2:26-cv-02397•Milanes-Perez v. Mullin et al
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Alexander Milanes-Perez, Petitioner, v. Markwayne Mullin, et al., Respondents. No. CV-26-02397-PHX-SMB (ASB) REPORT AND RECOMMENDATION TO THE HONORABLE SUSAN M. BRNOVICH, UNITED STATES DISTRICT JUDGE: Petitioner Alexander Milanes-Perez filed, through counsel, a Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 (Doc. 1) on April 8, 2026.1 Petitioner is detained at Eloy Detention Center and seeks release from immigration custody and a restoration to the same conditions of release previously imposed by the Department of Homeland Security (“DHS”). (Id. at 11.) For the reasons that follow, undersigned will recommend the Petition be denied in part and granted in part. I. PROCEDURAL HISTORY AND BACKGROUND The facts before this Court appear largely undisputed. (See Docs. 1, 9, 10.) Petitioner is a citizen of Cuba who entered the United States on or about November 1, 2021, through the Calexico West Port of Entry. (Doc. 1 at 5.) Petitioner was initially detained at the Imperial Regional Detention Facility and was released from Immigration 1 Citation to the record indicates documents as they are displayed in the District of Arizona’s official Court electronic document filing system under Case No. CV-26-02397-PHX-SMB (ASB). Case 2:26-cv-02397-SMB Document 11 Filed 05/15/26 Page 1 of 12
- 2 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 and Customs Enforcement (“ICE”) custody on December 13, 2021. (Doc. 1 at 5.) Petitioner was released from ICE custody on the condition of “discretionary parole (humanitarian).” (Doc. 1-1 at 28.) While released, Petitioner filed a Form I-485 (Application to Register Permanent Residence or Adjust Status) under the Cuban Adjustment Act, which was received by the United States Citizenship and Immigration Services (“USCIS”) on May 9, 2023. (Docs. 1 at 6; 1-1 at 30.) On January 20, 2026, DHS issued Petitioner a Notice to Appear. (Doc. 1 at 6.) Upon re-detainment2, Petitioner was categorized as an “arriving alien” and deemed subject to removal pursuant to § 212(a)(7)(A)(i)(I) of the Immigration and Nationality Act (“INA”) as an “immigrant who, at the time of application for admission, is not in possession of a valid . . . entry document[.]” (Doc. 1-1 at 23-26.) Petitioner pleads that he “has no criminal history” and “at no point when he was re-arrested did DHS allege that Petitioner engaged in any criminal conduct or that any change in circumstances occurred between his release on humanitarian parole and his re-arrest that would justify his re-detention.” (Doc. 1 at 6-7.) Petitioner further alleges that “DHS re- arrested Petitioner without advance notice, without a warrant, and without identifying any changed circumstance” and that he was “not served with a revocation notice, afforded no opportunity to contest the seizure, and provided no individualized justification for re- detention.” (Id.) Petitioner filed a Petition in this Court on April 8, 2026, in which he contests his detention pursuant to 28 U.S.C. § 2241. (Doc. 1.) Petitioner raises two grounds in his Petition: 1) Violation of Fifth Amendment – Substantive Due Process; and 2) Violation of Fifth Amendment – Procedural Due Process. (Id. at 9-11.) In his First Claim, Petitioner argues that DHS exercised its discretion to release Petitioner and imposed conditions of supervision, thereby necessarily making an affirmative determination that Petitioner was not a danger to the community nor a flight risk. (Id. at 9.) He argues that when DHS re- detained him without notice, warrant, or any finding that a violation of the release 2 It is unclear based on the record before this Court when exactly Petitioner re-entered ICE custody, but there is no suggestion by either party that Petitioner attempted to evade detention. (See Docs. 1, 9.) Case 2:26-cv-02397-SMB Document 11 Filed 05/15/26 Page 2 of 12
- 3 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 conditions occurred, the re-detention “constitutes a new seizure and new deprivation of liberty[.]” (Id. at 10.) In the Second Claim, Petitioner argues that DHS detained Petitioner without affording him a hearing before a neutral decisionmaker to determine whether continued detention was necessary. (Id. at 11.) Petitioner asserts that his continued detention violates Demore in that his detention has not been justified by a risk of danger to the community or a flight risk. (Id.) (citing Demore v. Kim, 538 U.S. 510, 528 (2003)). Because these claims essentially raise the same grounds, i.e. that Petitioner’s parole was revoked without proper procedures depriving him of his liberty and procedural due process rights, undersigned will address them together. Respondents Eric Rokosky, Warden of Eloy Detention Center; Markwayne Mullin, Secretary of the United States DHS; and Sirce E. Owen, Acting Director of Executive Office for Immigration Review, (collectively, “Respondents”) filed a Response on April 30, 2026. (Doc. 9.) In their Response, Respondents argue that the Petition should be denied because Petitioner’s detention is statutorily authorized and constitutional. (Id. at 2-7.) Respondents assert that there is no statutory or regulatory requirement that entitles Petitioner to a “pre-deprivation” hearing. (Id. at 2.) Respondents argue that “[i]nstead of a guarantee of pre-detention review by an Immigration Judge, aliens detained under § 1226(a) are provided with multiple avenues to seek review of their detention once they are in custody – a process which the Ninth Circuit has already held is constitutionally sufficient.” (Id. at 3) (citing Rodriguez Diaz v. Garland, 53 F.4th 1189, 1196-97 (9th Cir. 2022)). Respondents continue that in addition to not being required to give Petitioner a pre- deprivation hearing, Petitioner is detained pursuant § 1225(b)(2)(A), rather than § 1226(a). (Id. at 4.) Thus, Respondents argue, Petitioner has no due process rights to release and “cannot be said to have effected an entry,” even if he was paroled after entering. (Id. at 5- 6.) Respondents dispute Petitioner’s assertion that he is entitled to substantive due process rights, arguing that “Ninth Circuit precedent forecloses the idea that Petitioner has a substantive due process right to continued release from custody on Section 1182(d)(5) parole, and even if they did, the Court has no jurisdiction to review its revocation.” (Id. at 6.) Finally, Respondents also argue that “only the warden is a proper respondent.” (Id. at Case 2:26-cv-02397-SMB Document 11 Filed 05/15/26 Page 3 of 12
- 4 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 n.1.)3 Petitioner filed a timely Reply arguing that “[t]he Court should reject Respondent’s contention that due process requires no pre-detention hearing.” (Doc. 10 at 1.) Petitioner first argues that Respondents’ assertion that only the warden is a proper respondent “is procedural” and “does not bear on whether Petitioner’s detention is lawful.” (Id. at 2.) Petitioner further argues that Respondents mischaracterize the remedy sought as an “extra- statutory” request for relief rather than a due process claim. (Id. at 2-3.) Petitioner continues that his re-detention “is not merely a continuation of prior custody; it is a new restraint on a person who had already regained liberty” and thus due process favors granting Petitioner a hearing. (Id. at 3-4.) Petitioner disputes Respondents’ arguments that the INA does not expressly provide a pre-detention bond hearing, instead arguing that “constitutional due process is not limited to procedures Congress has codified.” (Id. at 4.) Petitioner also argues that Respondents incorrectly apply the “entry fiction” to Petitioner because “[t]he cases they invoke arise in contexts involving initial admission or border-seeking noncitizens, not [a person’s] retention [after they] . . . lived at liberty for years.” (Id. at 5.) Finally, Petitioner asserts that “a post hoc remedy does not cure the constitutional defect” and post-detention review, as Respondents suggest, “is not an adequate substitute for pre-deprivation process.” (Id. at 5-6.) II. ANALYSIS A. Governing Statutory Framework “The writ of habeas corpus remains available to every individual detained within 3 Respondents thus request that the Court dismiss all Respondents other than “the warden.” (Doc. 9 at n.1.) “[L]ongstanding practice confirms that in habeas challenges to present physical confinement-‘core challenges’-the default rule is that the proper respondent is the warden of the facility where the prisoner is being held, not the Attorney General or some other remote supervisory official.” Rumsfeld v. Padilla, 542 U.S. 426, 435 (2004). The Ninth Circuit further clarified this position and “affirm[ed] the application of the immediate custodian and district of confinement rules to core habeas petitions filed pursuant to 28 U.S.C. § 2241, including those filed by immigrant detainees.” Doe v. Garland, 109 F.4th 1188, 1199 (9th Cir. 2024). However, other courts in this Circuit have found that Doe “did not necessarily preclude naming more than one respondent so long as the immediate custodian is named.” See, e.g., Doe v. Chestnut, 810 F. Supp. 3d 1169, 1169 n.1 (E.D. Cal. 2025); Gonzalez Elias v. Warden of the Golden State Annex Det. Facility, No. 1:26-CV-01835-JLT-EPG, 2026 WL 901288, at *1 n.1 (E.D. Cal. Apr. 2, 2026). Because Petitioner names his immediate custodian undersigned declines to recommend dismissal of the other Respondents. Case 2:26-cv-02397-SMB Document 11 Filed 05/15/26 Page 4 of 12
- 5 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the United States.” Hamdi v. Rumsfeld, 542 U.S. 507, 525 (2004) (citing U.S. Const., Art. I, § 9, cl. 2). Writ of habeas corpus relief extends to a person in federal custody if the petitioner can demonstrate he “is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241(c)(3). Accordingly, federal courts have jurisdiction to grant writs of habeas corpus to non-citizens who are being unlawfully detained under 28 U.S.C. § 2241. See Trinidad y Garcia v. Thomas, 683 F.3d 952, 956 (9th Cir. 2012) (“The writ of habeas corpus historically provides a remedy to non-citizens challenging executive detention.”) (citing INS v. St. Cyr, 533 U.S. 289, 301-303 (2001)); Lopez-Marroquin v. Barr, 955 F.3d 759, 759 (9th Cir. 2020) (“[D]istrict courts retain jurisdiction under 28 U.S.C. § 2241 to consider habeas challenges to immigration detention that are sufficiently independent of the merits of the removal order”) (citation omitted). While Respondents plainly argue that “[t]he Secretary’s decision to revoke parole is not reviewable by any court[,]” and “the Court has no jurisdiction to review [8 U.S.C. § 1182(d)(5)(A) parole] revocation[,]” Respondents do not explicitly dispute this Court’s jurisdiction over the Petition. (See Doc. 9 at 4-5.)4 There are two statutory schemes governing the detention of non-citizens: 8 U.S.C. §§ 1225 and 1226. The apprehension and detention of noncitizens already present in the United States is governed by 8 U.S.C. § 1226, which creates “a default rule for those aliens by permitting—but not requiring—the Attorney General to issue warrants for their arrest and detention pending removal proceedings.” Jennings v. Rodriguez, 583 U.S. 281, 303 (2018). According to 8 U.S.C. § 1226(a), “an alien may be arrested and detained pending a decision on whether the alien is to be removed from the United States. Except as provided in subsection (c) and pending such decision, the Attorney General . . . may continue to 4 This argument fails because this Court will not be reviewing the Secretary’s decision to revoke parole, but rather the due process afforded to Petitioner. See Noori v. LaRose, 807 F. Supp. 3d 1146, 1160 (S.D. Cal. 2025) (finding the court had jurisdiction to review the constitutionality of terminating petitioner’s parole without an individualized hearing and citing Deng Chol A. v. Barr, 455 F. Supp. 3d 896, 901 (D. Minn. 2020) (“Although the court may not review discretionary decisions made by immigration authorities, it may review immigration-related detentions to determine if they comport with the demands of the Constitution.”)); Y-Z-L-H v. Bostock, 792 F. Supp. 3d 1123, 1140-1141 (D. Or. 2025) (finding the INA did not preclude the district court’s jurisdiction to consider whether the decision to terminate Petitioner’s parole was lawful) Case 2:26-cv-02397-SMB Document 11 Filed 05/15/26 Page 5 of 12
- 6 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 detain the arrested alien; and . . . may release the alien on . . . bond of at least $1,500 with security approved by, and containing conditions prescribed by, the Attorney General; or . . . conditional parole.” Governing the detention of “applicants for admission” is 8 U.S.C. § 1225. The statute defines “applicants for admission” as “an alien present in the United States who has not been admitted or who arrives in the United States” following inspection by immigration authorities. 8 U.S.C. § 1225. Applicants for admission detained pursuant to 8 U.S.C. § 1225 may be released on parole “for urgent humanitarian reasons or significant public benefit” pursuant to 8 U.S.C. § 1182(d)(5)(A). See Jennings, 583 U.S. at 287. Releasing a noncitizen on humanitarian parole “requires a case-by-case determination, where the noncitizen must ‘demonstrate to the satisfaction of the officer that such release would not pose a danger to property or persons’ and that the noncitizen is ‘likely to appear for any future proceeding.’” Noori, 807 F. Supp. 3d at 1157 (quoting 8 C.F.R. § 1236.1(c)(8)). Parole may terminate “upon the departure from the United States of the alien or “at the expiration of the time for which parole was authorized” without written notice. 8 C.F.R. § 212.5(e)(1). In all other circumstances, parole is terminated by written notice if the purpose of the parole has been accomplished or if an authorized DHS official determines that neither humanitarian reasons nor public benefit warrants continued presence in the United States. 8 C.F.R. § 212.5(e)(2)(i); 8 U.S.C. § 1182(d)(5)(A); see also Noori, 807 F. Supp. 3d at 1157. B. Entitlement to Due Process The extent to which due process applies to noncitizens, in which factual circumstances, and to what degree is an ever-developing body of case law; district courts around the country continue to grapple with these issues. Undersigned will briefly address the two apparent approaches to noncitizens’ due process challenges that have emerged, recognizing that the split in approaches occurs even within this District. First, fundamentally, the Due Process Clause of the Fifth Amendment to the United States Constitution provides 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.” Case 2:26-cv-02397-SMB Document 11 Filed 05/15/26 Page 6 of 12
- 7 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Reno v. Flores, 507 U.S. 292, 306 (1993). Additionally, once a non-citizen has entered the United States, “the legal circumstance changes, for the 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). “Procedural due process imposes constraints on governmental decisions which deprive individuals of ‘liberty’ or ‘property’ interests within the meaning of the Due Process Clause of the Fifth or Fourteenth Amendment.” Mathews v. Eldridge, 424 U.S. 319, 333 (1976). Respondents argue that Petitioner has no due process rights to release and “cannot be said to have effected an entry,” even if he was paroled after entering. (Doc. 9 at 5-6.) Accordingly, Respondents essentially conclude that Petitioner’s parole is entirely discretionary and he has no due process rights to continued parole. (See id.) Additionally, Respondents argue Petitioner is subject to the “entry fiction” such that although he was paroled in the United States for over four years, he “cannot be said to have effected an entry.” (See id. at 5-6.) Some district courts have agreed with Respondents’ position and denied or dismissed habeas petitions outright for noncitizens challenging detention on due process grounds. See, e.g., S.M.H., Petitioner, v. Christopher McGregor, et al., Respondents., No. CV-26-00620-PHX-MTL (JZB), 2026 WL 1004572, at *1 (D. Ariz. Apr. 14, 2026) (finding that petitioner, who was granted temporary parole for two years, “lacks any interest in maintaining his parole that is protected by the Due Process Clause and that would require the government to provide him with a hearing before terminating parole.”); Vardanyan, v. Warden, Adelanto ICE Processing Center, No. CV-25-03272-SVW-SK, 2026 WL 851431, at *1-2 (C.D. Cal. Mar. 25, 2026) (denying petitioner’s writ after parole revocation finding that petitioner was “entitled only to those due process rights that Congress afforded by statute.”). The majority of district courts in the Ninth Circuit have held that once a petitioner has been released on parole they have developed a liberty interest, and procedures must exist to adequately protect that interest. Noori, 807 F. Supp. 3d at 1157; see also Osmonaliev v. Cantu, No. CV-25-03531-PHX-JJT, 2025 WL 3637397, at *1 (D. Ariz. Dec. Case 2:26-cv-02397-SMB Document 11 Filed 05/15/26 Page 7 of 12
- 8 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 16, 2025) (finding petitioner had a due process interest in his humanitarian parole release and that “when the government has exercised its initial discretion to release an individual from custody, its decision creates ‘an implicit promise’ that his release will be revoked only if he fails to meet the conditions of release.”) (quoting Morrissey v. Brewer, 408 U.S. 471, 482 (1972)); Pinchi v. Noem, 792 F. Supp. 3d 1025, 1032 (N.D. Cal. 2025) (“[E]ven 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.”); Singh v. Party, No. CV-26-00483-PHX-JCH (CDB), 2026 WL 809849, at *3 (D. Ariz. Mar. 24, 2026) (collecting cases and concluding for petitioner released on order of release on recognizance that “upon release, [p]etitioner gained a liberty interest in his release and certain analogous procedural rights.”); Omer G. G. v. Kaiser, 815 F. Supp. 3d 1098, 1110 (E.D. Cal. 2025) (finding petitioner had a “protected liberty interest” in his humanitarian parole release); R.A.N.O. v. Wofford, No. 1:25-CV-01535-KES-EPG (HC), 2026 WL 40507, at *4-5 (E.D. Cal. Jan. 6, 2026) (finding that petitioner’s humanitarian parole had allowed him to develop a liberty interest in part because “[f]or three years, it allowed him to establish ties in the community, work pursuant to a valid work authorization, and pursue relief in his removal proceedings.”) Furthermore, courts have rejected Respondents’ argument that the entry fiction precludes consideration of Petitioner’s due process rights. (See Doc. 9 at 5-6) (quoting Department of Homeland Security v. Thuraissigiam, 591 U.S. 103, 139 (2020)). In Thuraissigiam, the Supreme Court rejected an arriving noncitizen’s due process rights, finding that “an alien in respondent’s position has only those rights regarding admission that Congress has provided by statute.” Id. at 140. However, Thuraissigiam was applied to petitioners challenging admission, rather than detention. Id. (A noncitizen has “only those rights regarding admission that Congress has provided by statute.”) (emphasis added); see also Padilla v. U.S. Immigr. & Customs Enf’t, 704 F. Supp. 3d 1163, 1170-1172 (W.D. Wash. 2023) (discussing how Thuraissigiam does not foreclose the court’s consideration of plaintiff’s due process claims regarding detention rather than admission). Accordingly, undersigned recommends that the Court join the majority of courts in Case 2:26-cv-02397-SMB Document 11 Filed 05/15/26 Page 8 of 12
- 9 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 this Circuit in holding that the revocation of humanitarian parole pursuant to 8 U.S.C. § 1182(d)(5)(A), where a petitioner’s parole time did not expire nor was he removed from the country, requires certain procedural protections. See Osmonaliev v. Cantu, No. CV-25- 03531-PHX-JJT-DMF, slip op. at 9 (D. Ariz. Nov. 13, 2025) (collecting cases), report and recommendation adopted 2025 WL 3637397, at *1 (D. Ariz. Dec. 16, 2025). However, undersigned recognizes that there is the above-referenced split within the District and ultimately undersigned defers to the assigned District Judge on the issue. C. Mathews Test (Whether Petitioner’s Detention Has Become Unreasonable) Having concluded that Petitioner has a protected liberty interest arising from his humanitarian parole pursuant to 8 U.S.C. § 1182(d)(5)(A), undersigned must now turn to what procedural protections must be applied before Petitioner can be deprived of such an interest. See Mathews, 424 U.S. at 333. Courts considering humanitarian parole revocation apply the Mathews v. Eldridge factors to assess what process is due. See Osmonaliev, slip op. at 9; R.A.N.O., 2026 WL 40507, at *6; Pinchi, 792 F. Supp. 3d at 1032. Under Mathews, courts balance three 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 Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.” Mathews, 424 U.S. at 335. Regarding the first factor, private interest, Petitioner has a significant private interest in his freedom and remaining out of detention. Broadly, “[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, 533 U.S. at 690. And a “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”; as such, the parolee’s liberty interest “is valuable and must be seen as within the protection of the [Due Process Clause].” Morrissey, 408 U.S. at 482. This principle has been extended to apply to immigration parolees. See Osmonaliev, 2025 WL 3637397, at *1 (applying Morrissey in the immigration parole Case 2:26-cv-02397-SMB Document 11 Filed 05/15/26 Page 9 of 12
- 10 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 context). Petitioner, having been paroled for four years prior to his detention, has a private interest in his freedom from detention and accordingly this factor favors Petitioner. The second factor, risk of erroneous deprivation, also favors Petitioner. “Where an individual has not received a bond or redetermination hearing, the risk of an erroneous deprivation of liberty is high.” Singh, 2026 WL 809849, at *4 (cleaned up) (quoting Salcedo Aceros v. Kaiser, No. 25-CV-06924-EMC (EMC), 2025 WL 2637503, at *12 (N.D. Cal. Sept. 12, 2025)). Here, Petitioner received no individualized reason for revocation or written notice of the revocation, as required pursuant to statutory authority. See 8 C.F.R. § 212.5(e)(2)(i); 8 U.S.C. § 1182(d)(5)(A). Petitioner was detained by DHS without a hearing before a neutral decisionmaker, and no immigration judge reviewed Petitioner’s custody determination. (See Doc. 1 at 11.) Furthermore, implicit in Petitioner’s original parole was the determination that Petitioner did not pose a danger to persons or property, nor a risk of absconding. See Noori, 807 F. Supp. 3d at 1157. Accordingly, the second factor favors Petitioner. Finally, the third Mathews factor considers the government’s interest. Prior courts have found that the government’s interest in detaining Petitioner without notice, reasoning, and a hearing is “low.” See Omer G. G., 815 F. Supp. 3d at 1111; 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.”) Additionally, “Respondents’ interest is even lower because Petitioner was previously released on his own recognizance after immigration officials necessarily determined he was not a flight risk or danger to the community and the government does not allege Petitioner violated any condition of his release.” Singh, 2026 WL 809849, at *4. There is no indication in the record that Petitioner violated any terms of his parole, committed any crimes, or otherwise presented a public safety or flight risk during parole. (See Docs. 1, 9.) Thus, the third factor weighs towards Petitioner as Respondents have failed to show any countervailing interest against providing a pre- detention hearing. // Case 2:26-cv-02397-SMB Document 11 Filed 05/15/26 Page 10 of 12
- 11 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 III. CONCLUSION AND REMEDY With all three Mathews factors favoring Petitioner, undersigned recommends that the District Judge find that Petitioner’s detention without a hearing prior to his parole revocation was violative of Petitioner’s due process rights. Courts that have made similar determinations have found that immediate release, rather than requiring another bond hearing, is the appropriate remedy. See Osmonaliev, 2025 WL 3637397, at *2; Singh, 2026 WL 809849, at *4-5; R.A.N.O., 2026 WL 40507, at *8. Undersigned will thus recommend immediate release to restore Petitioner to the same conditions of release previously imposed or, alternatively, recommend that the District Judge order Respondents to provide Petitioner a bond hearing. Petitioner also requests that the Court order Respondents not to transfer Petitioner out of this District and for the Court to award Petitioner costs and reasonable attorneys’ fees provided for by the Equal Access to Justice Act, 28 U.S.C. § 2412. (See Doc. 1 at 11.) However, Petitioner does not provide relevant support for these requests.5 (See id.) Accordingly, undersigned recommends the Petition (Doc. 1) be granted in part (insofar as a Petitioner is released or a bond hearing is ordered) and denied in part (denying other requested relief without prejudice). RECOMMENDATION Based on the foregoing, IT IS THEREFORE RECOMMENDED that the Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 (Doc. 1) be granted in part and denied in part as follows: 1. Undersigned recommends that the Court grant Petitioner’s request for release and order Petitioner to be released within seven (7) days of the Court’s order to the same conditions of release previously imposed, or for a bond hearing to be 5 For example, the briefing contains no two-part analysis of the propriety of fees under the EAJA. See Nadarajah v. Holder, 569 F.3d 906, 909-910, 914 (9th Cir. 2009). Because the record before the Court contains no discussion of the availability of attorney’s fees under the EAJA aside from a bare citation, undersigned recommends the Court deny the request without prejudice. In so recommending, undersigned makes no suggestion whether leave to file should be granted, whether attorney’s fees should or should not be available, or who the “prevailing party” may be. Case 2:26-cv-02397-SMB Document 11 Filed 05/15/26 Page 11 of 12
- 12 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 held within thirty (30) days of the date of the Court’s Order, where Petitioner would be afforded a bond hearing before a neutral adjudicator at which hearing the government must bear the burden of showing that Petitioner should not be released on bond because he is a flight risk or a danger to the community; 2. It is recommended that the Court order Respondents to provide a notice of compliance to this Court within seven (7) days of releasing Petitioner or providing him with a bond hearing; 3. It is recommended all other forms of relief in the Petition be denied without prejudice. EFFECT OF RECOMMENDATION 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. The parties shall have 14 days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(b) and 72. Thereafter, the parties have 14 days within which to file a response to the objections. Failure to timely file objections to the Magistrate Judge’s Report and Recommendation may result in the acceptance of the Report and Recommendation by the district court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure to timely file objections to any factual determinations of the Magistrate Judge will be considered a waiver of a party’s right to appellate review of the findings of fact in an order of judgment entered pursuant to the Magistrate Judge’s recommendation. See Fed. R. Civ. P. 72. Dated this 15th day of May, 2026. Case 2:26-cv-02397-SMB Document 11 Filed 05/15/26 Page 12 of 12
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