182(d)(5) have a liberty interest in
their continued release, entitling them to certain due process protections, the extent of which are
determined by applying the test provided in Mathews v. Eldridge, 424 U.S. 319, 335 (1976).”).
“Thus, the Court must evaluate the three-part test set forth in Mathews v. Eldridge, 424
U.S. 319, 334-335 (1976), to determine whether the procedures (or lack thereof) that have been
applied to Petitioner are sufficient to protect the liberty interest at issue.” J.E.H.G., 2025 WL
3523108, at *11.
[I]dentification of the specific dictates of due process generally requires
consideration of three distinct factors. First, the private interest that will be
affected by the official action; second, the risk of erroneous deprivation of such
interest through the procedures used, and the probable value, if any, of additional
or substitute procedural safeguards; and finally, the Government’s interest,
including the function involved and the fiscal and administrative burdens that the
additional or substitute procedural requirements would entail.
Mathews, 424 U.S. at 334.
As to private interest, it “is beyond dispute” that Petitioner’s interest here is
“fundamental.” Hernandez v. Sessions, 872 F.3d 976, 993 (9th Cir. 2017) (citing Foucha v.
Louisiana, 504 U.S. 71, 80 (1992)). “Freedom from imprisonment—from government custody,
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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. “Turning to the second factor, the risk of erroneous
deprivation of Petitioner’s liberty is high where, as here, ‘[the petitioner] has not received [and
will not receive] any bond or custody redetermination hearing.’” Kakkar v. Chestnut, No. 1:25-
CV-1627 JLT SAB, 2025 WL 3638298, at *7 (E.D. Cal. Dec. 15, 2025) (alterations in original)
(quoting A.E. v. Andrews, No. 1:25-cv-00107-KES-SKO, 2025 WL 1424382, at *5 (E.D. Cal.
May 16, 2025)). “Finally, as other courts have done, this Court concludes that the government’s
interest in detaining Petitioner without proper process is slight.” J.E.H.G., 2025 WL 3523108, at
*12. Accordingly, the Mathews factors weigh in favor of a bond or custody redetermination
hearing.
The Court now turns to whether a pre-deprivation or post-deprivation bond hearing is
appropriate based on the facts of this case.
The Supreme Court has held that “the Constitution requires some kind of a
hearing before the State deprives a person of liberty or property.” See Zinermon v.
Burch, 494 U.S. 113, 127 (1990) (emphasis in original). However, the Court also
recognized that there may be situations that urgently require arrest, in which a
prompt post-deprivation hearing is appropriate. Id. at 128 (noting there may be
“special case[s]” where a pre-deprivation hearing is impracticable); Guillermo M.
R. v. Kaiser, No. 25-CV-05436-RFL, 2025 WL 1983677, at *9 (N.D. Cal. July
17, 2025) (“absent evidence of urgent concerns, a pre-deprivation hearing is
required to satisfy due process, particularly where an individual has been released
on bond by an IJ”). The rapidly developing caselaw on this subject gives limited
guidance as to where this line should be drawn. Some courts that have addressed
detention-related habeas petitions brought by persons released with enhanced
supervision conditions have required pre-deprivation process, but in somewhat
different circumstances. In E.A.T.-B. v. Wamsley, No. C25-1192-KKE, 2025 WL
2402130, at *4 (W.D. Wash. Aug. 19, 2025), the district court ordered the release
of a petitioner arrested by ICE immediately after appearing in immigration court.
That court agreed with the petitioner that ICE’s post hoc explanation that
violations warranted his detention was pretextual, given that ICE first became
aware of petitioner’s alleged violations a few hours before his immigration
hearing, DHS did not raise those violations at the hearing or argue the petitioner
should be detained for any reason, and the petitioner was then provided multiple,
inconsistent justifications for his arrest. Id. In Arzate v. Andrews, No. 1:25-CV-
00942-KES-SKO (HC), 2025 WL 2230521, at *7 (E.D. Cal. Aug. 4, 2025),
converted to preliminary injunction sub nom, 2025 WL 2411010, at *1 (E.D. Cal.
Aug. 20, 2025), the court ordered immediate release of in immigration detainee
who had been in compliance with his conditions of release, even though he had
incurred a misdemeanor arrest while on parole, in part because no charges were
ever filed.
In contrast, this Court ordered a parole revocation hearing in Martinez Hernandez
v. Andrews, No. 1:25-CV-01035 JLT HBK, 2025 WL 2495767 (E.D. Cal. Aug.
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28, 2025), where the petitioner’s records indicated numerous violations. Though
Martinez Hernandez offered explanations for the violations and there was a
dispute of fact as to whether the violations occurred, ICE’s reliance upon those
violations was “not obviously pretexual.” Id. at * 12 (“If Respondent’s view of
the facts is correct, it is at least arguable that providing Petitioner with notice and
a pre-deprivation hearing would have been impracticable and/or would have
motivated his flight.”). As this Court noted in Martinez Hernandez:
In similar circumstances, courts have refused to release the petitioners but
have ordered timely bond hearings. Carballo v. Andrews, No. 1:25-CV-
00978-KES-EPG (HC), 2025 WL 2381464, at *8 (E.D. Cal. Aug. 15,
2025), citing Perera v. Jennings, et. al, No. 21-CV-04136-BLF, 2021 WL
2400981, at *5 (N.D. Cal. June 11, 2021); Pham v. Becerra, No. 23-CV-
01288-CRB, 2023 WL 2744397, at *6 (N.D. Cal. Mar. 31, 2023).
“[A]llowing a neutral arbiter to review the facts would significantly reduce
the risk of erroneous deprivation.” Guillermo M. R. v. Kaiser, No. 25-CV-
05436-RFL, 2025 WL 1983677, at *8 (N.D. Cal. July 17, 2025). Thus, the
Court concludes that prompt, post-deprivation process is required here.
Id.
J.E.H.G., 2025 WL 3523108, at *11–12.
The Court recommends that a post-deprivation hearing is appropriate based on the facts
of this case, and that “the burden at any such hearing [be placed] on the government to
demonstrate to a neutral decisionmaker by clear and convincing evidence that re-detention is
necessary to prevent danger to the community or flight.” J.E.H.G., 2025 WL 3523108, at *14
(citing Pinchi v. Noem, 792 F. Supp. 3d 1025, 2025 WL 2084921, at *7 (N.D. Cal. 2025)). See
J.E.H.G., 2025 WL 3523108, at *14 (“[T]he immigrant’s initial release reflected a determination
by the government that the noncitizen is not a danger to the community or a flight risk. Since it is
the government that initiated re-detention, it follows that the government should be required to
bear the burden of providing a justification for the re-detention.”). In the event Petitioner is
“determined not to be a danger to the community and not to be so great a flight risk as to require
detention without bond,” the immigration judge should consider Petitioner’s financial
circumstances and alternative conditions of release. Hernandez, 872 F.3d at 1000. “The only
potential injury the government faces is a short delay in detaining [Petitioner] if it ultimately
demonstrates to a neutral decisionmaker by clear and convincing evidence that [his] detention is
necessary to prevent danger to the community or flight.” Pinchi, 792 F. Supp. 3d at 1037–38.
///
///
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III.
RECOMMENDATION
Based on the foregoing, the Court HEREBY RECOMMENDS that:
1. The petition for writ of habeas corpus (ECF No. 1) be GRANTED;
2. Respondents’ motion to dismiss (ECF No. 10) be DENIED; and
3. Respondent be directed to provide Petitioner with an individualized hearing before an
immigration judge where the government must prove by clear and convincing evidence
that Petitioner is a flight risk or a danger to the community to justify his re-detention.
This Findings and Recommendation is submitted to the assigned United States District
Court Judge, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of the Local
Rules of Practice for the United States District Court, Eastern District of California. Within
FOURTEEN (14) days after service of the Findings and Recommendation, any party may file
written objections with the Court, limited to fifteen (15) pages in length, including any
exhibits. Such a document should be captioned “Objections to Magistrate Judge’s Findings and
Recommendation.” Replies to the objections shall be served and filed within fourteen (14) days
after service of the objections. The assigned District Judge will then review the Magistrate
Judge’s ruling pursuant to 28 U.S.C. § 636(b)(1)(C). The parties are advised that failure to file
objections within the specified time may waive the right to appeal the District Court’s order.
Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d
1391, 1394 (9th Cir. 1991)).
IT IS SO ORDERED.
Dated: January 6, 2026
STANLEY A. BOONE
United States Magistrate Judge
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