Ekenge v. Baltazar et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 1:26-cv-00630-SBP
CHADRACK EKENGE, also known as Gilson Manuel,
Petitioner,
v.
JUAN BALTAZAR, in his official capacity as Warden of the Denver Contract Detention
Facility; ROBERT HAGAN, in his official capacity as Field Office Director, Denver Field
Office of U.S. Immigration and Customs Enforcement; TODD LYONS, in his official capacity as
Acting Director of U.S. Immigration and Customs Enforcement; KRISTI NOEM, in her official
capacity as Secretary of U.S. Department of Homeland Security; and PAMELA BONDI, in her
official capacity as Attorney General of the United States,
Respondents.
MEMORANDUM OPINION AND ORDER
Susan Prose, United States Magistrate Judge
Before the Court is Petitioner Chadrack Ekenge1 (“Petitioner”)’s Application for Writ of
Habeas Corpus. ECF No. 1 (“Petition”). For the reasons outlined below, the court respectfully
GRANTS the Petition.
I. 	BACKGROUND
The following facts appear to be uncontested by the parties in relevant part except as
otherwise reflected or stated below.
Petitioner is a 31-year-old male citizen and national of the Democratic Republic of the
1 Petitioner is also known as Gilson Manuel. Petition ¶ 1.
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Congo2 who states that he fled his home country to avoid persecution for his ethnicity and
political beliefs. Petition ¶ 30. Respondent Juan Baltazar is the Warden of the Denver Contract
Detention Facility and has immediate physical custody over Petitioner; he is sued in his official
capacity. Id. ¶ 19. Respondent Robert Hagan is the Field Office Director of the U.S. Immigration
and Customs Enforcement (“ICE”) Denver field office and is sued in his official capacity. Id.
¶ 20. Respondent Todd Lyons is the Acting Director of ICE and is sued in his official capacity.
Id. ¶ 21. Respondent Kristi Noem is the Secretary of the U.S. Department of Homeland Security
and is sued in her official capacity. Id. ¶ 22. Respondent Pamela Bondi (together with each other
Respondent, “Respondents”) is the Attorney General of the United States and is sued in her
official capacity. Id. ¶ 23.
Petitioner entered the United States at Eagle Pass, Texas, without inspection on March
23, 2022, but was detained by Respondents shortly thereafter; he was released after two days and
was instructed to report to Enforcement and Removal Operations in Colorado. Id. ¶ 31. He did so
on April 4, 2022, and was issued a Notice to Appear and told to report to the Intensive
Supervision Appearance Program (“ISAP”) for supervision; he did this as well. Id. ¶ 32.
Respondents state that Petitioner was never inspected and admitted or paroled into the
United States. ECF No. 9 at 2. Instead, Respondents allege that U.S. Customs and Border
Protection (“CPB”) determined that Petitioner is inadmissible to the United States. Id. Due to a
lack of capacity, however, CBP paroled Petitioner from detention. Id. Petitioner was also enrolled
in ICE’s Alternatives to Detention (“ATD”) program, which provides case management services
2 Respondents state instead that Petitioner is a native and citizen of Angola. ECF No. 9 at 2. For
the purpose of ruling upon the Petition, the court does not find this distinction to be relevant and
accordingly refers to the nationality and place of origin stated by Petitioner.
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and ensures compliance with ICE’s reporting requirements for non-detained aliens. Id. at 3. ICE
additionally conducted a custody redetermination and placed Petitioner on an Order of Release
on Recognizance (“OREC”) in conjunction with the ATD program. Id. at 3.
Respondents claim that both the ATD and OREC paperwork notified Petitioner that
failure to comply with program requirements may result in arrest and detention. Id. Respondents
additionally state that one of the program requirements is to complete all check-ins, including
biometric check-ins. Id.
Since he entered the country, Petitioner claims that he has “dutifully complied with all
immigration proceeding requirements,” including taking a photo through the ISAP portal once
per week, reporting in person to ISAP’s office once every three weeks, and being present for
scheduled home visits. Petition ¶ 33. Respondents dispute this, stating that Petitioner has violated
the conditions of his release because he has missed eleven biometric check-ins that were required
by his OREC, the most recent missed check-in being on December 1, 2025. Response at 3-4.
Petitioner contests both that this requirement existed and that he failed to comply with any of his
conditions of release. However, it appears to be undisputed that Petitioner has no criminal
history. Petition ¶ 35. Petitioner also has a still-pending asylum application. Id. ¶ 37.
On January 15, 2026, Petitioner received a notification through his ISAP portal informing
him that his office visit had been advanced from January 20, 2026, to January 16, 2026; he notes
that he found this strange, as he says that he “had complied with all ISAP requirements and was
simply waiting on his next notice of hearing.” Id. ¶ 38. On January 16, 2026, Petitioner attended
the scheduled office visit, but when Petitioner met with his case supervisor, she took him to a
part of the building where ICE was waiting to arrest him. Id. ¶ 39. ICE arrested Petitioner, at
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which point Petitioner asked why he was being arrested and if he could speak with his case
manager. Id. ¶¶ 40-41. After approximately ten minutes, Petitioner’s case manager came into the
room where ICE was holding Petitioner and informed him that he had allegedly violated his
supervisory requirements on eleven separate occasions. Id. ¶ 41. Petitioner states that he noted to
his case manager that “he did not have an ankle monitor and ISAP’s policy was to place an
individual on an ankle monitor when [such] a violation has occurred,” but she allegedly did not
answer him and instead left the room. Id. ¶ 42. He claims that at the time of filing his Petition, he
still had “no knowledge as to what the alleged [eleven] violations are.” Id. ¶ 43.
Petitioner states that he was blindsided by what happened to him, noting that he had been
very successful in complying with the requirements associated with his release and that his ISAP
photo requirements had even been reduced from once per week to once per month. Id. ¶ 44. He
claims that he never received written notice of the reason for his re-detention and never received
a hearing before a neutral decisionmaker to determine if his re-detention was justified. Id. ¶¶ 45-
46. He also notes that that “Respondents previously released Ekenge upon a determination that
he was neither a flight risk nor danger to the community” sufficient to warrant detention. Id.
¶ 47.
On February 17, 2026, Petitioner filed the Petition with this court. On February 27, 2026,
Respondents filed a response to the Petition. “Response,” ECF No. 9. On March 4, 2026,
Petitioner replied. “Reply,” ECF No. 10.
II. 	ANALYSIS
District courts may grant a writ of habeas corpus to any person who demonstrates he is
“in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. §
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2241(c)(3). The individual in custody bears the burden of proving that his detention is unlawful.
Walker v. Johnston, 312 U.S. 275, 286 (1941).
A. Applicability of 1226 and Scope of Petitioner’s Argument
As an initial matter, the court notes that this District has recently issued many rulings in
habeas cases arising in similar contexts that have turned, at least in part, on the issue of whether
mandatory detention pursuant to 8 U.S.C. § 1225 (“1225”) or discretionary detention pursuant to
8 U.S.C. § 1226 (“1226”) applied to the petitioners in those matters.
In this case, Petitioner raises no argument as to whether he is properly detained under
1225 or 1226. Nonetheless, the court notes, in passing, that there appears to be no real dispute
that Petitioner is properly detained pursuant to 1226. In reaching this conclusion, the court notes
that Petitioner was previously detained pursuant to an Order of Release on Recognizance (an
“OREC”). “OREC forms are used for release under 8 U.S.C. § 1226,” but seemingly cannot be
used for release under 1225. Abdulahi A.M. v. Bondi, No. 26-cv-1018-DWF-DLM, 2026 WL
323523, at *1 (D. Minn. Feb. 6, 2026); see, e.g., Yaman v. Lyons, No. 26-cv-00556-DC-SCR,
2026 WL 323060, at *4 (E.D. Cal. Feb. 6, 2026), report and recommendation adopted, 2026 WL
453565 (“The undersigned finds based on the undisputed [OREC], which was made under 8
U.S.C. § 1226(a), that the statutory authority governing petitioner’s redetention is that same
statute.”); Chicoze-Ezechi v. Noem, No. 26-cv-145-BAT, 2026 WL 265733, at *1 (W.D. Wash.
Feb. 2, 2026) (citing Ortega-Cervantes v. Gonzales, 501 F.3d 1111, 1115-16 (9th Cir. 2007) for
the proposition that noncitizens released on an OREC must necessarily have been detained and
released under 1226). And Respondents have offered no argument to the contrary, nor have they
offered any indication or argument that even under their preferred version of events here, the
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provision governing Petitioner’s status would or could have changed.3 Accordingly, for the
reasons stated above, and since Petitioner was previously released pursuant to an OREC and
since its revocation is the subject of this dispute, the court finds that Petitioner is properly
detained pursuant to 1226.
The court also notes that Petitioner’s arguments do not actually turn on this distinction.
Regardless of whether Petitioner is detained under 1225 or 1226, Petitioner argues that his
detention is improper because he was not provided with appropriate due process when his release
on an OREC was revoked. In doing so, Petitioner appears to argue that whether he is subject to
mandatory detention under 1225 or discretionary detention under 1226, in either case,
Respondents have violated his due process rights by revoking his OREC status. See, e.g., Reply
at 4-6. The court agrees, at least to the extent that the court finds it ultimately need not rely upon
its determination that 1226 applies to Petitioner to rule upon the Petition.4
B. Jurisdiction
The court turns first to Petitioner’s substantive due process claim.
Respondents first argue that “to the extent Petitioner challenges Respondents’
discretionary decision to revoke his OREC, those claims should be dismissed for lack of
3 The court notes that Respondents state that “Petitioner has not been deprived of any statutory
right as he is properly detained under Section 1225(b)(2)(A) and he does not argue otherwise.”
Response at 9. However, Respondents do not otherwise elaborate upon this assertion and do not
refer to any factual support for this proposition. Accordingly, the court does not find that
Respondents have offered any argument beyond this bare statement in support of their assertion
that 1225 applies to Petitioner.
4 Accordingly, the court notes that the Fifth Circuit’s recent decision and analysis in Buenrostro-
Mendez v. Bondi, 166 F.4th 494 (5th Cir. 2026), beyond having no binding effect on this court, is
not relevant here, as the Fifth Circuit relied on its conclusion that the petitioners in that case were
subject to mandatory detention in reaching its ruling.
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jurisdiction.” Response at 6. In support of this proposition, Respondents argue that this court
does not have the jurisdiction to hear Petitioner’s challenges to decisions made by the Attorney
General reached within her discretion in this context. Id. at 4-6.
The court disagrees with Respondents. Petitioner’s primary challenge here is clearly to
the lack of due process underlying his detention, not merely the decision to revoke his detention.
See, e.g., Reply at 4. As Respondents acknowledge, Petitioner argues that he should have been
provided with notice and an opportunity to be heard before his OREC status was revoked. See
Response at 4. And as Respondents also acknowledge, a constitutional challenge to the
procedures used in revoking parole may be heard by this court, id. at 5-6; this includes
considerations regarding notice and the opportunity to be heard, procedural steps that Petitioner
argues were not provided to him here. Accordingly, Petitioner’s petition is not barred from
review by this court.
C. Demore
Respondents next argue that Demore v. Kim, 538 U.S. 510 (2003), stands for the
proposition that Respondents may broadly detain deportable aliens during deportation
proceedings without providing them with a pre-deprivation hearing. Id. at 6-8.
In resolving previous habeas petitions, this court has thoroughly analyzed and rejected
highly similar arguments to Respondents’ arguments here regarding Demore, and accordingly,
the court refers the parties to the analyses set forth in those matters and incorporates them here.
See, e.g., Merchan-Pacheo v. Noem, No. 25-cv-03860-SBP, 2026 WL 88526, at *4-6 (D. Colo.
Jan. 12, 2026) (noting, inter alia, that “[a]lthough Demore certainly makes it clear that detention
during removal proceedings is permissible under certain circumstances . . . it does not follow that
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all forms of detention of noncitizens during removal proceedings and all related procedures
comport with due process”); Arenas v. Noem, No. 26-cv-00024-SBP, 2026 WL 317562, at *7 (D.
Colo. Feb. 5, 2026); see also Demore, 538 U.S. at 523 (“It is well established that the Fifth
Amendment entitles aliens to due process of law in deportation proceedings.”) (citing Reno v.
Flores, 507 U.S. 292, 306 (1993)).
Furthermore, even if Petitioner’s status would once have permitted him to be detained
without a hearing—or put another way, even presuming it were possible that Petitioner is
properly detained pursuant to 1225 rather than 1226—it is undisputed that Petitioner was
previously released on an OREC. This places him in a substantively different position than a
“deportable alien” who had never gained release by the government pursuant to an OREC or
some similar status, like the petitioners in Demore. “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.” Pinchi v. Noem, 792 F.
Supp. 3d 1025, 1032 (N.D. Cal. July 24, 2025) (collecting cases); see Ramirez Tesara v.
Wamsley, 800 F. Supp. 3d 1130, 1137 (W.D. Wash. 2025) (same); Pineda-Berrios v. Lyons, No.
25-cv-2332-LMB-LRV, 2026 WL 384159, at *6 (E.D. Va. Feb. 11, 2026) (same); Rojas v.
Almodovar, No. 25-cv-7189-LJL, 2025 WL 3034183, at *6 (S.D.N.Y. Oct. 30, 2025) (citing
Pinchi and noting that “a liberty interest, once granted, cannot be revoked without due process”
in finding that the due process rights of a petitioner who had had his parole status revoked were
violated); Savane v. Francis, 801 F. Supp. 3d 483, 494 (S.D.N.Y. 2025) (“Other courts
confronting the question of what process is required to revoke parole once granted, even when
that revocation is discretionary, have held that a noncitizen has a significant liberty interest in
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remaining out of custody once parole is granted.”) (collecting cases); Trejo v. Warden of ERO El
Paso E. Montana, 807 F. Supp. 3d 697, 709-10 (W.D. Tex. 2025) (finding that a prisoner
released under an order of supervision possessed “a cognizable interest in his continued freedom
from detention” and noting that in accordance with the longstanding principle in the criminal
context that due process requires a pre-deprivation hearing before the revocation of parole,
1225(b) parolees acquire a protectable liberty interest in remaining out of custody on bond)
(collecting cases). Accordingly, even if 1225 applied to Petitioner rather than 1226, Petitioner
enjoys a due process interest in not being re-detained, as he was here.
D. Arguments Regarding Lack of Deprivation of a Statutory Right and Lack of
Prejudice
Respondents also argue that Petitioner cannot show that his due process rights have been
violated here because to do so, he would need to show that he has been deprived of a statutory
right, but he has not done so. Response at 8-9. This court has previously rejected a nearly
identical argument raised under similar conditions and refers the parties to this analysis, which it
incorporates here. Arenas, 2026 WL 317562 at *7; see also, e.g., Wong Wing v. United
States, 163 U.S. 228, 238 (1896) (the due process protections of the Fifth Amendment extend to
“all persons within the territory of the United States . . . [and] even aliens shall not be . . .
deprived of life, liberty, or property without due process of law”); Zadvydas v. Davis, 533 U.S.
678, 679 (2001) (“[T]he Due Process Clause applies to all ‘persons' within the United States,
including aliens, whether their presence here is lawful, unlawful, temporary, or permanent.”).
And the court also notes that “[w]hile Respondents are correct that non-citizens’ liberty
interests are not equivalent to those enjoyed by citizens . . . that does not negate Petitioner’s
liberty interest in not being detained.” Kumar v. Wamsley, No. 25-cv-1772, 2025 WL 2677089, at
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*3 (W.D. Wash. 2025). The fact “[t]hat the express terms of the parole notice allowed for [ ]
termination or expiration does not somehow obviate the need for the Government to provide an
individualized hearing prior to re-detaining the parolee.” Ramirez Tesara, 800 F. Supp. 3d at
1136. Indeed, as alluded to above, in highly similar circumstances, other federal courts have held
that “due process clearly requires that Petitioner be given a hearing before his bond is revoked.”
Doe v. Becerra, 787 F. Supp. 3d 1083, 1090 (E.D. Cal. 2025) (citing Hernandez v. Sessions, 872
F.3d 976, 999 (9th Cir. 2017)); see, e.g., Osorio Molina v. Hermosillo, No. 26-cv-95-RAJ, 2026
WL 381161, at *1 (W.D. Wash. Feb. 11, 2026) (releasing a petitioner who had his OREC
revoked because he allegedly violated his reporting conditions by failing to report since his
release where the petitioner was not provided with sufficient procedural due process).
Respondents also argue that “Petitioner has not shown any prejudice from any procedural
violation.” Response at 9. This is not the case; Petitioner has alleged that he was not provided
with due process before his OREC was revoked and that he is now detained purely due to this
failure. As addressed above, due process requires that Petitioner be given a hearing before his re-
detention occurs. Relatedly, Respondents argue that Petitioner has not shown that he has been
prejudiced by any due process violation, id. at 9-10, but this is not the case either; Respondents
state that because it is within ICE’s discretion to revoke Petitioner’s release, he cannot argue that
he has been prejudiced, but again, as addressed above, this revocation cannot occur without
Respondents first providing Petitioner with notice and an opportunity to be heard, and based on
the facts before it, the court agrees with Petitioner that there is no reason to believe that
Petitioner would otherwise have been re-detained. Accordingly, Petitioner has clearly been
prejudiced by revocation of his OREC status.
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E. Mathews Factors
Respondents do not otherwise argue that Petitioner has failed to sufficiently argue a due
process violation here. However, Respondents do argue that it would not be appropriate to apply
the three-factor test set forth in Mathews v Eldridge, 424 U.S. 319, 335 (1976), in analyzing
Petitioner’s due process claim, despite Petitioner’s arguments raised in reliance on Mathews,
because the Supreme Court has never applied Mathews in this context, again citing Demore in
support of this proposition. Response at 11-12. Here, again, this court has previously addressed a
nearly identical argument in detail elsewhere and disagrees with Respondents, referring the
parties to and relying upon the reasoning provided within that prior ruling. See Merchan-Pacheo,
2026 WL 88526 at *4-6 (ultimately concluding that “the Supreme Court’s holding in Demore is
fully consistent with the application of the Mathews test”). Accordingly, the court turns to
consider the Mathews test, which it finds is applicable to the circumstances at hand.
Pursuant to Mathews, courts weigh the following three factors in evaluating due process
claims: (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. In turning to analyze
the Mathews factors, the court notes that Respondents, presumably because of their position that
the Mathews factors should not be applied in this context, have offered no argument as to what
the outcome of the court’s due process analysis under Mathews should be.
The court first finds that Petitioner has a significant private liberty interest at stake.
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Petitioner’s interest in physical freedom “is the most elemental of liberty interests.” Hamdi v.
Rumsfeld, 542 U.S. 507, 529 (2004); Vizguerra-Ramirez v. Baltazar, No. 25-cv-00881-NYW,
2025 WL 3653158, at *13 (D. Colo. Dec. 17, 2025) (same); see also Hamdi, 542 U.S. at
529 (directing courts, when assessing the first Mathews factor, to consider only the petitioner’s
interests at stake in ongoing detention without consideration of the respondents’ justifications for
the detention); Zadvydas, 533 U.S. at 690 (stating that an individual's interest in being free from
detention “lies at the heart of the liberty that [the Due Process] Clause protects”). Petitioner is
being held in an ICE detention facility far removed from any friends or family. See Velasco
Lopez v. Decker, 978 F.3d 842, 851 (2d Cir. 2020) (finding, in assessing the first Mathews factor,
that “[t]he deprivation [petitioner] experienced while incarcerated was, on any calculus,
substantial. He was locked up in jail. He could not maintain employment or see his family or
friends or others outside normal visiting hours.”). This is despite him not being accused of any
crime. See, e.g., Maza v. Hyde, No. 25-cv-12407-IT, 2025 WL 2951922, at *3 (D. Mass. Oct. 20,
2025).
The risk of erroneous deprivation is also considerable in this case. “[C]onsidering that
petitioner ‘was previously found to not be a danger or a flight risk, the risk of erroneous
deprivation’ is particularly high if, as is the case now, no hearing has been provided.” Arzate v.
Andrews, No. 25-cv-00942-KES-SKO, 2025 WL 2230521, at *5 (E.D. Cal. Aug. 4, 2025); see
also, e.g., Orellana v. Noem, 807 F. Supp. 3d 745, 754 (W.D. Ky. 2025) (“A re-detention, without
any individualized assessment, leads to a high risk of erroneous deprivation of an individual’s
liberty interest.”). It appears to be undisputed that Petitioner was previously released after it was
determined he was not a danger to the community or a flight risk. Petition ¶ 47. And the fact
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“[t]hat the Government may believe it has a valid reason to detain Petitioner does not eliminate
its obligation to effectuate the detention in a manner that comports with due process.” E.A. T.B. v.
Wamsley, 795 F. Supp. 3d 1316, 1322 (W.D. Wash. 2025). Respondents have not effectuated the
detention in such a manner here.
The court also finds that Respondents’ interest in arresting and detaining Petitioner
without a hearing is not substantial under the circumstances. “[T]he Government’s interest in re-
detaining non-citizens previously released without a hearing is low . . . [and any] costs are far
outweighed by the risk of erroneous deprivation of the liberty interest at issue.” E.A. T.B., 795 F.
Supp. 3d at 1324. Moreover, the public interest favors Petitioner rather than Respondents here.
Unnecessary detention “imposes substantial societal costs,” as it “separates families and removes
from the community breadwinners, caregivers, parents, siblings and employees.” Hernandez-
Lara v. Lyons, 10 F.4th 19, 33 (1st Cir. 2021) (quoting Velasco Lopez, 978 F.3d at 855). Petitioner
has experienced these hardships; he has no criminal record, but he has nevertheless been arrested
and has been held in detention separate from his broader community. The “ruptures in the fabric
of communal life” wrought by unnecessary detention likewise support Petitioner’s challenge to
the automatic stay regulation. Id.; see Sampiao v. Hyde, 799 F. Supp. 3d 14, 34 (D. Mass. 2025)
(reaching a similar conclusion). Thus, the court concludes that Respondents’ interest here is
minimal, especially in contrast to the significant countervailing interests at stake for the
Petitioner.
Accordingly, the court finds that the Mathews factors each weigh heavily in favor of
Petitioner’s release.
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F. 	Appropriate Remedy
The court next turns to consider what an appropriate remedy would be under these
circumstances. Respondents argue that even if Petitioner’s due process rights have been violated,
he would not be entitled to release because the proper remedy would instead be to provide
Petitioner with the process he is entitled to. Response at 10-11. In turn, Petitioner offers no
argument as to whether his immediate release is a more appropriate remedy than keeping him
detained until he is provided with the process he claims he is entitled to, except to note cursorily
in reply to Respondents’ arguments that “[c]ourts routinely order release where detention was
imposed without constitutionally adequate procedures” and that Petitioner “remains detained
today solely because ICE unilaterally revoked his release without due process.” Reply at 12.
The court notes that it has significant flexibility to craft an appropriate remedy under the
circumstances alleged. “Federal district courts have broad equitable powers in ordering habeas
relief.” Munoz Teran v. Bondi, No. 25-cv-01218-KWR-SCY, 2026 WL 161527, at *6 (D.N.M.
Jan. 21, 2026) (citing Burton v. Johnson, 975 F.2d 690, 693 (10th Cir. 1992)). A federal court is
vested with “the largest power to control and direct the form of judgment to be entered in cases
brought up before it on habeas corpus.” Hilton v. Braunskill, 481 U.S. 770, 775 (1987) (citation
omitted). And in issuing a writ of habeas corpus, a federal court has the power and authority to
dispose of habeas corpus matters “as law and justice require.” 28 U.S.C. § 2243.
The court observes that the language quoted by Respondents in support of their
arguments here was crafted under very different circumstances. In Olmedo v. United States
Immigr. & Customs Enf’t, No. 25-cv-3159-JWL, 2025 WL 2821860 (D. Kan. Oct. 3, 2025), there
was no dispute that petitioner had been removed from the United States no less than seven times
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and that he had been arrested on state forgery charges; there was also no allegation that his due
process rights had been violated, and the court merely concluded that Petitioner had been
effectively denied custody review within the requisite timeframe before stating, as cited by
Respondents, that “the appropriate remedy is to ensure that petitioner is afforded the process
denied by the violation.” Id. at *3. The court finds that the present circumstances are entirely
different and do not necessarily justify reaching the same conclusion or applying a similar
remedy. In Bahadorani v. Bondi, No. 25-cv-1091-PRW, 2025 WL 3048932 (W.D. Okla. Oct. 31,
2025), in finding that the court would not be able to issue a writ of habeas corpus as an
appropriate remedy because doing so would be “wasteful,” the court stated that “[h]abeas relief
is reserved for errors constitutional in scale” and that there was no dispute that the petitioner was
“still removable and could promptly be served with a notice of revocation, detained, and
provided a brief interview” before inevitably being removed. Id. at *4. This is far from the case
here, particularly because there remains a question as to whether Petitioner’s re-detention was
justified. And in Cruz Medina v. Noem, 794 F. Supp. 3d 365 (D. Md. 2025), the court found only
that the petitioner had “not pointed to authority showing that the remedy for a violation of th[e]
regulation [at issue] . . . is release from detention,” id. at 382; the court did not state or conclude
that such authority did not exist or that such a remedy would never be available. Indeed, as
addressed below, the court is aware of substantial authority ordering immediate release from
custody for violations similar to the one alleged here.
Furthermore, in a significant majority of cases that this court has been able to track down
in which petitioners have had their OREC or similar status revoked without receiving due
process and there is no indication that the petitioners violated the conditions of their release—
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including many of the cases cited above—courts have ordered the petitioners’ immediate release
rather than continued detention pending bond hearings. See, e.g., Yaman, 2026 WL 323060 at *5
(ordering petitioner’s immediate release where there was “no evidence in the record that he
violated any term of his release or that he has any criminal record”); Abdulahi A.M., 2026 WL
323523 at *2 (ordering petitioner’s immediate release while noting that the typical remedy in a
habeas action is release); Pineda-Berrios, 2026 WL 384159 at *8 (ordering petitioner’s
immediate release); Rojas, 2025 WL 3034183 at *9 (same); see also Pinchi, 792 F. Supp. 3d at
1030 (upholding temporary restraining order under which the petitioner had already been
released).
The court recognizes that in cases this court has uncovered in which there has specifically
been a fact dispute as to whether a petitioner had violated the conditions of his release under an
OREC or similar status, in certain instances, courts have ordered expedited bond hearings instead
of immediate release. See, e.g., Martinez Hernandez v. Andrews, No. 25-cv-1035-JLT-HBK,
2025 WL 2495767, at *12 (E.D. Cal. Aug. 28, 2025) (ordering petitioner’s continued detention
pending a “timely” bond hearing where “there is a dispute of fact as to whether Petitioner
repeatedly violated the terms of his parole”) (collecting cases). However, other courts have found
that under those circumstances, releasing a petitioner immediately remains the appropriate
approach, at least where no evidence has been provided that the petitioner violated the conditions
of his release pursuant to an OREC or similar status, where little or no evidence has been
provided in support of respondents’ claims as to what the petitioner’s conditions of release are, or
where there is some argument or indication that respondents’ reference to such a violation may
be pretextual. See, e.g., Chicoze-Ezechi, 2026 WL 265733 at *2-3 (stating that “a post-
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deprivation bond hearing is an inadequate procedural safeguard because it would occur only after
detention and thus fails to address an erroneous deprivation of liberty.”); E.A. T.B., 795 F. Supp.
3d at 1322.
Here, Respondents have offered a declaration from a deportation officer familiar with
Petitioner’s case who has averred that Petitioner missed eleven of his scheduled biometric check-
ins and that these check-ins were part of his conditions of release. See ECF No. 9-1 at 3-4. On
the other hand, Petitioner contests the assertions raised in the declaration and does not concede
either that biometric check-ins were part of the conditions of his release or that Petitioner failed
to meet any of his conditions of release. Petitioner also argues that this reason for Petitioner’s
detention may be pretextual, as though Respondents claim that Petitioner missed ten biometric
check-ins in 2024 and only one in 2025, Petitioner was not re-detained until 2026. Reply at 5-6.
Petitioner notes that “[i]f the alleged 2024 reporting violations truly demonstrated that
[Petitioner] posed a flight risk or otherwise justified detention, ICE would logically have
increased supervision or revoked release at that time.” Id. at 6.
Outside of the deportation officer’s declaration, which provides no detail as to how or
why the check-ins were part of Petitioner’s conditions of release and does not address how the
attesting officer became aware of these alleged violations, Respondents provide no evidence or
documentation that might suggest either that the check-ins were part of Petitioner’s conditions of
release or that Petitioner missed these check-ins. And as Petitioner points out, if Petitioner’s
missed check-ins were truly an issue, Respondents logically should have acted to re-detain
Petitioner long ago; this greatly increases the likelihood that the stated reason for Petitioner’s re-
detention was pretextual. Furthermore, the court notes there is no suggestion here that Petitioner
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presents a flight risk and finds it significant that releasing Petitioner would merely return matters
to the status quo before Petitioner was re-detained without being provided with due process. Cf.
Ramirez Tesara, 800 F. Supp. 3d at 1138 (noting in a similar context that “[t]he Court finds that
Petitioner’s request for immediate release is necessary to restore the status quo ante litem,” or the
last uncontested status which preceded the pending controversy) (citing GoTo.com, Inc. v. Walt
Disney Co., 202 F.3d 1199, 1210 (9th Cir. 2000); Tanner Motor Livery, Ltd. v. Avis, Inc., 316 F.2d
804, 809 (9th Cir. 1963)). Accordingly, although acknowledging that these circumstances present
a somewhat close call, the court finds that under the broad discretion granted to it here, Petitioner
should be immediately released.
G. Applicable Standard for Any Future Pre-Deprivation Hearing
Finally, Petitioner states that “at any future pre-deprivation hearing, the Government must
demonstrate the justification for detention by clear and convincing evidence.” Respondents do
not oppose this assertion. The court finds broad support for this proposition across courts
nationwide and, in the absence of any opposition from Respondents, agrees with Petitioner. See,
e.g., Trejo, 807 F. Supp. 3d at 712 (“The weight of authority also holds that when ordering a
bond hearing as a habeas remedy, the burden of proof should be on the Government” to prove
their case by clear and convincing evidence); Velasco Lopez, 978 F.3d at 856 n.14 (2d Cir. 2020)
(collecting cases). Accordingly, if Respondents ultimately do hold an immigration court hearing
to determine whether Petitioner’s detention is appropriate, Respondents must carry their burden
by clear and convincing evidence.
The court therefore concludes that pursuant to Petitioner’s procedural due process claim,
Petitioner is entitled to the relief he requests in his Petition. Accordingly, the court need not reach
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Petitioner’s substantive due process claim.
H. Request for Costs and Fees
Regarding Petitioner’s request for costs and fees, “the Court notes that under Local Rule
54.3, a motion for attorney fees shall be supported by affidavit. Therefore, Petitioner may file a
motion for attorney fees that complies with the applicable rules.” L.G. v. Choate, 744 F. Supp. 3d
1172, 1187 (D. Colo. 2024) (cleaned up) (citations omitted); see also, e.g., Loa Caballero v.
Baltazar, No. 25-cv-03120-NYW, 2025 WL 2977650, at *9 n.8 (D. Colo. Oct. 22, 2025)
(holding the same).
CONCLUSION
For the foregoing reasons, the court respectfully GRANTS Petitioner’s Petition for Writ
of Habeas Corpus, ECF No. 1, and orders Respondents to release Petitioner from detention
within one day of the date of this Order. Respondents shall file a status report in order to certify
compliance within five days of the date of this Order.
Additionally, Respondents are enjoined from re-detaining Petitioner absent providing
Petitioner with written notice and a hearing prior to re-detention. If Respondents do seek to re-
detain Petitioner, at this pre-detention hearing, Respondents will bear the burden of proof by
clear and convincing evidence that Petitioner’s re-detention is warranted.
DATED: March 5, 2026 	BY THE COURT:
______________________________
Susan Prose
United States Magistrate Judge
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