Oyuela Tercero v. LaRose et al

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
Jorge Antonio Oyuela Tercero,
Petitioner,
v.
CHRISTOPHER J. LAROSE, Senior
Warden, Otay Mesa Detention Center;
PATRICK DIVVER, Field Office
Director, San Diego Office of Detention
and Removal, U.S. Immigration and
Customs Enforcement; TODD M.
LYONS, Acting Director, U.S.
Immigration and Customs Enforcement,
U.S. Department of Homeland Security;
and KRISTI NOEM, Secretary, U.S.
Department of Homeland Security,
Respondents.
Case No.: 26cv0325-GPC(JLB)
ORDER GRANTING PETITION
FOR WRIT OF HABEAS CORPUS
On January 20, 2026, Jorge Antonio Oyuela Tercero (“Petitioner”) filed a petition
for writ of habeas corpus pursuant to 28 U.S.C. § 2241 seeking to be released from his
unlawful detention at the Otay Mesa Detention Facility. (Dkt. No. 1, Pet.) Respondents
filed a return on January 23, 2026. (Dkt. No. 4.) Petitioner filed a traverse on January
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26, 2026. (Dkt. No. 5.) Based on the reasoning below, the Court GRANTS the petition
for writ of habeas corpus and VACATES the hearing set on January 30, 2026.
Background
Petitioner, a 44 year old Nicaraguan national and asylum seeker, entered the
United States on August 10, 2022. (Dkt. No. 1, Pet. ¶¶ 1, 2, 21.) He left Nicaragua
fleeing persecution on account of his social group membership of victims of crimes
committed by criminal gangs on June 1, 2022 in order to seek asylum, withholding of
removal, or protection under the Convention Against Torture. (Id. ¶ 21.)
Petitioner received a Notice of Appear on August 18, 2022 which was dated
August 12, 2022, before the Eloy Immigration Court. (Id. ¶ 31.) On or about August 25,
2022, he was released on bond and has complied with all conditions of his bond. (Id. ¶¶
21, 31.) He has had no criminal convictions and no departures since his arrival. (Id. ¶
21.) On or about May 23, 2025, he filed a defensive Form I-589 Application for Asylum,
Withholding of Removal, and protection under the Convention Against Torture with the
immigration court. (Id. ¶ 4.) Petitioner was re-detained on June 26, 2025 and Petitioner
has remained in Respondents’ custody. (Id. ¶ 21.)
Discussion
Petitioner asserts that his detention violates the Immigration and Nationality Act
(“INA”), Fourth Amendment, Fifth Amendment Due Process Clause, and the
Administrative Procedures Act (“APA”). (Id. ¶¶ 90-125.) He requests a writ of habeas
corpus ordering his release, or in the alternative, ordering Respondents to conduct a bond
and custody redetermination hearing within 14 days. (Dkt. No. 1, Pet. at 27.1)
In response to the order to show cause, Respondents acknowledge that pursuant to
Maldonado Bautista v. Santacruz, No. 5:25-CV-01873-SSS-BFM, --- F. Supp. 3d --, 2025
WL 3289861 (C.D. Cal. Nov. 20, 2025), amended and superseded by reconsideration by
1 Page numbers are based on the CM/ECF pagination.
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–F. Supp. 3d--, 2025 WL 3713987 (Dec. 18, 2025), Petitioner is detained under 8 U.S.C.
§ 1226(a) and is entitled to a court ordered bond hearing. (Dkt. No. 4 at 2.) In his traverse,
Petitioner argues that he is entitled to release rather than a bond hearing because the
immigration court already found that he was not a danger to the community and not a flight
risk and released him on bond on August 25, 2022. (Dkt. No. 5 at 2-3.) Therefore,
Petitioner asserts that the government’s re-detention of Petitioner without any change in
circumstance violates due process and exceeds statutory authority. (Id.)
The government concedes that Petitioner is entitled to relief in the form of a bond
hearing but Petitioner seeks immediate release. The Court addresses whether Petitioner is
entitled to immediate release.
Under the Due Process Clause of the Fifth Amendment, no person shall be “deprived
of life, liberty, or property, without due process of law.” U.S. Const. Amend. V. Indeed,
“[f]reedom from imprisonment—from government custody, detention, or other forms of
physical restraint—lies at the heart of the liberty that [the Due Process] Clause
protects.” Zadvydas v. Davis, 533 U.S. 678, 690 (2001). Due process rights apply to
noncitizens, including those whose presence in the United States is unlawful. Id. at 693.
As applied to cases like Petitioner, “even when ICE has the initial discretion to detain
or release a noncitizen pending removal proceedings, after that individual is released from
custody [he] has a protected liberty interest in remaining out of custody.” Pinchi v. Noem,
792 F. Supp. 3d 1025, 1032 (N.D. Cal. 2025); see also Doe v. Becerra, No. 2:25-CV-
00647-DJC-DMC, 2025 WL 691664, at *4 (E.D. Cal. Mar. 3, 2025); Padilla v. United
States Immigr. & Customs Enf't, 704 F. Supp. 3d 1163, 1172 (W.D. Wash. 2023); Ortiz
Donis v. Chestnut, No. 1:25-CV-01228-JLT-SAB, 2025 WL 2879514, at *11 (E.D. Cal.
Oct. 9, 2025). In fact, the government’s initial release of an individual from custody
“creates an ‘implicit promise’ that the individual’s liberty will be revoked only if they fail
to abide by the conditions of their release.” Calderon v. Kaiser, No. 25-cv-06695-AMO,
2025 WL 2430609, at *2 (N.D. Cal. Aug. 22, 2025) (quoting Morrissey v. Brewer, 408
U.S. 471, 482 (1972)). An initial release from ICE custody further reflects “a
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determination by the government that [an individual is] neither a flight risk nor a danger to
the community.” Pinchi, 792 F. Supp. 3d at 1034; Salcedo Aceros v. Kaiser, No. 25-CV-
06924-EMC (EMC), 2025 WL 2637503, *7 (N.D. Cal. Sept. 12, 2025). Thus, DHS may
generally not re-arrest a previously released noncitizen “absent a change in circumstances.”
Salcedo Aceros, 2025 WL 2637503, at *1 (citing Panosyan v. Mayorkas, 854 F. App'x 787,
788 (9th Cir. 2021) and Saravia v. Sessions, 280 F. Supp. 3d 1168, 1197 (N.D. Cal. 2017)).
Here, because Petitioner was released on bond, he maintained a protected liberty
interest in remaining out of custody.
The Court must next determine “what process is due.” Morrissey, 408 U.S. at 481.
“The constitution typically ‘requires some kind of a hearing before the State deprives a
person or liberty or property.’” G.S. v. Bostock, No. 2:25-CV-01255-JNW-TLF, 2025 WL
3014274 (W.D. Wash. Oct. 8, 2025), report and recommendation adopted sub nom. G.S.
v. Bostock, No. 2:25-CV-01255-JNW-TLF, 2025 WL 3014035 (W.D. Wash. Oct. 28,
2025) (quoting Zinermon v. Burch, 494 U.S. 113, 127 (1990) (emphasis in original)). To
determine what procedures are required by due process, the Court evaluates the three-part
test set forth in Mathews v. Eldridge, 424 U.S. 319, 334-335 (1976). See Ortiz Donnis,
2025 WL 2879514, at *12. Under Mathews, a court must consider (1) “the private interest”
at stake, (2) “the risk of an erroneous deprivation” without additional procedures and “the
probable value . . . of additional or substitute procedural safeguards,” and (3) the
“Government’s interest, including the function involved and the fiscal and administrative
burdens imposed by the additional procedures.” 424 U.S. at 335.
As to the first Mathews factor, Petitioner has a significant private interest in his
continued liberty. Thus, this factor favors Petitioner. See Pinchi, 792 F. Supp. 3d at 1034-
35; Salcedo 2025 WL 2637503, at *12; Ortiz Donis, 2025 WL 2879514, at *12.
Turning to the second Mathews factor, “it is clear that there is a significant risk that
the government will erroneously deprive [Petitioner] of that liberty interest if it does not
provide [him] with a pre-detention hearing.” Pinchi, 792 F. Supp. 3d at 1035. Where, as
here, petitioner has not received a pre-detention hearing, “‘the risk for erroneous
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deprivation [of liberty] is high’ because neither the government nor [Petitioner] has had an
opportunity to determine whether there is any valid basis for [his] detention.” Id.
(quoting Singh v. Andrews, --F. Supp. 3d--, 2025 WL 1918679 (E.D. Cal. July 11, 2025)).
Further, courts have noted that “civil immigration detention must be ‘nonpunitive in
purpose’ and bear a ‘reasonable relation’ to the authorized statutory purposes of preventing
flight and danger to the community.” G.S. v. Bostock, 2025 WL 3014274, at *8. By
releasing Petitioner on August 25, 2022 on bond, the immigration court determined that he
was neither a flight risk nor a danger to his community. See id.; Ortiz Donis, 2025 WL
2879514, at *1; Pinchi, 792 F. Supp. 3d at 1034. Petitioner asserts that he has no criminal
history and has complied with all bond conditions. (Dkt. No. 1, Pet. ¶¶ 21. 31.) Thus, the
risk of erroneous deprivation is particularly high in Petitioner’s case, as there is no evidence
of changed circumstances or that Petitioner is a danger or flight risk. Accordingly, this
factor also favors Petitioner.
Finally, the Government “has failed to show any countervailing interest against
providing a pre-detention hearing.” G.S. v. Bostock, 2025 WL 3014274, at *9; Salcedo
Aceros, 2025 WL 2637503, at *12. Indeed, “in immigration court, custody hearings are
routine and impose a minimal cost.” Singh, 2025 WL 1918679, at *8 (internal quotation
marks and citation omitted). On the other hand, the costs of immigration detention are
staggering. Hernandez v. Session, 872 F.3d 976, 996 (9th Cir. 2017). In sum, the
Government’s interest in detaining Petitioner without a hearing is low. See Singh, 2025
WL 1918679, at *8.
Each of the Mathews factors favors Petitioner. Thus, Petitioner was entitled to a pre-
deprivation bond hearing. The Government detained Petitioner, without explanation and
without notice, despite the Immigration Court’s prior determination that Petitioner was not
a flight risk and posed no danger to the community. “Under these circumstances, given
the government’s conduct, the substantial liberty interests held by [Petitioner], and the fact
that the government has no evidence and does not contend that [Petitioner] presents [a] risk
or flight or to public safety, a pre-deprivation bond hearing is warranted.” Salcedo 2025
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WL 2637503, *12. At such a hearing, the government must demonstrate to a neutral
decisionmaker by clear and convincing evidence that re-detention is necessary to prevent
danger to the community or flight. Pinchi, 792 F. Supp. 3d at 1038; see also Ortiz Donis,
2025 WL 2879514, at *15. Put simply: “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.” Ortiz Donis, 2025 WL 2879514, at *15. Because
Petitioner was not afforded a pre-deprivation bond hearing, The Court concludes that
Petitioner is entitled be released under the due process clause.
Conclusion
Accordingly, the Court GRANTS the petition for writ of habeas corpus under 28
U.S.C. § 2241 and Petitioner SHALL be released IMMEDIATELY from DHS custody
under the same conditions as his previous bond conditions.
Respondents SHALL NOT re-arrest or re-detain Petitioner absent compliance with
constitutional protections, which include, at a minimum, pre-deprivation notice of at least
seven days before a pre-deprivation hearing at which the government will bear the burden
of demonstrating by clear and convincing evidence that Petitioner is likely to flee or pose
a danger to the community if not detained.
The parties must also file a joint status report to confirm that Petitioner has been
released on or before January 29, 2026.
IT IS SO ORDERED.
Dated: January 27, 2026
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