Gamarro Gamarro v. Casey et al

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
LEOVALDO JOSE GAMARRO
GAMARRO,
Petitioner,
v.
JEREMY CASEY, Warden, Imperial
Regional Detention Facility; GREGORY
J. ARCHAMBEAULT, Acting Field
Office Director, United States
Immigration and Customs Enforcement,
ICE San Diego Field Office; TODD M.
LYONS, Acting Director, United States
Immigration and Customs Enforcement;
KRISTI NOEM, Secretary, United States
Department of Homeland Security; and
PAMELA JO BONDI, Attorney
General,
Respondents.
Case No.: 26-cv-0650-GPC-DEB
ORDER GRANTING PETITION
FOR WRIT OF HABEAS CORPUS.
[ECF No. 1]
Before the Court is Petitioner Leovaldo Jose Gamarro Gamarro’s petition for a writ
of habeas corpus. ECF No. 1. For the reasons outlined below, the petition is GRANTED
and Respondents are ORDERED to release Petitioner from custody IMMEDIATELY.
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BACKGROUND
Petitioner is a citizen of Venezuela. ECF No. 1, ¶ 3. Petitioner entered the United
States on August 22, 2022. Id. He was briefly detained and placed in full removal
proceedings under 8 U.S.C. § 1229(a). Id. Petitioner was released on his own recognizance
on August 24, 2022. Id. ¶ 96; see also ECF No. 5, at 3 n.1.
After his release from custody, Petitioner relocated to Dallas, Texas, where he
resides with his partner and child. Id. ¶ 4. On June 28, 2023, Petitioner filed a Form I-589
Application for Asylum and Withholding of Removal with the United States Immigration
Court in Dallas, Texas. Id. ¶ 4. On September 18, 2024, Petitioner filed a Form I-821
Application for Temporary Protected Status (“TPS”), which the Department of Homeland
Security (“DHS”) approved on December 12, 2024. Id. ¶¶64-65. DHS has also granted
Petitioner employment authorization. Id. ¶ 65. Petitioner has complied with directives of
DHS to appear for required appointments with the agency and has no criminal history. Id.
¶ 5.
On October 8, 2025, United States Immigration and Customs Enforcement (“ICE”)
detained Petitioner during a routine supervision appointment at the ICE Dallas Field Office
in Dallas, Texas. Id. ¶ 6. He was transported to Prairieland Detention Center in Alvarado,
Texas and later transferred to the Imperial Regional Detention Facility in Calexico,
California. Id. Petitioner remains in ICE custody. Id. ¶ 7.
On February 2, 2026, Petitioner filed a petition for writ of habeas corpus requesting
his immediate release from custody. Id. at 73.1 Specifically, Petitioner argues that his
current detention violates the Immigration Nationality Act (INA) and his Fifth Amendment
substantive and procedural due process rights Id. ¶¶ 77-115.
1 Page numbers are based on the CM/ECF pagination
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On February 6, 2026, Respondents filed a response to the petition. ECF No. 5.
Petitioner was given until the end of February 10, 2026, to file a traverse. See ECF No. 3.
While the Court acknowledges that the time to file a traverse has not yet passed, upon
review of the Petition and Response, the Court finds that additional argument is not
necessary to inform its decision.
LEGAL STANDARD
Under 28 U.S.C. § 2241, a writ of habeas corpus may be granted to any petitioner
who demonstrates that she is “in custody in violation of the Constitution or laws or treaties
of the United States.” 28 U.S.C. § 2241(c)(3); see Rasul v. Bush, 542 U.S. 466, 473 (2004).
The writ of habeas corpus is “available to every individual detained within the United
States.” Hamdi v. Rumsfeld, 542 U.S. 507, 525 (2004).
As explained by the Supreme Court, “the essence of habeas corpus is an attack by a
person in custody upon the legality of that custody, and . . . the traditional function of the
writ is to secure release from illegal custody.” Preiser v. Rodriguez, 411 U.S. 475, 484
(1973); Pinson v. Carvajal, 69 F.4th 1059, 1067 (9th Cir. 2023) (habeas actions limited to
challenges of the legality or duration of confinement). A petitioner bears the burden of
demonstrating that “[h]e is in custody in violation of the Constitution or laws or treaties of
the United States.” See Espinoza v. Sabol, 558 F.3d 83, 89 (1st Cir. 2009).
DISCUSSION
Petitioner argues that his re-detention without cause violates the Due Process Clause
of the Fifth Amendment. The Court agrees.
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.
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As applied to cases like Petitioner’s: “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. U.S.
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 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); Saravia v. Sessions, 280 F. Supp. 3d 1168, 1197 (N.D. Cal. 2017)).
Here, because Petitioner was previously released from DHS custody on his own
recognizance, ECF No. 1, ¶ 96; ECF No. 5, at 3 n.1, 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)). To determine what
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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 Salcedo 2025 WL 2637503, *12;
Ortiz Donis, 2025 WL 2879514, at *12; Pinchi, 792 F. Supp. 3d at 1034-35.
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 any bond or custody hearing upon his re-detention, “‘the
risk for erroneous deprivation [of liberty] is high’ because neither the government nor
[Petitioner] has had an opportunity to determine whether there is any valid basis for [his]
detention.” Id. (quoting Singh v. Andrews, No. 1:25-CV-00801, 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 in 2022, immigration officers 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. Respondents have not alleged that there
has been a change in circumstance since Petitioner’s 2022 release. See ECF No. 5. 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.
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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). There is also no concern that a hearing will delay or obstruct
Respondents efforts to remove Petitioner, as Petitioner has already been placed in full
removal proceedings. See ECF No. 1, ¶ 3; G.S. v. Bostock, 2025 WL 3014274, at *9;
Salcedo Aceros, 2025 WL 2637503, at *12. In sum, the Government’s interest in detaining
Petitioner without a hearing is low. 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 its own 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 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.
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Immediate release is the appropriate remedy in this case.2 Respondents, in their
response to the petition, acknowledge that Petitioner is detained subject to 8 U.S.C. § 1226
rather than § 1225, and concede that Petitioner is entitled to an order from this Court
requiring a bond hearing. ECF No. 5, at 3. However, for the reasons discussed above, a
bond hearing is insufficient to cure the due process violations faced by Petitioner.
Respondents have failed to address Petitioner’s due process arguments or acknowledge
that Petitioner has been re-detained without cause after being released on his own
recognizance. Accordingly, the Court is not persuaded by Respondents’ arguments and
instead orders Petitioner’s release.
CONCLUSION
Based on the reasoning above, the Court ORDERS:
1. Petitioner’s Petition for Writ of Habeas Corpus is GRANTED as to Petitioner’s
requested release from custody.
2. Because the government has no evidence that Petitioner poses a flight risk or
danger to the community, Petitioner SHALL be released IMMEDIATELY
from DHS custody. Respondents SHALL NOT impose any additional
2 Having reached this conclusion on Petitioner’s due process claims, the Court declines to
fully evaluate Petitioner’s INA claims regarding his Temporary Protected Status. ECF No.
1, ¶¶ 77-88.
However, the Court notes that The Ninth Circuit recently affirmed a district court’s finding
that Respondent Secretary Noem exceeded her statutory authority by revoking TPS
protections for Venezuelans and Haitains. See Nat'l TPS All. v. Noem, --- F.4th ---, 2026
WL 226573 at *1 (9th Cir. 2026) (“The Secretary’s actions fundamentally contradict
Congress's statutory design, and her assertion of a raw, unchecked power to vacate a
country’s TPS is irreconcilable with the plain language of the statute.”). Although the Court
does not discuss Petitioner’s TPS claims in this Order, the Court finds that recent Ninth
Circuit authority supports Petitioner’s position.
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restrictions on him, such as electronic monitoring, unless that is determined to be
necessary at a later custody hearing.
3. 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.3
IT IS SO ORDERED.
Dated: February 10, 2026
3 In his prayer for relief, Petitioner requests an award of costs and reasonable attorney’s
fees pursuant to the Equal Access to Justice Act. ECF No. 1, at 74. That request is DENIED
without prejudice. Petitioner’s counsel may submit an appropriate EAJA fee application
within 30 days of the issuance of this Order.
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