Case Name in Immigration Case - Unavailable

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
AMIT KUMAR,
Petitioner,
v.
PATRICK DIVVER, Field Office
Director of Enforcement and Removal
Operations, San Diego Field Office,
Immigration and Customs Enforcement,
et al.,
Respondents.
Case No.: 26cv0882-LL-DEB
ORDER GRANTING PETITION
FOR WRIT OF HABEAS CORPUS
UNDER 28 U.S.C. § 2241
[ECF No. 1]
Before the Court is Petitioner Amit Kumar’s Petition for Writ of Habeas Corpus
under 28 U.S.C. § 2241. ECF No. 1 (“Pet.”). Respondents filed a Response [ECF
No. 4], and Petitioner filed a Traverse [ECF No. 5]. For the reasons set forth below, the
Court GRANTS the Petition.
I. 	BACKGROUND
Petitioner is a citizen of India who entered the United States on May 7, 2023, was
apprehended and detained, and then subsequently released on his own recognizance. Pet.
¶¶ 2, 18; ECF No. 1-3 (May 10, 2023 Order of Release on Recognizance). Petitioner filed
an application for asylum, which remains pending. 	Id. 	¶ 4. Petitioner has a work
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authorization 	and 	social 	security 	number. 	Id. 	He 	has 	complied 	with 	all 	required
immigration 	court 	appointments 	and 	check-ins 	with 	Immigration 	and 	Customs
Enforcement. Id. Recently, Petitioner was arrested at his ICE check-in appointment and
placed in mandatory detention. Id. ¶¶ 5, 18.
On February 12, 2026, he filed the instant Petition alleging that his re-detention
without a hearing violates the Fifth Amendment’s Due Process Clause, and that he is
wrongfully 	detained 	under 	8 	U.S.C. 	§ 	1225(b)(2) 	in 	violation 	of 	the
Immigration and Nationality Act and bond regulations. Id. ¶¶ 51–61. He seeks a writ of
habeas corpus directing Respondents to, inter alia, release him from custody. Id. at 14.
II. 	LEGAL STANDARD
A district court may grant a writ of habeas corpus when a petitioner “is in custody
in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C.
§ 2241(c); Magana-Pizano v. I.N.S., 200 F.3d 603, 609 (9th Cir. 1999) (“28 U.S.C. § 2241
expressly permits the federal courts to grant writs of habeas corpus to aliens when those
aliens are ‘in custody in violation of the Constitution or laws or treaties of the United
States.’”). In federal habeas proceedings, the petitioner bears the burden of proving his case
by 	a 	preponderance 	of 	evidence. 	Lambert 	v. 	Blodgett, 	393 	F.3d 	943, 	970 	n.16
(9th Cir. 2004); Bellew v. Gunn, 532 F.2d 1288, 1290 (9th Cir. 1976) (citations omitted).
III. 	DISCUSSION
A. 	Detention Statue
The Court finds Petitioner is wrongfully detained under 8 U.S.C. § 1225(b). As a
noncitizen who, at the time of his detention, had been present in the United States since
May 2023 on an order of supervision while he sought asylum, Petitioner was and is subject
to 8 U.S.C. § 1226(a), which states that a noncitizen “may be arrested and detained pending
a decision on whether the [noncitizen] is to be removed from the United States.” 8 U.S.C.
§ 1226(a). By contrast, 8 U.S.C § 1225(b) applies to noncitizens arriving at the border or
who 	very 	recently 	entered 	the 	United 	States. 	See 	Beltran 	v. 	Noem,
No. 25CV2650-LL-DEB, 2025 WL 3078837, at *4–7 (S.D. Cal. Nov. 4, 2025). As the
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Supreme Court explained, the government may “detain certain aliens seeking admission
into the country under §§ 1225(b)(1) and (b)(2),” while § 1226(a) allows the government
to 	“detain 	certain 	aliens 	already 	in 	the 	county 	pending 	the 	outcome 	of 	removal
proceedings.” Jennings v. Rodriguez, 583 U.S. 281, 289 (2018) (emphasis added). The
Court adopts its reasoning stated in Beltran v. Noem on this issue. Id. at *4–7.
B. 	Due Process Clause
The Fifth Amendment guarantees that no person shall be “deprived of life, liberty,
or property, without due process of law.” U.S. Const. amend. V. “It is well established that
the Fifth Amendment entitles aliens to due process of law in deportation proceedings.”
Demore v. Kim, 538 U.S. 510, 523 (2003) (citing Reno v. Flores, 507 U.S. 292, 306
(1993)). “An elementary and fundamental requirement of due process in any proceeding
which is to be accorded finality is notice reasonably calculated, under all the circumstances,
to apprise interested parties of the pendency of the action and afford them an opportunity
to present their objections.” Mullane v. Cent. Hanover Bank & Tr. Co., 339 U.S. 306, 314
(1950) (citations omitted). The Due Process Clause generally “requires some kind of a
hearing before the State deprives a person of liberty or property.” Zinermon v. Burch, 494
U.S. 113, 127 (1990). “The fundamental requirement of due process is the opportunity to
be heard at a meaningful time and in a meaningful manner.” Mathews v. Eldridge, 424 U.S.
319, 333 (1976) (internal quotation marks and citation omitted).
The Court finds that having been previously released on an order of release on
recognizance, Petitioner has a protected liberty interest in remaining free from detention.
“Even individuals who face significant constraints on their liberty or over whose liberty
the government wields significant discretion retain a protected interest in their liberty.”
Pinchi v. Noem, 792 F. Supp. 3d 1025, 1032 (N.D. Cal. 2025) (citations omitted). Although
the initial decision to detain or release an individual may be within the government’s
discretion, “the government’s decision to release an individual from custody creates ‘an
implicit promise,’ upon which that individual may rely, that their liberty ‘will be revoked
/ / /
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only if [they] fail[] to live up to the . . . conditions [of release].’” Id. (quoting Morrissey v.
Brewer, 408 U.S. 471, 482 (1972)) (alterations in original).
As Petitioner has a protected liberty interest, the Due Process Clause requires
procedural protections before he can be deprived of that interest. See Mathews, 424 U.S. at
334–35. To determine which procedures are constitutionally sufficient to satisfy the Due
Process Clause, the Court considers the following factors: (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 [g]overnment’s interest, including the function
involved and the fiscal and administrative burdens that the additional or substitute
procedural requirement would entail.” Id. at 335.
The Court finds that all three factors support a finding that the government’s
revocation of Petitioner’s order of supervision without notification, reasoning, or an
opportunity to be heard, denied Petitioner of his due process rights. First, as discussed
above, Petitioner has a significant liberty interest in remaining out of custody pursuant to
his order of release. See Pinchi, 792 F. Supp. 3d at 1032 (“Thus, even when ICE has the
initial discretion to detain or release a noncitizen pending removal proceedings, after that
individual is released from custody she has a protected liberty interest in remaining out of
custody.” (citations omitted)). Freedom from detention is a fundamental part of due process
protection. See Hernandez v. Sessions, 872 F.3d 976, 993 (9th Cir. 2017) (“[F]reedom from
imprisonment is at the ‘core of the liberty protected by the Due Process Clause.’” (quoting
Foucha v. Louisiana, 504 U.S. 71, 80 (1992))).
Second, the risk of an erroneous deprivation of such interest is high as Petitioner’s
order of release was revoked without providing him a reason for revocation or giving him
an opportunity to be heard. Since the initial determination that Petitioner should be released
on his own recognizance because he posed no danger to the community and was not a flight
risk, there is no evidence that these findings have changed. See Saravia v. Sessions, 280 F.
Supp. 3d 1168, 1176 (N.D. Cal. 2017), aff’d sub nom. Saravia for A.H. v. Sessions,
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905 F.3d 1137 (9th Cir. 2018) (“Release reflects a determination by the government that
the noncitizen is not a danger to the community or a flight risk.”). There is no indication
that Petitioner has failed to abide by the conditions of his release. “Once a noncitizen has
been released, the law prohibits federal agents from rearresting him merely because he is
subject to removal proceedings.” Id. “Rather, the federal agents must be able to present
evidence of materially changed circumstances—namely, evidence that the noncitizen is in
fact dangerous or has become a flight risk . . . .” Id. The risk of erroneous deprivation of
Petitioner’s liberty is high because neither the government nor Petitioner has had an
opportunity to determine whether there is any valid basis for his detention. Pinchi,
792 F. Supp. 3d at 1035 (citation omitted). It follows that the probable value of additional
procedural safeguards, such as notice and a pre-deprivation hearing, is also high.
Third, the government’s interest in detaining Petitioner without notice, reasoning,
and a hearing is low. See Pinchi, 792 F. Supp. 3d at 1036 (“[T]he government has
articulated no legitimate interest that would support arresting [petitioner] without a pre-
detention hearing.”); Alvarenga Matute v. Wofford, 807 F. Supp. 3d 1120, 1130 (E.D. Cal.
2025); Ortega v. Bonnar, 415 F. Supp. 3d 963, 970 (N.D. Cal. 2019) (“If the government
wishes to re-arrest [petitioner] at any point, it has the power to take steps toward doing so;
but its interest in doing so without a hearing is low.”). There is also no indication that
providing proper notice, reasoning, and a pre-deprivation hearing would be fiscally or
administratively burdensome on the government. See Pinchi, 792 F. Supp. 3d at 1036 (“In
immigration court, custody hearings are routine and impose a minimal cost.” (quoting
Singh v. Andrews, 803 F. Supp. 3d 1035, 1048 (E.D. Cal. 2025))).
Therefore, because Respondents detained Petitioner by revoking his order of release
without notice or a pre-deprivation hearing in violation of the Due Process Clause, his
detention is unlawful. See, e.g., Sanchez v. LaRose, No. 25-CV-2396-JES-MMP, 2025 WL
2770629, at *4 (S.D. Cal. Sept. 26, 2025) (finding the petitioner’s parole was revoked
without notice and a hearing and without a showing of a change of circumstances, thus
violating her due process rights and rendering her detention unlawful). The proper remedy
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for the unlawful detention is Petitioner’s immediate release subject only to the conditions
of his preexisting order of release on recognizance See Noori v. LaRose, 807 F. Supp. 3d
1146, 1156 (S.D. Cal. 2025) (finding DHS violated the petitioner’s due process rights by
revoking his parole without notice or a hearing and ordering his immediate release);
Sanchez, 2025 WL 2770629, at *5 (same); Ortega, 415 F. Supp. 3d at 970 (ordering
immediate release after the petitioner was detained while out on bond without notice or
pre-deprivation hearing).
Accordingly, the Court GRANTS Petitioner’s Petition. 1
IV. 	CONCLUSION
For the reasons above, the Court GRANTS Petitioner’s Petition for Writ of Habeas
Corpus [ECF No. 1] and ORDERS as follows:
1. 	Respondents shall immediately release Petitioner from custody subject only
to the conditions of his preexisting order of release on recognizance [ECF No. 1-3].
2. 	Prior to any re-detention of Petitioner, he is entitled to notice of the reasons
for revocation of his parole and a pre-deprivation hearing before a neutral immigration
judge to determine whether detention is warranted. At such a hearing, the government shall
bear the burden of establishing, by clear and convincing evidence, that Petitioner poses a
danger to the community or a risk of flight. See Martinez Hernandez v. Andrews,
No. 1:25-CV-01035 JLT HBK, 2025 WL 2495767, at *14 (E.D. Cal. Aug. 28, 2025)
(finding that the petitioner’s initial release “reflected a determination by the government
that the noncitizen is not a danger to the community or a flight risk” and so if the
government initiates re-detention, “it follows that the government should be required to
bear the burden of providing a justification for the re-detention”); Pinchi, 792 F. Supp. 3d
at 1038 (ordering that before the petitioner can be re-detained, she must be provided with
a pre-detention bond hearing before a neutral immigration judge and that she may not be
1 In the Petition’s prayer for relief [Pet. at 14], Petitioner requests attorney’s fees and costs
under the Equal Access to Justice Act, which the Court DENIES without prejudice.
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detained “unless the government demonstrates at such a bond hearing, by clear and
convincing evidence, that she is a flight risk or a danger to the community and that no
conditions other than her detention would be sufficient to prevent such harms”).
3. 	The Clerk of Court shall enter judgment in Petitioner's favor and close this
case.
IT IS SO ORDERED.
Dated: March 13, 2026
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