(HC) Porras Castillo v. Robbins et al

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
ERIKA VIRGINIA PORRAS CASTILLO,
Petitioner,
v.
MINGA WOFFORD et al.,
Respondents.
Case No. 1:25-cv-01586-JLT-HBK
ORDER GRANTING MOTION FOR
TEMPRORARY RESTRAINING ORDER IN
PART
(Doc. 2)
I. INTRODUCTION
Before the Court for decision is Erika Virginia Porras Castillo’s (“Petitioner’s”) request
for a temporary restraining order, (Doc. 2), filed in conjunction with her petition for a writ of
habeas corpus brought under 28 U.S.C. § 2241 challenging her ongoing immigration detention
(Doc. 1.) Having evaluated the TRO request, Respondents’ opposition (Doc. 9), Petitioner’s
reply (Doc. 12), and Respondents’ supplemental filing alongside the entire record (Doc. 10), the
Court GRANTS Petitioner’s motion for a temporary restraining order IN PART.
II. FACTUAL & PROCEDURAL BACKGROUND
Petitioner is a citizen and national of Peru who claims to have fled her home country
after facing government persecution and threats from criminal organizations. (See generally Doc.
2.) She entered the United States on or about July 7, 2022, at which time she was apprehended
by the Department of Homeland Security near El Paso, Texas. (Doc. 2 at 3; Doc. 9-1, ¶8.) On or
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about July 9, 2022, Petitioner was paroled1 into the United States and instructed by DHS to
report to a local immigration office within sixty days of her release. (Doc. 9-1, ¶9; Doc. 9-2.) In
doing so, immigration officials necessarily determined that Petitioner did not present a risk of
flight or danger to the community. See 8 C.F.R. § 1236.1(c)(8) (“Any officer authorized to issue
a warrant of arrest may, in the officer’s discretion, release an alien not described in section
236(c)(1) of the Act, under the conditions at section 236(a)(2) and (3) of the Act; provided that
the alien must demonstrate 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.”).
Petitioner’s release was also contingent upon her enrollment in an Alternatives to Detention
(“ATD”) and Intensive Supervision Alternative Program (“ISAP”), which required her to submit
weekly biometric reports to DHS. (Doc. 9-1, ¶10; Doc. 11-1 at 2.) On March 20, 2023, Petitioner
was served with a Notice to Appear and placed in removal proceedings pursuant to INA
212(a)(6)(A)(i) (8 U.S.C. §1182(a)(6)(A)(i)). (Doc. 9-1; ¶13. Doc. 11-1 at 4.)
Petitioner contends that she complied with all ISAP reporting and monitoring
requirements, including submitting photos of herself, informing DHS of her whereabouts and
any address changes, and making in-person visits to the ICE Field Office. (Doc. 2 at 3-4.) On
one occasion in either September or October 2025, Petitioner states that she was approximately
20 minutes late for her ISAP biometric check-in because she was at work. (Doc. 2 at 4.)
Respondents describe Petitioner’s ISAP compliance differently, asserting that Petitioner
did not comply with his ISAP reporting requirements on numerous occasions: March 21, 2023
(Missed Biometric Check-in); November 14, 2023 (Missed Biometric Check-in); May 27, 2025
(Missed Biometric Check-in)2; and August 19, 2025 (Missed Biometric Check-in)3. (Doc. 9-1;
¶¶ 14-18.)
1 Petitioner’s parole expired on September 9, 2022, on which day she reported to the San Franscico Immigration and
Customs Enforcement’s (“ICE”) office.
2 Respondents assert that after Petitioner missed her biometric check-in on May 27, 2025, ISAP officials
successfully contacted Petitioner and Petitioner subsequently checked in. (Doc. 9-1; ¶17.)
3 Respondents assert that after Petitioner missed her biometric check-in on August 29, 2025, ISAP attempted to
contact Petitioner, including leaving a voicemail and contacting Petitioner’s personal contacts, but were
unsuccessful (Doc. 9-1; ¶18.) Petitioner eventually responded to ISAP and successfully checked in on August 29,
2025. (Doc. 11-6.)
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According to information relayed to the Court from Petitioner through Petitioner’s
daughter, after entering the United States, she came to live in San Fransico, where she resides
with her partner and daughter and sells street food to make a living. (Doc. 2 at 3.) Additionally,
Petitioner was an active member of her local church and maintained a clean criminal record. (Id.)
Petitioner filed an asylum petition sometime in October of 2024 and currently has a
Master Calendar court hearing scheduled for February 26, 2026. (Id.) Petitioner claims that she
and her family were forced to leave Peru due to threats and abuse from criminal organizations
attempting to exhort a protection tax, in addition to facing persecution at the behest of the
Peruvian government. (Doc. 2-4, ¶2.)
On or about October 27, 2025,4 Petitioner received a message through ISAP instructing
her to present herself in person to the ISAP office in San Francisco at 1:00 p.m. that same day.
(Doc. 2 at 4.) When Petitioner arrived at the ISAP office at 1:00 p.m. on October 27, she was
then instructed to present herself to the San Francisco ICE Field Office that same day. (Id.)
However, the ICE Field Office was already closed by the time Petitioner arrived at 2:00 p.m. and
she was instructed to return to the ICE Field Office on October 29, 2025 between 8:00 a.m. and
10:00 a.m. (Id.) Upon arrival at her appointment on October 29, Petitioner was arrested by ICE
officers arrested her for violating the conditions of the ISAP program. (Doc. 2 at 4; Doc. 9-1;
¶21.) The next day Petitioner was transferred to the California City Corrections Center, in
California City, California, where she is currently detained. (Doc. 2 at 4.)
On November 18, 2025, Petitioner filed a petition for writ of habeas corpus (Doc. 1)
asserting that her detention is unlawful under the Immigration Nationality Act and violates her
procedural and substantive due process rights under the Fifth Amendment. (Doc. 2.) She also
filed a motion for a temporary restraining order requesting immediate release and other
injunctive relief (Id). At the time of filing, Petitioner’s next scheduled immigration hearing was
set for December 9, 2025. (Doc. 9 at 2.)
The government opposes the issuance of preliminary injunctive relief and maintains that
4 Respondents assert that sometime on October 27, 2025, Petitioner was required to wear a GPS device. (Doc. 9-1,
¶19.)
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Petitioner’s detention is “mandatory” under expedited removal procedures set forth at 8 U.S.C.
§ 1225(b)(2). (See generally Doc. 9.) In support of their arguments, Respondents offer the
Declaration of Deportation Officer Munoz Jr., who referenced eight exhibits from Petitioner’s
case file and records kept by DHS, including documentation regarding Petitioner’s alleged ISAP
violations. (Doc. 9-1, ¶7.)
III. LEGAL BACKGROUND
A. Statutory Immigration Framework (8 U.S.C. § 1225 and § 1226)
Two statutes govern the detention and removal of inadmissible noncitizens from the
United States: 8 U.S.C. § 1226 and § 1225. In the interest of expedience, the Court relies here, as
relevant, on the legal background accurately presented by the district court in Salcedo Aceros v.
Kaiser, No. 25-CV-06924-EMC, 2025 WL 2637503 (N.D. Cal. Sept 12, 2025):
A. Full Removal Proceedings and Discretionary Detention
(§ 1226)
The “usual removal process” involves an evidentiary hearing before
an immigration judge. Dep’t of Homeland Sec. v. Thuraissigiam,
591 U.S. 103, 108 (2020). Proceedings are initiated under 8 U.S.C.
§ 1229(a), also known as “full removal,” by filing a Notice to
Appear with the Immigration Court. Matter of E-R-M- & L-R-M-,
25 I. & N. Dec. 520, 520 (BIA 2011). Section § 1226 provides that
while removal proceedings are pending, a noncitizen “may be
arrested and detained” and that the government “may release the
alien on ... conditional parole.” § 1226(a)(2); accord Thuraissigiam,
591 U.S. at 108 (during removal proceedings, applicant may either
be “detained” or “allowed to reside in this country”). When a person
is apprehended under § 1226(a), an ICE officer makes the initial
custody determination. Diaz v. Garland, 53 F.4th 1189, 1196 (9th
Cir. 2022) (citing 8 C.F.R. § 236.1(c)(8)). A noncitizen will be
released if he or she “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.” Id.
(citing 8 C.F.R. § 236.1(c)(8)).
“Federal regulations provide that aliens detained under § 1226(a)
receive bond hearings at the outset of detention.” Jennings v.
Rodriguez, 583 U.S. 281, 306 (2018) (citing 8 CFR §§ 236.1(d)(1)).
If, at this hearing, the detainee demonstrates by the preponderance
of the evidence that he or she is not “a threat to national security, a
danger to the community at large, likely to abscond, or otherwise a
poor bail risk,” the IJ will order his or his release. Diaz, 53 F.4th at
1197 (citing Matter of Guerra, 24 I. & N. Dec. 37, 40 (B.I.A. 2006)).
Once released, the noncitizen’s bond is subject to revocation. Under
8 U.S.C. § 1226(b), “the DHS has authority to revoke a noncitizen’s
bond or parole ‘at any time,’ even if that individual has previously
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been released.” Ortega v. Bonnar, 415 F. Supp. 3d 963, 968 (N.D.
Cal. 2019). However, if an immigration judge has determined the
noncitizen should be released, the DHS may not re-arrest that
noncitizen absent a change in circumstance. See Panosyan v.
Mayorkas, 854 F. App’x 787, 788 (9th Cir. 2021). Where the release
decision was made by a DHS officer, not an immigration judge, the
Government’s practice has been to require a showing of changed
circumstances before re-arrest. See Saravia v. Sessions, 280 F.
Supp. 3d 1168, 1197 (N.D. Cal. 2017).
B. Expedited Removal and Mandatory Detention (§ 1225)
While Ҥ 1226 applies to aliens already present in the United
States,” U.S. immigration law also “authorizes the Government to
detain certain aliens seeking admission into the country under
§§ 1225(b)(1) and (b)(2),” a process that provides for expedited
removal. Jennings, 583 U.S. at 303 (2018). Under § 1225, a
noncitizen “who has not been admitted or who arrives in the United
States” is considered “an applicant for admission.” 8 U.S.C.
§ 1225(a)(1). For certain applicants for admission, 8 U.S.C. § 1225
authorizes “expedited removal.” § 1225(b)(1). § 1225(b)(1)
provides that:
“If an immigration officer determines that an alien
(other than an alien described in subparagraph (F))
who is arriving in the United States or is described
in clause (iii) is inadmissible under section
212(a)(6)(C) or 212(a)(7) [8 U.S.C. § 1182(a)(6)(C)
or 1182(a)(7)], the officer shall order the alien
removed from the United States without further
hearing or review unless the alien indicates either an
intention to apply for asylum under section 208 [8
USCS § 1158] or a fear of persecution.”
Sections 8 U.S.C. § 1182(a)(6)(C) and 1182(a)(7) respectively refer
to noncitizens who are inadmissible due to misrepresentation or
failure to meet document requirements. Clause (iii) of § 1225(b)(1)
allows the Attorney General (who has since delegated the
responsibility to the Department of Homeland Security Secretary)
to designate for expedited removal noncitizens “who ha[ve] not
been admitted or paroled into the United States, and who ha[ve] not
affirmatively shown, to the satisfaction of an immigration officer,
that the alien has been physically present in the United States
continuously for the 2-year period immediately prior to the date of
the determination of inadmissibility under this subparagraph.”
§ 1225(b)(1)(A)(iii)(II).
To summarize, under § 1225(b)(1), two groups of noncitizens are
subject to expedited removal. First, there are “arriving” noncitizens
who are inadmissible due to misrepresentation or failure to meet
document requirements. The implementing agency regulations
define “arriving alien” as applicants for admission “coming or
attempting to come into the United States at a port-of-entry.” 8
C.F.R. § 1.2. The second group –designated noncitizens –includes
noncitizens who meet all of the following criteria: (1) they are
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inadmissible due to lack of a valid entry document or
misrepresentation; (2) they have not “been physically present in the
United States continuously for the 2-year period immediately prior
to the date of the determination of inadmissibility”; and (3) they are
among those whom the Secretary of Homeland Security has
designated for expedited removal. Thuraissigiam, 591 U.S. at 109;
§ 1225(b)(1).
“Initially, DHS’s predecessor agency did not make any designation
[under (3)], thereby limiting expedited removal only to ‘arriving
aliens,’” that is, noncitizens encountered at ports of entry. Make the
Rd. N.Y. v. Noem, No. 25-cv-190 (JMC), 2025 U.S. Dist. LEXIS
169432, at *14 (D.D.C. Aug. 29, 2025). In the following years, DHS
extended by designation expedited removal to noncitizens who
arrive by sea and who have been present for fewer than two years,
and to noncitizens apprehended within 100 air miles of any U.S.
international land border who entered within the last 14 days. Id.
This was the status quo until January 2025, when the Department of
Homeland Security revised its § 1225 designation to “apply
expedited removal to the fullest extent authorized by statute.”
Designating Aliens for Expedited Removal, 90 Fed. Reg. 8139 (Jan.
24, 2025). Under this designation, expedited removal applies to
noncitizens encountered anywhere within the United States, who
have been in the United States for less than two years and are
inadmissible for lack of valid documentation or misrepresentation.
In short, expedited removal was expanded to apply for the first time
to vast numbers of noncitizens present in the interior of the United
States.
Under the expedited removal statute § 1225(b)(1), if an applicant
“indicates either an intention to apply for asylum” or “a fear of
persecution,” the immigration officer “shall refer the alien for an
interview by an asylum officer.” §§ 1225(b)(1)(A)(i)–(ii). If the
asylum officer determines that the applicant has a “credible fear,”
the applicant “receive[s] ‘full consideration’ of his asylum claim in
a standard removal hearing.” Thuraissigiam, 591 U.S. at 110. If the
officer determines there is no “credible fear,” the officer “shall order
the alien removed from the United States without further hearing or
review.” § 1225(b)(1)(B)(iii). However, the officer’s decision may
be appealed by the applicant to an immigration judge, who must
conduct the review “to the maximum extent practicable within 24
hours, but in no case later than 7 days after the date of the
determination.” Id. Detention under § 1225(b)(1) is “mandatory”
“pending a final determination of credible fear of persecution and if
found not to have such a fear, until removed.” Id. (citing
§ 1225(b)(1)(B)(iii)(IV) (“Any alien subject to the procedures under
this clause shall be detained pending a final determination of
credible fear of persecution and, if found not to have such a fear,
until removed.”)
[Section] 1225 also contains a provision that applies to applicants
for admission not covered by § 1225(b)(1). Jennings, 583 U.S. at
287. This provision, 1225(b)(2), states that, subject to statutory
exceptions, “in the case of an alien who is an applicant for
admission, if the examining immigration officer determines that an
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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 [full removal proceedings] of this title.” § 1225(b)(2).
In other words, noncitizens subject to 1225(b)(2) are not eligible for
expedited removal but are subject to mandatory detention while
their full removal proceedings are pending. This is in contrast to the
default detention regime under § 1226(a), which allows for
discretionary release and review of detention through a bond
hearing.
C. The Government’s Recent Change in Position
Until this year, the DHS has applied § 1226(a) and its discretionary
release and review of detention to the vast majority of noncitizens
allegedly in this country without valid documentation. This practice
was codified by regulation. The regulations implementing the
Illegal Immigration Reform and Immigrant Responsibility Act of
1996 (“IIRIRA”) state that “Despite being applicants for admission,
aliens who are present without having been admitted or paroled
(formerly referred to as aliens who entered without inspection) will
be eligible for bond and bond redetermination.” 62 Fed. Reg. 10312,
10323 (Mar. 6, 1997). In fact, the government has conceded in other
contexts that “DHS’s long-standing interpretation has been that
1226(a) [discretionary detention] applies to those who have crossed
the border between ports of entry and are shortly thereafter
apprehended.” Dkt. No. 17 (citing Solicitor General, Transcript of
Oral Argument at 44:24–45:2, Biden v. Texas, 597 U.S. 785
(2022) (No. 21-954)) . . .
In 2025, however, the Government’s policy changed dramatically.
The DHS revised its § 1225 designation to “apply expedited
removal to the fullest extent authorized by statute.” Designating
Aliens for Expedited Removal, 90 Fed. Reg. 8139 (Jan. 24, 2025)
(emphasis added). The Secretary of Homeland Security
memorandum directed federal immigration officers to “consider ...
whether to apply expedited removal” to “any alien DHS is aware of
who is amenable to expedited removal but to whom expedited
removal has not been applied.” Dkt. No. 1 at ¶ 33. Officers are
encouraged to “take steps to terminate any ongoing removal
proceeding and/or any active parole status.” Id. The memorandum
states that DHS shall take the actions contemplated by the
memorandum “in a manner that takes account of legitimate reliance
interests,” but states that “the expedited removal process includes
asylum screening, which is sufficient to protect the reliance interests
of any alien who has applied for asylum or planned to do so in a
timely manner.” Huffman Memorandum (Jan. 23, 2025).
Since mid-May of 2025, the Department of Homeland Security has
made a practice of appearing at regular removal proceedings in
immigration court, moving to dismiss the proceedings, and then re-
arresting the individual in order to place them in expedited removal
proceedings. Dkt. No. 1 at ¶¶ 35–40. If the immigration judge does
not dismiss the full removal proceedings, ICE still makes an arrest,
apparently in reliance on § 1225(b)(2)’s detention provision.
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Salcedo Aceros, 2025 WL 2637503 at *1-4 (internal footnotes omitted).
B. Parole Revocation
In Y-Z-H-L v. Bostock, 2025 WL 1898025, at *10–12 (D. Or. July 9, 2025), the court
explained the parole process in immigration cases and noted that before parole may be revoked,
the parolee must be given written notice of the impending revocation, which must include a
cogent description of the reasons supporting the revocation decision. The court held:
Section 1182 . . . has a subsection titled “Temporary admission of
nonimmigrants,” which allows noncitizens, even those in required
detention, to be “paroled” into the United States. This provision, at
issue in this case, states:
The Secretary of Homeland Security may, except as
provided in subparagraph (B) or in section 1184(f) of
this title, in his discretion parole into the United States
temporarily under such conditions asShe may prescribe
only on a case-by-case basis for urgent humanitarian
reasons or significant public benefit any alien applying
for admission to the United States, but such parole of
such alien shall not be regarded as an admission of the
alien and when the purposes of such parole shall, in
the opinion of the Secretary of Homeland Security,
have been served the alien shall forthwith return or
be returned to the custody from whichShe 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.
8 U.S.C. § 1182(d)(5)(A).
Y-Z-H-L v. Bostock, 2025 WL 1898025, at *3 (emphasis added). Y-Z-H-L determined that under
the Administrative Procedure Act, immigration parolees are entitled to determinations related to
their parole revocations that are not arbitrary, capricious or an abuse of discretion. Id. at *10. An
agency acts arbitrarily and capriciously by failing to make a reasoned determination or where the
agency fails to “articulate[] a satisfactory explanation for its action including a rational
connection between the facts found and the choice made.” Id. Parole revocations in the context
of the INA must occur on a case-by-case basis and may occur “when the purposes of such parole
shall, in the opinion of the Secretary of Homeland Security, have been served the alien shall
forthwith return or be returned to the custody from which he was paroled.” Id. at *12 (quoting 8
C.F.R. § 212.5(e)). 8 C.F.R. § 212.5(e) requires written notice of the termination of parole
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except where the immigrant has departed or when the specified period of parole has expired.
Applying Y-Z-H-L and § 212.5(e), Mata Velasquez v. Kurzdorfer, No. 25-CV-493-LJV,
2025 WL 1953796, at *11 (W.D.N.Y. July 16, 2025), found that the INA requires a case-by-case
analysis as to the decision to revoke humanitarian parole:
This Court agrees that both common sense and the words of the
statute require parole revocation to be analyzed on a case-by-case
basis and that a decision to revoke parole “must attend to the reasons
an individual [noncitizen] received parole.” See id. There is no
indication in the record that the government conducted any such
analysis here. On the contrary, the letter Mata Velasquez received
merely stated summarily that DHS had “revoked [his] parole.”
Docket Item 62-1 at 5. Thus, there is no indication that—as required
by the statute and regulations—an official with authority made a
determination specific to Mata Velasquez that either “the purpose
for which [his] parole was authorized” has been “accomplish[ed]”
or that “neither humanitarian reasons nor public benefit warrants
[his] continued presence...in the United States.” See 8 C.F.R.
§ 212.5(e)(2)(i). As a result, DHS's revocation of Mata Velasquez’s
parole violated his rights under the statute and regulations. See Y-Z-
L-H, 2025 WL 1898025, at *13.
In Pinchi v. Noem, No. 5:25-CV-05632-PCP, ___ F. Supp. 3d ___, 2025 WL 2084921, at *3 (N.D.
Cal. July 24, 2025), the court reached a similar conclusion relying on the Due Process Clause:
. . . 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. See Romero v. Kaiser, No. 22-cv-02508,
2022 WL 1443250, at *2 (N.D. Cal. May 6, 2022) (“[T]his Court
joins other courts of this district facing facts similar to the present
case and finds Petitioner raised serious questions going to the merits
of his claim that due process requires a hearing before an IJ prior to
re-detention.”); Jorge M. F. v. Wilkinson, No. 21-cv-01434, 2021
WL 783561, at *2 (N.D. Cal. Mar. 1, 2021); Ortiz Vargas v.
Jennings, No. 20-cv-5785, 2020 WL 5074312, at *3 (N.D. Cal.
Aug. 23, 2020); Ortega, 415 F. Supp. 3d at 969 (“Just as people on
preparole, parole, and probation status have a liberty interest, so too
does [a noncitizen released from immigration detention] have a
liberty interest in remaining out of custody on bond.”).
Id. (emphasis added). Other courts, including this Court, have held similarly. Doe v. Becerra,
No. 2:25-CV-00647-DJC-DMC, 2025 WL 691664, at *4 (E.D. Cal. Mar. 3, 2025); see also
Padilla v. U.S. Immigr. & Customs Enf’t, 704 F. Supp. 3d 1163, 1172 (W.D. Wash. 2023) (“The
Supreme Court has consistently held that non-punitive detention violates the Constitution unless
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it is strictly limited, and, typically, accompanied by a prompt individualized hearing before a
neutral decisionmaker to ensure that the imprisonment serves the government’s legitimate
goals.”).
IV. ANALYSIS
A. Jurisdiction
1. Habeas Corpus
Under 28 U.S.C. § 2241, the Court has the authority to determine a petition for writ of
habeas corpus in which the petitioner asserts he is being held in custody “in violation of the
Constitution or laws or treaties of the United States.” “The essence of habeas corpus is an attack
by a person in custody upon the legality of that custody, and that the traditional function of the
writ is to secure release from illegal custody.” Preiser v. Rodriguez, 411 U.S. 475, 484 (1973).
Petitioner seeks her immediate release from custody, which she contends violates the
Constitution of the United States. (See Doc. 1.) Thus, she properly invokes the Court’s habeas
jurisdiction.
2. Judicial Review under the INA
The INA limits judicial review in many instances. Though 8 U.S.C § 1252(g) precludes
this Court from exercising jurisdiction over the executive’s decision to “commence proceedings,
adjudicate cases, or execute removal orders against any alien,” there is no removal order at issue
here and the central issue is Petitioner’s continued detention. Thus, this Court has the authority
to review the termination of Petitioner’s release. See Jennings v. Rodriguez, 583 U.S. 281, 294
(2018) (holding that § 1252(g) precludes judicial review only as to the three areas specifically
outlined in the subsection); see also Reno v. American–Arab Anti–Discrimination Comm., 525
U.S. 471, 482 (1999).
B. Preliminary Injunction
The standard for issuing a TRO is the same as the standard for issuing a preliminary
injunction. See Stuhlbarg Int’l Sales Co. v. John D. Brush & Co., 240 F.3d 832, 839 n. 7 (9th
Cir. 2001) (explaining that the analysis for temporary restraining orders and preliminary
injunctions is “substantially identical”). When seeking a TRO or PI, plaintiffs must establish: (1)
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they are “likely to succeed on the merits” of their claims, (2) they are “likely to suffer irreparable
harm in the absence of a preliminary injunction,” (3) “the balance of equities tips in [their]
favor” and (4) “an injunction is in the public interest.” Winter v. Nat. Res. Def. Council, Inc., 555
U.S. 7, 20 (2008). The moving party has the burden to “make a showing on all four prongs” of
the Winter test to obtain a preliminary injunction. Alliance for the Wild Rockies v. Cottrell, 632
F.3d 1127, 1135 (9th Cir. 2011). Thus, the moving party has “the burden of persuasion.”
Mazurek v. Armstrong, 520 U.S. 968, 972 (1997); Hecox v. Little, 104 F.4th 1061, 1073 (9th Cir.
2023). The Court may weigh the request for a preliminary injunction with a sliding-scale
approach. Alliance, at 1135 (9th Cir. 2011). Accordingly, a stronger showing on the balance of
hardships may support the issuance of a preliminary injunction where there are “serious
questions on the merits … so long as the plaintiff also shows that there is a likelihood of
irreparable injury and that the injunction is in the public interest.” Id. “A preliminary injunction
is an extraordinary remedy never awarded as of right.” Winter, 555 U.S. at 24. Preliminary
injunctions are intended to “merely to preserve the relative positions of the parties until a trial on
the merits can be held, and to balance the equities at the litigation moves forward.” Lackey v.
Stinnie, 604 U.S. ___, 145 S. Ct. 659, 667 (2025) (citations omitted).
The status quo refers to “the last uncontested status which preceded the pending
controversy.” Tanner Motor Livery, Ltd. v. Avis, Inc., 316 F.2d 804, 809 (9th Cir. 1963) (quoting
Westinghouse Elec. Corp. v. Free Sewing Mach. Co., 256 F.2d 806, 808 (7th Cir. 1958)). In the
Court’s view, that is the status before Petitioner was arrested. See Kuzmenko v. Phillips, No. 25-
CV-00663, 2025 WL 779743, at *3 (E.D. Cal. Mar. 10, 2025) (granting a temporary restraining
order requiring immediate release of the petitioner back to home confinement from custody, as a
restoration of the status quo).
Even if the Court’s action here constitutes a mandatory injunction,5 the evidence supports
5 “A prohibitory injunction prohibits a party from taking action and preserves the status quo pending a determination
of the action on the merits.” Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 879 (9th
Cir. 2009) (internal citations omitted). In other words, a prohibitory injunction “freezes the positions of the parties
until the court can hear the case on the merits.” Heckler v. Lopez, 463 U.S. 1328, 1333 (1983). A mandatory
injunction, on the other hand, “orders a responsible party to ‘take action.’” Marlyn Nutraceuticals, 571 F.3d at 879
(quoting Meghrig v. KFC W., Inc., 516 U.S. 479, 484 (1996)). Although subject to a higher standard, a mandatory
injunction is permissible when “extreme or very serious damage will result” that is “not capable of compensation in
damages,” and the merits of the case are not “doubtful.” Id. (internal citations and quotation marks omitted).
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that action Petitioner alleges she has suffered and is suffering violations of his substantive and
procedural due process rights and that his continued unlawful detention will impose on him
serious injury if the injunction is not issued. The injunction issued here is on firm legal footing
and the result does not appear to be doubtful either; due process clearly requires that Petitioner
be given a hearing before his bond is revoked. These injuries are not capable of redress through
monetary compensation. Accordingly, injunctive relief is appropriate even under the higher
standard for mandatory injunctions.
1. Likelihood of Success on the Merits
This first factor “is the most important” under Winter, and “is especially important when
a plaintiff alleges a constitutional violation and injury.” Baird v. Bonta, 81 F.4th 1036, 1041 (9th
Cir. 2023). Petitioner contends that his re-detention and continued detainment violates both
substantive and procedural due process. (See generally Doc. 1 at 17-29.)
a. Respondents Rely on an Incorrect Interpretation of § 1225 for the
Authority to Detain Respondent
Respondents maintain Petitioner’s detention is “mandatory” under 1225(b) while his
removal proceedings are pending. (Doc. 9 at 4-5.) The various legal arguments relied upon by
DHS to support this assertion have been rejected by this Court in other proceedings. See, e.g.,
Ortiz Donis v. Chestnut, 1:25-CV-01228-JLT, 2025 WL 2879514 at *3–6 (E.D. Cal. Oct. 9,
2025); M.R.R. v. Chestnut, No. 1:25-CV-01517-JLT, 2025 WL 3265446 (E.D. Cal. Nov. 24,
2025).
Respondents rely 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. (Doc. 9 at 3.) “Entry fiction” is a concept in immigration
law that deems noncitizens who have not been legally admitted to the United States but who are
physically within the country, to be outside the United States for some legal purposes. See Lin
Guo Xi v. INS, 298 F.3d 832, 837 (9th Cir. 2002). In support, the government cites 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) for the proposition that “[f]or immigration law purposes,
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Petitioner is treated as being stopped at the border, even though she has been physically present
within the United States since July 2022.” (Doc. 9 at 3.) The Court finds these cases inapposite
and rejects Respondents’ argument that “entry fiction” cases guide the analysis for cases not
involving an expedited removal process. The court in Immigrant Defs. L. Ctr. v. Mayorkas, No.
CV209893JGBSHKX, 2023 WL 3149243 (C.D. Cal. Mar. 15, 2023), similarly found that the
“entry fiction” body of case law “did not address the regular removal process that people like
[Petitioner] were placed in.” 2023 WL 3149243, at *29. “Individuals in regular removal
proceedings enjoy far more robust due process protections because Congress has conferred
additional statutory rights on them.” (Id.) (citing 8 U.S.C. §§ 1158(a)(1), (d)(4), 1229a(b)(4),
1362).6
The Court acknowledges that two recent decisions in this district accepted Respondents’
new interpretation of § 1225(b)(2), finding that individuals who had been living in the United
States for nearly 30 years remained noncitizen, “applicants for admission” under § 1225(b)(2)
and therefore subject to mandatory detention without a pre-deprivation hearing. Valencia v.
6 Respondents also rely on Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 212 (1953) and its progeny for
their argument that the Fifth Amendment does not apply to Petitioner. For example, they argue:
An individual who has not effected a legal entry – for example if she has not been admitted into
the United States -- is entitled only to “[w]hatever the procedure authorized by Congress is.”
Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 212 (1953) (quoting United States ex
rel. Knauff v. Shaughnessy, 338 U.S. 537, 544 (1950)); see also Thuraissigiam, 591 U.S. at 140
(an alien detained after unlawful entry “has only those rights regarding admission that Congress
has provided by statute”); Angov v. Lynch, 788 F.3d 893, 898 (9th Cir. 2015) (for “those . . . who
have never technically ‘entered’ the United States . . . procedural due process is simply whatever
the procedure authorized by Congress happens to be” (cleaned up)). This makes sense, since “an
alien seeking initial admission to the United States requests a privilege and has no constitutional
rights regarding his application.” Barrera-Echavarria, 44 F.3d at 1449. “Whatever the procedure
authorized by Congress is, it is due process as far as an alien denied entry is concerned.”
Shaughnessy, 338 U.S. at 544.
(Doc. 9 at 4.) However, as one thorough decision recently issued in the District of Arizona explained, Thuraissigiam
is distinguishable:
In Thuraissigiam the Supreme Court held that a petitioner who was stopped at the border did not
have any due process rights regarding admission into the United States. Thuraissigiam, 591 U.S.
at 107. In contrast, the pending § 2241 petition does not challenge any determination regarding
[petitioner’s] admissibility into the United States, but instead involves a challenge to her detention
pending the conclusion of her removal proceedings.
Rosado v. Figueroa, No. CV 25-02157 PHX DLR (CDB), 2025 WL 2337099, at *15 (D. Ariz. Aug. 11,
2025), report and recommendation adopted sub nom. Rocha Rosado v. Figueroa, No. CV-25-02157-PHX-
DLR (CDB), 2025 WL 2349133 (D. Ariz. Aug. 13, 2025).
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Chestnut, --- F. Supp. 3d ---, 2025 WL 3205133 (E.D. Cal. Nov. 17, 2025); Cortes Alonzo v.
Noem, --- F. Supp. 3d ---, 2025 WL 3208284 (E.D. Cal. Nov. 17, 2025). However, unlike
E.A.P.C., the petitioners in Valencia and Alonzo had never been encountered, let alone
processed, by immigration officials, and had not been released on recognizance pending
completion of Section 240 removal proceedings. (See Valencia v. Chestnut, Case No. 1:25-cv-
01550-WBS-JDP, Doc. 8 at 2; See Cortes Alonzo v. Noem; 1:25-cv-01519-WBS-SCR, Doc. 11
at 5.) Even assuming, arguendo, that Respondents’ new interpretation of § 1225(b)(2) is the
better textual reading of the applicable statutes and thus may be applied to applicants for
admission going forward, Respondents argue here for the retroactive application of their new
interpretation to Petitioner (and many others like him), even though the government previously,
affirmatively placed him into Section 240 proceedings—a system which affords non-citizens
much greater procedural protections than to those placed in expedited removal. See Mata
Velasquez v. Kurzdorfer, No. 25-CV-493-LJV, 2025 WL 1953796, at *9 (W.D.N.Y. July 16,
2025)(“Because DHS chose to place Mata Velasquez in section 240 proceedings instead of
pursuing expedited removal in the first instance—even though it was not required to do that—
the government vested Mata Velasquez with the rights that Congress guaranteed non-citizens in
those proceedings.”). Petitioner’s situation is not comparable to Valencia’s, which may explain
the lackluster due process arguments presented in that case. See Valencia, 2025 WL 3205133, at
*4.
Thus, because petitioner has been present in the United States for approximately four
years and was released on parole by ICE before Respondents adopted the new interpretation of
the governing statutes, the Court concludes that the government’s recent interpretation of the
relationship between § 1225 and § 1226, even assuming it is correct—though the Court is
unconvinced that it is—does not apply here such that detention is not “mandatory” in this case.
b. Due Process Protections
Petitioner contends that her continued detention violates her due process rights. (See Doc.
2 at 12-17.) In Pinchi v. Noem, No. 5:25-CV-05632-PCP, ___ F. Supp. 3d ___, 2025 WL
2084921, at *3 (N.D. Cal. July 24, 2025), the court held,
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. . . 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. See Romero v. Kaiser, No. 22-cv-02508,
2022 WL 1443250, at *2 (N.D. Cal. May 6, 2022) (“[T]his Court
joins other courts of this district facing facts similar to the present
case and finds Petitioner raised serious questions going to the merits
of his claim that due process requires a hearing before an IJ prior to
re-detention.”); Jorge M. F. v. Wilkinson, No. 21-cv-01434, 2021
WL 783561, at *2 (N.D. Cal. Mar. 1, 2021); Ortiz Vargas v.
Jennings, No. 20-cv-5785, 2020 WL 5074312, at *3 (N.D. Cal.
Aug. 23, 2020); Ortega, 415 F. Supp. 3d at 969 (“Just as people on
preparole, parole, and probation status have a liberty interest, so too
does [a noncitizen released from immigration detention] have a
liberty interest in remaining out of custody on bond.”).
Id. (emphasis added). Other courts, including this Court, have held similarly. Doe v. Becerra,
No. 2:25-CV-00647-DJC-DMC, 2025 WL 691664, at *4 (E.D. Cal. Mar. 3, 2025); see also
Padilla v. U.S. Immigr. & Customs Enf’t, 704 F. Supp. 3d 1163, 1172 (W.D. Wash. 2023) (“The
Supreme Court has consistently held that non-punitive detention violates the Constitution unless
it is strictly limited, and, typically, accompanied by a prompt individualized hearing before a
neutral decisionmaker to ensure that the imprisonment serves the government’s legitimate
goals.”). 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 in November
2022, before the manifestation of this interpretation.
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. Pinchi, 2025 WL
2084921at *3.7 In Mathews, the Court determined the following:
[O]ur prior decisions indicate that identification 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 an 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 requirement would entail.
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As to private interest, during her approximately three years on parole, Petitioner pursued
gainful employment, built relationships with many in her community, and kept a clean criminal
record. Thus, parole allowed her to build a life outside detention, albeit under the terms of that
parole. Petitioner has a substantial private interest in being out of custody and her detention
denies her that liberty interest. Zadvydas v. Davis, 533 U.S. 678, 690 (2001) (“Freedom 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.”).
The Court finds there is at least some risk of erroneous deprivation under the present
circumstances, with the record suggesting several reasons why Petitioner’s detention may not be
justified. First, in 2022, in releasing her on parole, DHS necessarily concluded that Petitioner
was not a flight risk or danger to the community. Noori v. LaRose, et al., 2025 WL 2800149, at
13* (S.D. Cal. Oct. 1, 2025) (In general, ‘[r]elease reflects a determination by the government
that the noncitizen is not a danger to the community or a flight risk.’” Saravia v. Sessions, 280 F.
Supp. 3d 1168, 1176 (N.D. Cal. 2017), aff’d sub nom. Saravia for A.H. v. Sessions, 905 F.3d
1137 (9th Cir. 2018).”
This record also shows that Petitioner may have violated the terms of her release,
including missing biometric check-ins. (Doc. 9-1, ¶14-18.) Even still, the remaining question is
whether these missed biometric check-ins constitute changed circumstances sufficient to
convince an IJ that detention is required. 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-
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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. 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-
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deprivation process is required here.
Id. Finally, as other courts have done, this Court concludes that the government’s interest in
detaining Petitioner without proper process is slight. In sum, the Court concludes that he has
demonstrated a likelihood of success on the merits on his procedural due process claim.
C. Irreparable Harm
“It is well established that the deprivation of constitutional rights ‘unquestionably
constitutes irreparable injury.” Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012) (quoting
Elrod v. Burns, 427 U.S. 247, 272 (1976)). Moreover, “[t]he Ninth Circuit has recognized
‘irreparable harms imposed on anyone subject to immigration detention’ including ‘the
economic burdens imposed on detainees and their families as a result of detention.’” Hernandez
v. Sessions, 872 F.3d 976, 995 (9th Cir. 2017); Leiva-Perez v. Holder, 640 F.3d 962, 969-970
(9th Cir. 2011) (the inability to pursue a petition for review may constitute irreparable harm).
The Petitioner has established irreparable harm.
D. Balance of the Harms/Public Interest
Because the interest of the government is the interest of the public, the final two factors
merge when the government is the opposing party. Nken v. Holder, 556 U.S. 418, 435 (2009).
The Court agrees with the analysis of Pinchi, and finds it correctly addresses the situation here:
“[T]he public has a strong interest in upholding procedural
protections against unlawful detention, and the Ninth Circuit has
recognized that the costs to the public of immigration detention are
staggering.” Jorge M. F., 2021 WL 783561, at *3 (cleaned up)
(quoting Ortiz Vargas, 2020 WL 5074312, at *4, and then quoting
Hernandez, 872 F.3d at 996); see also Preminger v. Principi, 422
F.3d 815, 826 (9th Cir. 2005) (“Generally, public interest concerns
are implicated when a constitutional right has been violated,
because all citizens have a stake in upholding the Constitution.”).
Without the requested injunctive relief, Petitioner-Plaintiff faces the
danger of significant health consequences and deprivation of his
liberty. Yet the comparative harm potentially imposed on
Respondents-Defendants is minimal—a mere short delay in
detaining Petitioner-Plaintiff, should the government ultimately
show that detention is intended and warranted. Moreover, a party
“cannot reasonably assert that it is harmed in any legally cognizable
sense by being enjoined from constitutional violations.” Zepeda v.
U.S. Immigr. & Nat. Serv., 753 F.2d 719, 727 (9th Cir. 1983).
This Court therefore joins a series of other district courts that have
recently granted temporary restraining orders barring the
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government from detaining noncitizens who have been on
longstanding release in their immigration proceedings, without first
holding a pre-deprivation hearing before a neutral decisionmaker.
See, e.g., Diaz v. Kaiser, No. 25-cv-05071, 2025 WL 1676854, at
*2 (N.D. Cal. June 14, 2025); Garcia v. Bondi, No. 25-cv-05070,
2025 WL 1676855, at *3 (N.D. Cal. June 14, 2025). Although
Petitioner filed his motion shortly after being detained, rather than
immediately beforehand, the same reasoning applies to his situation.
his liberty interest is equally serious, the risk of erroneous
deprivation is likewise high, and the government’s interest in
continuing to detain his without the required hearing is low. See Doe
v. Becerra, No. 2:25-cv-00647-DJC-DMC, 2025 WL 691664, at *6
(E.D. Cal. Mar. 3, 2025) (granting a TRO as to an individual who
had been detained over a month earlier).
Pinchi, at *3. In addition, there appears to be no dispute that there is no evidence that Petitioner
poses a risk of flight or a danger to the community. For these reasons and those set forth in
Pinchi, the Court concludes that the equities and public interest weigh in favor of Petitioner.
E. Bond
“The court may issue a preliminary injunction or a temporary restraining order only if the
movant gives security in an amount that the court considers proper to pay the costs and damages
sustained by any party found to have been wrongfully enjoined or restrained.” Fed. R. Civ. P.
65(c). The Court has “discretion as to the amount of security required, if any,” and it “may
dispense with the filing of a bond when it concludes there is no realistic likelihood of harm to the
defendant from enjoining his or his conduct.” Jorgensen v. Cassiday, 320 F.3d 906, 919 (9th Cir.
2003) (citation modified). Because “the [Government] cannot reasonably assert that it is harmed
in any legally cognizable sense by being enjoined from constitutional violations,” Zepeda, 753
F.2d at 727, the Court finds that no security is required here.
F. Burden of Proof
Petitioner requests that the Court order Petitioner released from custody and bar
Respondents from rearresting her in a subsequent action without a hearing before a neutral
adjudicator. (See Doc. 2 at 22.) In Rodriguez Diaz v. Garland, 53 F.4th 1189 (9th Cir. 2022), the
Ninth Circuit considered whether a noncitizen detained under § 1226(a) pending removal
proceedings had a right to a second bond hearing where the government would have the burden
to establish by clear and convincing evidence that his continued detention was justified.
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Rodriguez Diaz concluded that due process did not require that procedure, reasoning in part that:
Nothing in this record suggests that placing the burden of proof on
the government was constitutionally necessary to minimize the risk
of error, much less that such burden shifting would be
constitutionally necessary in all, most, or many cases. There is no
reason to believe that, as a general proposition, the government will
invariably have more evidence than the alien on most issues bearing
on alleged lack of future dangerousness or flight risk.
Id. at 1212. However, Rodriguez Diaz “held only that a noncitizen detained under section
1226(a) does not have a right to a second bond hearing when the only changed material
condition since their first bond hearing is the duration of their detention.” Pinchi, 2025 WL
2084921, at *4. It did not address the burden of proof applicable under the present
circumstances.
Pinchi went on to discuss why the calculus changes for an individual who had been
paroled from immigration custody after their initial detention:
Even assuming arguendo that the post-detention bond hearing
provided under section 1226(a) provides constitutionally sufficient
process for those noncitizens who have never previously been
detained and released by DHS, [Petitioner’s] circumstance is
different. his release from ICE custody after his initial
apprehension reflected a determination by the government that she
was neither a flight risk nor a danger to the community, and [she]
has a strong interest in remaining at liberty unless she no longer
meets those criteria. The regulations authorizing ICE to release a
noncitizen from custody require that the noncitizen “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.” 8 C.F.R. § 1236.1(c)(8).
Release [therefore] reflects a determination by the government that
the noncitizen is not a danger to the community or a flight risk.”
Saravia v. Sessions, 280 F. Supp. 3d 1168, 1176 (N.D. Cal. 2017),
aff’d sub nom. Saravia for A.H. v. Sessions, 905 F.3d 1137 (9th
Cir. 2018). [Petitioner] was apprehended by ICE officers when she
crossed the border into the United States [ ]. ICE then released his
on his own recognizance. As ICE was not authorized to release
[her] if she was a danger to the community or a flight risk, the
Court must infer from [her] release that ICE determined she was
neither. [Her] release from ICE custody constituted an “implied
promise” that his liberty would not be revoked unless she “failed
to live up to the conditions of his release.” Morrissey, 408 U.S. at
482. The regulatory framework makes clear that those conditions
were that she remain neither a danger to the community nor a
flight risk. [She] justifiably relied on the government’s implied
promise in obtaining employment, taking on financial
responsibility for his family members, and developing community
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relationships. The more than two years that she has spent out of
custody since ICE initially released his have only heightened his
liberty interest in remaining out of detention. Accordingly, [her]
private interest in retaining his liberty is significant.
Pinchi, 2025 WL 2084921, at *4.
This reasoning contributed to the conclusion in Pinchi that a pre-deprivation hearing was
required under Mathews. The Court in Pinchi also placed the burden at any such hearing 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. Id. at *7. Doing so is logical
even for a post-detention custody hearing for the reasons articulated in Pinchi–namely that the
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.
V. CONCLUSION AND ORDER
1. Petitioner’s Motion for Temporary Restraining Order (Doc. 2) is GRANTED in
PART.
2. Petitioner SHALL be provided a substantive parole revocation hearing no later
than December 19, 2025,8 at which the Immigration Judge will determine whether Petitioner
poses a risk of flight or a danger to the community if she is released.
3. At any such 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, and Petitioner SHALL be allowed to have counsel present.
4. Because the Court must determine whether to convert the TRO into a preliminary
injunction in compliance with the timeline set forth in Federal Rule of Civil Procedure 65(b)(2),
Respondents SHALL file any further briefs regarding the imposition of a preliminary injunction
on or before December 9, 2025. Thereafter, Petitioner may file a reply on or before December
12, 2025. Alternatively, the parties may stipulate to a different briefing schedule provided they
8 Notwithstanding this deadline, the parties are free to stipulate to a later date.
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also address in that stipulation the need to extend the TRO for a sufficient period to allow for
that briefing and for the Court to rule.
IT IS SO ORDERED.
Dated: December 2, 2025
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