(HC) Abdul-Samed v. Warden of the Golden State Annex Detention Facility

[8] UNITED STATES DISTRICT COURT [9] EASTERN DISTRICT OF CALIFORNIA [10] 11 ABUBAKAR ABDUL-SAMED, Case No. 1:25-cv-00098-SAB-HC 12 Petitioner, ORDER GRANTING IN PART PETITION FOR WRIT OF HABEAS CORPUS, 13 v. DENYING RESPONDENT’S MOTION TO DISMISS, GRANTING IN PART 14 WARDEN OF THE GOLDEN STATE PETITIONER’S MOTION FOR RELEASE, ANNEX DETENTION FACILITY, et al., AND DIRECTING RESPONDENT TO 15 PROVIDE PETITIONER WITH BOND Respondents. HEARING BEFORE IMMIGRATION 16 JUDGE 17 (ECF Nos. 9, 10) [18] 19 Petitioner is an immigration detainee proceeding pro se with a petition for writ of habeas 20 corpus pursuant to 28 U.S.C. § 2241 . The parties have consented to the jurisdiction of a United 21 States Magistrate Judge. (ECF Nos. 6–8.) 22 I. 23 BACKGROUND 24 A. Immigration Proceedings 25 Petitioner is a native and citizen of Ghana. (ECF No. 9-1 at 3.1) On March 13, 2024, 26 Petitioner arrived at San Francisco International Airport (“SFO”) aboard Cathay Pacific Airways 27 flight 870 (“Flight 870”). Petitioner presented himself to U.S. Customs and Border Patrol for 1 inspection. When asked for his travel documents, Petitioner stated that he did not have a passport 2 or any other document to show. Petitioner was detained and, upon questioning, admitted that he 3 boarded Flight 870 with a fraudulent Danish passport that he purchased in Ghana. Petitioner 4 admitted he flushed the fraudulent Danish passport down the airplane toilet while in flight 5 enroute to SFO. (ECF No. 9-1 at 3, 8–10.) 6 The Department of Homeland Security (“DHS”) detained Petitioner and initiated removal 7 proceedings, charging Petitioner with removability under sections 212(a)(7)(A)(i)(I) and 8 212(a)(6)(C)(i) of the Immigration and Nationality Act (“INA”), as an arriving alien without 9 valid entry documents and who sought to procure admission into the United States by fraud or 10 willfully misrepresenting a material fact. (ECF No. 9-1 at 3, 12, 14.) 11 At the first master calendar hearing in removal proceedings on May 7, 2024, Petitioner 12 requested and received a continuance to apply for relief from removal and seek counsel. 13 Subsequently, Petitioner requested and received at least six additional continuances.2 (ECF No. 14 9-1 at 3–5.) On October 16, 2024, Petitioner submitted an application for asylum and 15 withholding of removal under INA § 241(b)(3) and withholding of removal under the 16 Convention Against Torture (“CAT”). (ECF No. 9-1 at 4.) An immigration judge (“IJ”) has 17 sustained the removal charges against Petitioner, who admitted the factual allegations in the 18 Notice to Appear (“NTA”) and conceded removability as charged. (ECF No. 9-1 at 5.) 19 Based on the record currently before the Court, Petitioner’s next hearing before an IJ in 20 removal proceedings was scheduled for April 9, 2025, and Petitioner’s applications for relief 21 from removal are still pending. (ECF No. 9-1 at 5, 30.) 22 B. Requests for Release on Parole 23 On July 30, 2024, Petitioner submitted a request for release on parole to DHS’s 24 Enforcement and Removal Operations (“ERO”) Bakersfield sub-office’s Detained Unit, which 25 deemed the request incomplete and requested Petitioner to submit documentation. (ECF No. 9-1 26 at 4.) On December 17, 2024, Petitioner submitted additional documents in support of his request [27] 2 Deportation Officer Munñoz declares that “Petitioner requested and received seven additional continuances,” but 1 for release on parole to the ERO Bakersfield sub-office’s Detained Unit, which again deemed the 2 request incomplete and requested Petitioner to submit documentation. (ECF No. 9-1 at 4–5.) 3 On February 28, 2025, Petitioner inquired whether ERO had completed a parole review 4 for his case. On March 18, 2025, ERO conducted a review despite not having been provided all 5 the documentation required for parole review. Petitioner’s request was denied because the 6 documents provided did not support parole release for an urgent humanitarian reason or 7 significant public benefit. (ECF No. 9-1 at 5.) 8 C. Requests for Custody Redetermination in Immigration Court 9 On August 13, 2024, Petitioner requested a custody redetermination hearing in bond 10 proceedings with an IJ. (ECF No. 9-1 at 4.) On August 22, 2024, an IJ denied Petitioner’s request 11 because Petitioner “is classified as an arriving alien, and the Court lacks jurisdiction for his 12 request for bond under INA s. 236(a).” (Id. at 4, 18.) On November 4, 2024, Petitioner requested 13 a second custody redetermination hearing in bond proceedings with an IJ. (Id. at 4.) On 14 November 8, 2024, an IJ denied Petitioner’s request for a change in custody status, stating: 15 [Petitioner] already had a bond hearing on August 22, 2024. At that hearing, the Court denied [Petitioner]’s bond request since it did not have jurisdiction to set 16 bond as [Petitioner] is an arriving alien. [Petitioner] has not established a change of circumstances since this hearing. Moreover, he is still an arriving alien, so the 17 Court still does not have jurisdiction to set bond. 18 (ECF No. 9-1 at 21.) 19 Subsequently, Petitioner requested custody redetermination hearings in bond proceedings 20 with an IJ on December 3, 2024 and February 7, 2025. (ECF No. 9-1 at 4, 5.) Again, the IJ 21 denied bond, finding that the immigration court still lacked jurisdiction to set bond because 22 Petitioner is an arriving alien and Petitioner had not established a change of circumstances since 23 his prior request. (Id. at 24, 27.) 24 D. Federal Habeas Proceedings 25 On January 22, 2025, Petitioner filed the instant petition for writ of habeas corpus, 26 challenging his prolonged immigration detention on procedural due process grounds. (ECF No. 27 /// 1 1.) On March 28, 2025, Respondent filed a motion to dismiss. (ECF No. 9.) On May 5, 2025, 2 Petitioner filed a motion requesting release.3 (ECF No. 10.) 3 II. 4 DISCUSSION 5 A. Overview of Caselaw Regarding Immigration Detention Statutes 6 An intricate statutory scheme governs the detention of noncitizens during removal 7 proceedings and after a final removal order is issued. “Where an alien falls within this statutory 8 scheme can affect whether his detention is mandatory or discretionary, as well as the kind of 9 review process available to him if he wishes to contest the necessity of his detention.” Prieto10 Romero v. Clark, 534 F.3d 1053, 1057 (9th Cir. 2008). 11 “Four statutes grant the Government authority to detain noncitizens who have been 12 placed in removal proceedings: 8 U.S.C. §§ 1225 (b) (‘Section 1225(b)’), 1226(a) (‘Subsection 13 A’), 1226(c) (‘Subsection C’), and 1231(a) (‘Section 1231(a)’).” Avilez v. Garland, 69 F.4th 14 525, 529 (9th Cir. 2023). “Subsection A is the default detention statute for noncitizens in 15 removal proceedings and applies to noncitizens ‘[e]xcept as provided in [Subsection C].’” Id. 16 (alteration in original) (quoting 8 U.S.C. § 1226 (a)). “[D]etention under Subsection A is 17 discretionary” and “provides for release on bond or conditional parole.” Id. “Subsection C 18 provides for the detention of ‘criminal aliens’ and states that ‘[t]he Attorney General shall take 19 into custody any alien who’ is deportable or inadmissible based on a qualifying, enumerated 20 offense.” Id. at 530 (alteration in original) (quoting 8 U.S.C. § 1226 (c)). “[D]etention under 21 Subsection C is mandatory,” and “[r]elease under Subsection C is limited to certain witness 22 protection purposes.” Id. “Section 1231(a) applies to detention after the entry of a final order of 23 removal” and “governs detention during a ninety-day ‘removal period’ after the conclusion of 24 removal proceedings.” Id. at 530–31. 25 Here, Respondent asserts that Petitioner is subject to mandatory detention pursuant to 8 26 U.S.C. § 1225 (b). (ECF No. 9 at 2.) “Under . . . 8 U.S.C. § 1225 , an alien who ‘arrives in the [27] 3 In the motion, Petitioner stated he had not received any response to the petition from Respondent. The following day, Respondent filed a certificate of service indicating that Respondent’s motion to dismiss was re-served and 1 United States,’ or ‘is present’ in this country but ‘has not been admitted,’ is treated as ‘an 2 applicant for admission.’” Jennings v. Rodriguez, 583 U.S. 281, 287 (2018) (quoting 8 3 § 1225(a)(1)). “Applicants for admission must ‘be inspected by immigration officers’ to ensure 4 that they may be admitted into the country consistent with U.S. immigration law.” Jennings, 583 5 U.S. at 287 (quoting 8 U.S.C. § 1225 (a)(3)). “Section 1225(b)(1) applies to aliens initially 6 determined to be inadmissible due to fraud, misrepresentation, or lack of valid documentation.” 7 Jennings, 583 U.S. at 287 . Section “1225(b)(1) . . . authorize[s] the detention of certain aliens.” [8] Id. 9 Aliens covered by § 1225(b)(1) are normally ordered removed “without further hearing or review” pursuant to an expedited removal process. § 1225(b)(1)(A)(i). 10 But if a § 1225(b)(1) alien “indicates either an intention to apply for asylum ... or a fear of persecution,” then that alien is referred for an asylum interview. 11 § 1225(b)(1)(A)(ii). If an immigration officer determines after that interview that the alien has a credible fear of persecution, “the alien shall be detained for further 12 consideration of the application for asylum.” § 1225(b)(1)(B)(ii). 13 Jennings, 583 U.S. at 287 . “[A]pplicants for admission may be temporarily released on parole 14 ‘for urgent humanitarian reasons or significant public benefit.’” Id. at 288 (quoting 8 U.S.C. 15 § 1182(d)(5)(A)) (citing 8 C.F.R §§ 212.5(b), 235.3 (2017)). “The Attorney General [has] 16 interpreted 8 U.S.C. § 1225 (b)(1)(B)(ii) to require mandatory detention without bond hearings 17 for asylum seekers who were initially subject to expedited removal but later transferred to full 18 removal proceedings after establishing a credible fear.” Padilla v. U.S. Immigr. & Customs 19 Enf’t, 704 F. Supp. 3d 1163 , 1168 (W.D. Wash. 2023) (citing Matter of M-S-, 27 I. & N. Dec. 20 509, 515–17 (2019)). 21 “[I]n a series of decisions since 2001, ‘the Supreme Court and [the Ninth Circuit] have 22 grappled in piece-meal fashion with whether the various detention statutes may authorize 23 indefinite or prolonged detention of detainees and, if so, may do so without providing a bond 24 hearing.’” Rodriguez v. Robbins (Rodriguez II), 715 F.3d 1127, 1134 (9th Cir. 2013) (quoting 25 Rodriguez v. Hayes (Rodriguez I), 591 F.3d 1105, 1114 (9th Cir. 2010)). In Zadvydas v. Davis, 26 two noncitizens, who had been ordered removed but whose removal could not be effectuated due 27 to lack of a repatriation treaty or because their designated countries refused to accept them, 1 beyond the ninety-day removal period. Applying the canon of constitutional avoidance because a 2 “statute permitting indefinite detention of an alien would raise a serious constitutional problem,” 3 the Supreme Court “read an implicit limitation into” § 1231(a)(6) and held that the statute “limits 4 an alien’s post-removal-period detention to a period reasonably necessary to bring about that 5 alien’s removal from the United States.” Zadvydas, 533 U.S. at 689. Thus, “after a presumptively 6 reasonable six-month period of post-removal period detention, the alien was entitled to release if 7 he successfully demonstrated that there was ‘good reason to believe there is no significant 8 likelihood of removal in the reasonably foreseeable future.’” Prieto-Romero, 534 F.3d at 1062 9 (quoting Zadvydas, 533 U.S. at 701). 10 In Demore v. Kim, 538 U.S. 510 (2003), the Supreme Court rejected a facial challenge to 11 mandatory detention under 8 U.S.C. § 1226 (c). Demore distinguished Zadvydas by emphasizing 12 detention under § 1226(c) has a “definite termination point” and “in the majority of the cases it 13 lasts for less than the 90 days we considered presumptively valid in Zadvydas.” Id. at 529 (noting 14 that “in 85% of the cases in which aliens are detained pursuant to § 1226(c), removal 15 proceedings are completed in an average time of 47 days and a median of 30 days” and “[i]n the 16 remaining 15% of cases, in which the alien appeals the decision of the Immigration Judge to the 17 Board of Immigration Appeals, appeal takes an average of four months, with a median time that 18 is slightly shorter”).4 However, Justice Kennedy’s concurring opinion, which created the 19 majority rejecting the facial challenge to mandatory detention under § 1226(c), specifically noted 20 that “a lawful permanent resident alien such as respondent could be entitled to an individualized [21] 22 4 “Thirteen years after the decision in Demore, the government admitted that the figures it provided to the Court, and which the Court relied on, contained ‘several significant errors.’” Rodriguez v. Nielsen, No. 18-cv-04187-TSH, 2019 WL 7491555 , at *5 (N.D. Cal. Jan. 7, 2019) (citations omitted). Although the “Supreme Court had inferred 23 from the government’s brief in Demore that in cases in which the alien appeals, the time of detention was ‘about five months,’” the government’s 2016 letter clarified that for years 1999–2001, the “length of detention in cases where 24 the alien appealed [was] 382 days, or a little more than a year.” Id. (citations omitted). 25 [I]n cases in which an appeal was filed, in most years the average length of detention was more than 300 days, or more than double the five-month estimate the Court relied on in Demore. The data from the Jennings case show that 460 members of the respondent section 1226(c) subclass 26 were detained for an average of 427 days (over fourteen months) with some individual detention periods exceeding four years. Indeed, when the GAO conducted a study, it found that as of 2015, 27 the median length of time it takes the BIA to complete an appeal of a removal order exceeds 450 days. 1 determination as to his risk of flight and dangerousness if the continued detention became 2 unreasonable or unjustified.” Demore, 538 U.S. at 532 (Kennedy, J., concurring). 3 In the Rodriguez class action, noncitizens “challenge[d] their prolonged detention 4 pursuant to 8 U.S.C. §§ 1225 (b), 1226(a), 1226(c), and 1231(a) without individualized bond 5 hearings and determinations to justify their continued detention.” Rodriguez v. Robbins 6 (Rodriguez III), 804 F.3d 1060, 1065 (9th Cir. 2015). In Rodriguez II, to avoid constitutional 7 concerns, the Ninth Circuit held that mandatory detention under § 1226(c) and § 1225(b) is 8 implicitly time-limited and expires after six months. Thereafter, the government’s authority to 9 detain shifts to § 1226(a), which requires a bond hearing governed by the procedural 10 requirements set forth in Singh v. Holder, 638 F.3d 1196 (9th Cir. 2011).5 Rodriguez II, 715 F.3d 11 at 1138–44. In Rodriguez III, the Ninth Circuit held that for noncitizens detained under 8 U.S.C. 12 §§ 1225(b), 1226(a), and 1226(c), “the government must provide periodic bond hearings every 13 six months so that noncitizens may challenge their continued detention as ‘the period of . . . 14 confinement grows.’” Rodriguez III, 804 F.3d at 1089 (quoting Diouf v. Napolitano (Diouf II), [15] 634 F.3d 1081, 1091 (9th Cir. 2011)). 16 In Jennings v. Rodriguez, the Supreme Court rejected the Ninth Circuit’s interpretation 17 that §§ 1225(b) and 1226(c) included “an implicit 6–month time limit on the length of mandatory 18 detention” and reversed Rodriguez III, holding that the Ninth Circuit misapplied the 19 constitutional avoidance canon to find a statutory right under 8 U.S.C. § 1226 (a) to “periodic 20 bond hearings every six months in which the Attorney General must prove by clear and 21 convincing evidence that the alien’s continued detention is necessary.” Jennings, 583 U.S. 296 , 22 304, 306. The Supreme Court remanded the case to the Ninth Circuit “to consider [the] 23 constitutional arguments on their merits.” Id. at 312 . The Ninth Circuit, in turn, remanded the 24 case to the district court to consider the constitutional arguments in the first instance, but noted 25 that it had “grave doubts that any statute that allows for arbitrary prolonged detention without [26] 5 In Singh, the Ninth Circuit provided guidance as to the procedural requirements for the bond hearings. 27 Specifically, “the government must prove by clear and convincing evidence that an alien is a flight risk or a danger to the community to justify denial of bond.” Singh, 638 F.3d at 1208 . Due process also requires a contemporaneous 1 any process is constitutional or that those who founded our democracy precisely to protect 2 against the arbitrary deprivation of liberty would have thought so.” Rodriguez v. Marin, 909 F.3d 3 252, 255, 256 (9th Cir. 2018). 4 Following Jennings, the Ninth Circuit upheld the “construction of § 1231(a)(6) to require 5 a bond hearing before an IJ after six months of detention for an alien whose release or removal is 6 not imminent” with the government “bear[ing] a clear and convincing burden of proof at such a 7 bond hearing to justify an alien’s continued detention.” Aleman Gonzalez v. Barr, 955 F.3d 762 , 8 766 (9th Cir. 2020). The Supreme Court reversed on other grounds, Garland v. Aleman 9 Gonzalez, 596 U.S. 543, 546 (2022), and “[i]n a companion case decided that same day arising 10 from the Third Circuit, Johnson v. Arteaga-Martinez, [596] U.S. [573], 142 S. Ct. 1827 , 213 11 L.Ed.2d 125 (2022), the Supreme Court separately rejected [the Ninth Circuit’s] statutory 12 interpretation in Aleman Gonzalez,” Rodriguez Diaz v. Garland, 53 F.4th 1189 , 1201 (9th Cir. 13 2022), holding that “there is no plausible construction of the text of § 1231(a)(6) that requires the 14 Government to provide bond hearings before immigration judges after six months of detention, 15 with the Government bearing the burden of proving by clear and convincing evidence that a 16 detained noncitizen poses a flight risk or a danger to the community,” Arteaga-Martinez, 596 17 U.S. at 581. Arteaga-Martinez declined to reach the constitutional claims. Id. at 583. 18 “[A]fter the Supreme Court’s decisions in Jennings and Arteaga-Martinez, it remain[ed] 19 undetermined whether the Due Process Clause requires additional bond procedures under any 20 immigration detention statute” until the Ninth Circuit’s decision in Rodriguez Diaz, which 21 concerned a petitioner detained pursuant to 8 U.S.C. § 1226 (a) who sought a second bond 22 hearing before an IJ at which the government would bear the burden of proof by clear and 23 convincing evidence. Rodriguez Diaz, 53 F.4th at 1201, 1193. The Ninth Circuit held that “due 24 process does not require the procedures Rodriguez Diaz would have us impose” because 25 “Section 1226(a) offers substantial procedural protections to detained persons, and Rodriguez 26 Diaz has not shown that these procedures violate due process, either facially or as applied.” Id. 27 However, the Ninth Circuit has yet to take a position on whether due process requires a 1 1219, 1223 (9th Cir. 2022) (“Whether due process requires a bond hearing for aliens detained 2 under § 1226(c) is not before us today. And we take no position on that question.”), vacated and 3 remanded on other grounds, 144 S. Ct. 1339 (2024); Avilez, 69 F.4th at 538 (declining to make a 4 determination on whether due process required a bond hearing for noncitizen detained under 5 § 1226(c) and remanding to district court for consideration of due process claim). The Ninth 6 Circuit has recognized that “district courts throughout this circuit have ordered immigration 7 courts to conduct bond hearings for noncitizens held for prolonged periods under § 1226(c)” 8 based on due process and noted that “[a]ccording to one such court order, the ‘prolonged 9 mandatory detention pending removal proceedings, without a bond hearing, will—at some 10 point—violate the right to due process.’” Martinez, 36 F.4th at 1223 (citation omitted). 11 B. Procedural Due Process 12 1. Bright-Line Rule 13 Petitioner asserts that “[d]etention without a bond hearing is unconstitutional when it 14 exceeds six months.” (ECF No. 1 at 10.) Respondent notes that in Jennings, the Supreme Court 15 rejected the Ninth Circuit’s application of the constitutional avoidance canon to find a statutory 16 right to periodic bond hearings every six months. (ECF No. 9 at 5.) Three circuit courts of 17 appeals have “reject[ed] a bright-line constitutional rule requiring a bond hearing after six 18 months of detention—or after any fixed period of detention—in the context of a Congressional 19 mandate, in the immigration context, to detain.” Black v. Decker, 103 F.4th 133 , 150 (2d Cir. 20 2024) (citing Reid v. Donelan, 17 F.4th 1 , 7–9 (1st Cir. 2021); German Santos v. Warden Pike 21 Cnty. Corr. Facility, 965 F.3d 203, 211 (3d Cir. 2020)). The Court will follow this line of cases 22 and declines “to adopt a presumption of reasonableness or unreasonableness of any duration of 23 detention.” Black, 103 F.4th at 150 (internal quotation mark omitted) (quoting German Santos, [24] 965 F.3d at 211 ). 25 2. Demore 26 Respondent contends that “the U.S. Constitution does not require the United States to 27 release a non-citizen during the pendency of removal proceedings when the non-citizen, as in 1 (identity theft) to unlawfully enter, has entered without permission or application, and thereafter 2 demanded asylum or other excuse to remain,” seemingly relying on Demore v. Kim. (ECF No. 9 3 at 4–5.) 4 As noted above, Demore rejected a facial challenge to mandatory detention under 8 5 U.S.C. § 1226 (c) and “said nothing about whether due process may eventually require a 6 hearing.” Black, 103 F.4th at 149. In Nielsen v. Preap, 586 U.S. 392 (2019), the Supreme Court 7 explicitly stated that as-applied constitutional challenges to 8 U.S.C. § 1226 (c) are not 8 foreclosed. Preap, 586 U.S. at 420 . Furthermore, Demore does not directly address whether 9 § 1225(b) as applied to Petitioner is unconstitutional. Therefore, Demore does not preclude relief 10 and dismissal is not warranted on this ground. 11 Although the Ninth Circuit has yet to take a position on whether due process requires a 12 bond hearing for noncitizens detained under 8 U.S.C. § 1225 (b), the First, Second, and Third 13 Circuits have found that “the Due Process Clause imposes some form of ‘reasonableness’ 14 limitation upon the duration of detention . . . under [section 1226(c)].” Reid, 17 F.4th at 7 15 (alterations in original) (citation omitted). Accord Black, 103 F.4th at 138 (“conclud[ing] that a 16 noncitizen’s constitutional right to due process precludes his unreasonably prolonged detention 17 under section 1226(c) without a bond hearing”); German Santos, 965 F.3d at 209–10 (holding 18 that after Demore and Jennings, petitioners detained pursuant to § 1226(c) can still bring as19 applied challenges to their detention and that due process affords them a bond hearing once 20 detention becomes unreasonable). Additionally, “essentially all district courts that have 21 considered the issue agree that prolonged mandatory detention pending removal proceedings, 22 without a bond hearing, ‘will—at some point—violate the right to due process.’” Martinez v. 23 Clark, No. C18-1669-RAJ-MAT, 2019 WL 5968089 , at *6 (W.D. Wash. May 23, 2019) (citation 24 omitted), report and recommendation adopted, 2019 WL 5962685 (W.D. Wash. Nov. 13, 2019). 25 Based on the foregoing, the Court finds that unreasonably prolonged mandatory 26 immigration detention without an individualized bond hearing violates due process. Accordingly, 27 Respondent’s motion to dismiss is denied. The Court now turns to whether Petitioner’s detention 1 3. Lopez Test 2 Courts in this circuit have taken various approaches to determining whether procedural 3 due process requires a bond hearing in a particular case. See Rodriguez v. Nielsen, No. 18-cv4 04187-TSH, 2019 WL 7491555 , at *6 (N.D. Cal. Jan. 7, 2019) (six-month bright-line rule in 5 § 1226(c) context); Banda v. McAleenan, 385 F. Supp. 3d 1099, 1117 (W.D. Wash. 2019) (six6 factor test that considers “(1) the total length of detention to date; (2) the likely duration of future 7 detention; (3) the conditions of detention; (4) delays in the removal proceedings caused by the 8 detainee; (5) delays in the removal proceedings caused by the government; and (6) the likelihood 9 that the removal proceedings will result in a final order of removal” in § 1225(b) context); Juarez 10 v. Wolf, No. C20-1660-RJB-MLP, 2021 WL 2323436 , at *4 (W.D. Wash. May 5, 2021) (eight11 factor test that considers “whether the detention will exceed the time the petitioner spent in 12 prison for the crime that made him [or her] removable” and “the nature of the crimes the 13 petitioner committed” in addition to the six factors set forth above in § 1226(c) context 14 (alteration in original)), report and recommendation adopted, 2021 WL 2322823 (W.D. Wash. 15 June 7, 2021); Henriquez v. Garland, No. 5:22-cv-00869-EJD, 2022 WL 2132919 , at *5–6 (N.D. 16 Cal. June 14, 2022) (applying Mathews v. Eldridge test to petitioner’s due process claim 17 requesting initial bond hearing in § 1226(c) context). 18 This Court previously found that “[t]o determine whether § 1226(c) detention has become 19 unreasonable, the Court will look to the total length of detention to date, the likely duration of 20 future detention, and the delays in the removal proceedings caused by the petitioner and the 21 government.” Lopez v. Garland, 631 F. Supp. 3d 870 , 879 (E.D. Cal. 2022) (noting Mathews 22 factors more suited to determining whether due process requires a second bond hearing and 23 rejecting other multi-factor tests). Although Lopez concerned mandatory detention under 24 § 1226(c), the Court finds Lopez’s reasoning applies equally to mandatory detention under 25 § 1225(b). Accordingly, the Court will apply the Lopez test.6 [26] 6 In the petition, Petitioner applies the Mathews v. Eldridge, 424 U.S. 319 (1976) test, and alternatively, the multifactor reasonableness test adopted by the Third Circuit in German Santos, 965 F.3d 203 . (ECF No. 1 at 11.) 27 Respondent addresses the Mathews factors in the motion to dismiss. (ECF No. 9 at 6–8.) Although the parties have not specifically addressed the Lopez factors, the Court will apply the Lopez test to the record currently before the 1 a. Total Length of Detention to Date 2 Petitioner has been in immigration detention since March 13, 2024—approximately 3 sixteen months. Courts have found shorter lengths of mandatory immigration detention without a 4 bond hearing to be unreasonable. See, e.g., Black, 103 F.4th at 137–38 (affirming district court 5 judgment ordering bond hearing for petitioner detained seven months); Perera v. Jennings, No. 6 21-cv-04136-BLF, 2021 WL 2400981 (N.D. Cal. June 11, 2021) (granting TRO and ordering 7 individualized bond hearing for petitioner detained almost two months); Sajous v. Decker, No. 8 18-CV-2447 (AJN), 2018 WL 2357266 , at *1, 11 (S.D.N.Y. May 23, 2018) (granting 9 preliminary injunction and ordering individualized bond hearing for petitioner detained more 10 than eight months); Jarpa v. Mumford, 211 F. Supp. 3d 706, 710 , 717 n.6 (D. Md. 2016) 11 (granting habeas relief and ordering individualized bond hearing for petitioner detained nearly 12 eleven months). But see De Oliveira Viegas v. Green, 370 F. Supp. 3d 443 , 448–49 (D.N.J. 13 2019) (“As a general matter, courts in this District have found detention for a year, or just over a 14 year, insufficient to support an as-applied challenge to a § 1226(c) detention post-Jennings.”). 15 “In general, ‘[a]s detention continues past a year, courts become extremely wary of 16 permitting continued custody absent a bond hearing.’” Gonzalez v. Bonnar, No. 18-cv-0532117 JSC, 2019 WL 330906 , at *3 (N.D. Cal. Jan. 25, 2019) (alteration in original) (quoting Muse v. 18 Sessions, 409 F. Supp. 3d 707 , 716 (D. Minn. 2018)). Here, Petitioner has been detained for one 19 year and four months. Accordingly, the Court finds that the total length of detention factor 20 weighs in favor of Petitioner. 21 b. Likely Duration of Future Detention 22 “[A]s have nearly all the other courts to consider this issue . . . the starting point of the 23 analysis is the length of detention—both how long the petitioner has been detained and how long 24 the detention is likely to last.” Gonzalez, 2019 WL 330906 , at *5 (emphasis added) (collecting 25 cases). “When the alien’s removal proceedings are unlikely to end soon, this suggests that 26 continued detention without a bond hearing is unreasonable.” German Santos, 965 F.3d at 211 . 27 Here, based on the record currently before the Court, Petitioner’s applications for relief 1 The usual removal process involves an evidentiary hearing before an immigration judge, and at that hearing an alien may attempt to show that he or she should not 2 be removed. Among other things, an alien may apply for asylum on the ground that he or she would be persecuted if returned to his or her home country. 3 § 1229a(b)(4); 8 C.F.R. § 1240.11 (c) (2020). If that claim is rejected and the alien is ordered removed, the alien can appeal the removal order to the Board of 4 Immigration Appeals and, if that appeal is unsuccessful, the alien is generally entitled to review in a federal court of appeals. 8 U.S.C. §§ 1229a(c)(5), 1252(a). [5] 6 Dep’t of Homeland Sec. v. Thuraissigiam, 591 U.S. 103, 108 (2020). 7 Although the Court recognizes that future events are difficult to predict, the Court 8 nevertheless finds that in the event Petitioner’s applications for relief from removal are denied, 9 Petitioner’s possible administrative appeal and judicial review by the Ninth Circuit will be 10 sufficiently lengthy such that this factor weighs in favor of Petitioner. See German Santos, 965 11 F.3d at 212 (finding that appeal of cancellation of removal order with the BIA “could take 12 months” and potential review in the Third Circuit “would add months more in prison” such that 13 “the likelihood that [petitioner’s] detention will continue strongly supports a finding of 14 unreasonableness”); Banda, 385 F. Supp. 3d at 1119 (finding that appeal of removal order with 15 the BIA and review in the Ninth Circuit may take up to two years or longer and favors granting 16 petitioner a bond hearing). 17 c. Delays in Removal Proceedings Caused by Petitioner and Government 18 In immigration court, Petitioner has requested and received at least seven continuances to 19 apply for relief from removal, seek counsel, and obtain documents to support his application for 20 relief from removal. (ECF No. 9-1 at 3–5.) The government has not sought nor received any 21 continuances. (Id. at 3.) Accordingly, the Court finds that the delay factor weighs against 22 Petitioner. 23 4. Weighing the Factors 24 Both the length of detention to date, “which is the most important factor,” Banda, 385 F. 25 Supp. 3d at 1118,7 and the likely duration of future detention weigh in favor of finding continued 26 detention unreasonable. The delay factor weighs against Petitioner, but “the mere fact that a 27 noncitizen opposes his removal is insufficient to defeat a finding of unreasonably prolonged 1 detention, especially where the Government fails to distinguish between bona fide and frivolous 2 arguments in opposition.” Hernandez v. Decker, No. 18-CV-5026 (ALC), 2018 WL 3579108 , at 3 *9 (S.D.N.Y. July 25, 2018). See Liban M.J. v. Sec’y of Dep’t of Homeland Sec., 367 F. Supp. 4 3d 959, 965 (D. Minn. 2019) (“Petitioner is entitled to raise legitimate defenses to removal . . . 5 and such challenges to his removal cannot undermine his claim that detention has become 6 unreasonable.”); Gonzalez, 2019 WL 330906 , at *4 (“The government cites no authority for the 7 proposition that a petitioner who pursues his available legal remedies must forego any challenge 8 to the reasonableness of his detention in the interim and the Court is unaware of any.”). 9 The Court appreciates that the government has a strong interest in enforcing immigration 10 laws, ensuring the presence of noncitizens at their removal proceedings, and protecting the 11 public from danger. However, the “government interest at stake here is not the continued 12 detention of Petitioner, but the government’s ability to detain him without a bond hearing.” 13 Zagal-Alcaraz v. ICE Field Off., No. 3:19-cv-01358-SB, 2020 WL 1862254 , at *7 (D. Or. Mar. 14 25, 2020) (emphasis added), report and recommendation adopted, 2020 WL 1855189 (D. Or. 15 Apr. 13, 2020). See Henriquez, 2022 WL 2132919 , at *5 (“Although the Government has a 16 strong interest in enforcing the immigration laws and in ensuring that lawfully issued removal 17 orders are promptly executed, the Government’s interest in detaining Petitioner without 18 providing an individualized bond hearing is low.”). On the other hand, it “is beyond dispute” that 19 Petitioner’s interest here is “fundamental.” Hernandez v. Sessions, 872 F.3d 976, 993 (9th Cir. 20 2017) (citing Foucha v. Louisiana, 504 U.S. 71, 80 (1992)). “Freedom from imprisonment— 21 from government custody, detention, or other forms of physical restraint—lies at the heart of the 22 liberty [the Due Process] Clause protects.” Zadvydas, 533 U.S. at 690. See Rodriguez Diaz, 53 23 F.4th at 1207 (“We have also held, more generally, that an individual’s private interest in 24 ‘freedom from prolonged detention’ is ‘unquestionably substantial.’” (quoting Singh, 638 F.3d at 25 1208)). Accordingly, the Court finds that Petitioner’s continued detention has become 26 unreasonable and due process requires that Petitioner be provided a bond hearing. 27 /// 1 C. Remedy 2 In the petition, Petitioner requests this Court hold a hearing to “determine that 3 Petitioner’s detention is not justified because the government has not established by clear and 4 convincing evidence that Petitioner presents a risk of flight or danger in light of available 5 alternatives to detention,” or in the alternative, order a bond “hearing before an immigration 6 judge where . . . to continue detention, the government must establish by clear and convincing 7 evidence that Petitioner presents a risk of flight or danger[.]” (ECF No. 1 at 19.) In the motion 8 for release, Petitioner requests release within seven days, or in the alternative, a bond hearing 9 before an immigration judge where the government bears the burden of proving dangerousness 10 or flight risk. (ECF No. 10.) Respondent has not addressed the issue of the appropriate relief 11 available to Petitioner. 12 “The Court finds, consistent with other post-Jennings cases, that the appropriate remedy 13 is a bond hearing before an immigration judge[.]” Lopez, 631 F. Supp. 3d at 882. See Doe v. 14 Becerra, 697 F. Supp. 3d 937 , 948 (N.D. Cal. 2023) (“[C]ourts in this Circuit have regularly 15 found that the IJ is the proper authority to conduct bond hearings and determine a detainee's risk 16 of flight or dangerousness to the community.” (citing Martinez, 36 F.4th at 1223 (“district courts 17 throughout this circuit have ordered immigration courts to conduct bond hearings for noncitizens 18 held for prolonged periods”))); Mansoor v. Figueroa, No. 3:17-cv-01695-GPC (NLS), 2018 WL 19 840253, at *4 (S.D. Cal. Feb. 13, 2018) (“The Court finds the IJ is uniquely qualified and 20 situated to make neutral administrative determinations about Petitioner’s eligibility for release on 21 bond and/or placement in a supervised release program[.]”). 22 The Court further finds that “the government must prove by clear and convincing 23 evidence that an alien is a flight risk or a danger to the community to justify denial of bond” and 24 that the bond hearing must comport with the other requirements of Singh v. Holder, 638 F.3d 25 1196, 1208 (9th Cir. 2011). See Martinez v. Clark, 124 F.4th 775, 785 (9th Cir. 2024) (stating 26 that “the BIA properly noted that the government bore the burden to establish by clear and 27 convincing evidence that Martinez is a danger to the community” with respect to a bond hearing 1 order “requir[ing] the government to show at such a bond hearing, by clear and convincing 2 evidence, the need for Black’s continued detention” under § 1226(c)); German Santos, 965 F.3d 3 at 214 (holding that in order to justify a noncitizen’s continued detention under § 1226(c) “the 4 Government bears the burden of persuasion by clear and convincing evidence. That evidence 5 must be individualized and support a finding that continued detention is needed to prevent him 6 from fleeing or harming the community”); Juarez, 2021 WL 2323436 , at *8 (requiring bond 7 hearing to comport with requirements of Singh); Banda, 385 F. Supp. 3d at 1120–21 (same); 8 Djelassi v. ICE Field Off. Dir., 434 F. Supp. 3d 917 , 923–24 (W.D. Wash. 2020) (same); 9 Martinez, 2019 WL 5968089 , at *11 (same and collecting cases). In the event Petitioner is 10 “determined not to be a danger to the community and not to be so great a flight risk as to require 11 detention without bond,” the immigration judge should consider Petitioner’s financial 12 circumstances and alternative conditions of release. Hernandez, 872 F.3d at 1000 . See Black, 103 13 F.4th at 138 (The district court “correctly directed the immigration judge (“IJ”), in setting his 14 bond and establishing appropriate terms for his potential release, to consider his ability to pay 15 and alternative means of assuring appearance.”). 16 III. 17 ORDER 18 Based on the foregoing, the Court HEREBY ORDERS that: 19 1. The petition for writ of habeas corpus (ECF No. 1) is GRANTED IN PART and 20 DENIED IN PART. The petition is GRANTED as to Petitioner’s procedural due process 21 claim and request for a bond hearing before an immigration judge. The petition is 22 DENIED in all other respects. 23 2. Respondent’s motion to dismiss (ECF No. 9) is DENIED. 24 3. Petitioner’s motion requesting release (ECF No. 10) is GRANTED IN PART and 25 DENIED IN PART. The motion is GRANTED as to Petitioner’s request for a bond 26 hearing before an immigration judge. The motion is DENIED in all other respects. 27 4. Within thirty (30) days of the date of service of this order, Respondent shall provide 1 with the requirements set forth in Singh v. Holder, 638 F.3d 1196 (9th Cir. 2011), and 2 where “the government must prove by clear and convincing evidence that [Petitioner] is a 3 flight risk or a danger to the community to justify denial of bond,” id. at 1203 . In the 4 event Petitioner is “determined not to be a danger to the community and not to be so great 5 a flight risk as to require detention without bond,” the immigration judge should consider 6 Petitioner’s financial circumstances and alternative conditions of release. Hernandez v. 7 Sessions, 872 F.3d 976, 1000 (9th Cir. 2017). [8] 9 IT IS SO ORDERED. FA. Se 10 | Dated: _ July 24, 2025 ; STANLEY A. BOONE 1] United States Magistrate Judge