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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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10 HILARIO M.R.,1 Case No. 1:24-cv-00998-EPG-HC

11 Petitioner, ORDER SUBSTITUTING WARDEN OF

MESA VERDE DENTENTION CENTER AS

12 v. RESPONDENT AND TERMINATING

OTHER NAMED RESPONDENTS

13 WARDEN, MESA VERDE DETENTION

CENTER,2 ORDER GRANTING PETITION FOR WRIT

14 OF HABEAS CORPUS IN PART, DENYING Respondent. PETITIONER’S MOTION FOR 15 TEMPORARY RESTRAINING ORDER AS

MOOT, AND DENYING RESPONDENT’S

16 MOTION TO DISMISS

17 (ECF Nos. 2, 9)

18 19 Petitioner Hilario M.R., represented by counsel, is a federal immigration detainee 20 proceeding with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. The parties 21 have consented to the jurisdiction of a United States magistrate judge. (ECF Nos. 7, 10, 11.) For 22

23 1 The Court partially redacts Petitioner’s name to mitigate privacy concerns, as suggested by the Committee on Court Administration and Case Management of the Judicial Conference of the United 24 States. See Memorandum Re: Privacy Concern Regarding Social Security & Immigration Opinions (May 1, 2018), https://www.uscourts.gov/sites/default/files/18-cv-l-suggestion_cacm_0.pdf. 25 2 “[L]ongstanding practice confirms that in habeas challenges to present physical confinement—‘core challenges’—the default rule is that the proper respondent is the warden of the facility where the prisoner 26 is being held . . . .” Rumsfeld v. Padilla, 542 U.S. 426, 435 (2004). The Ninth Circuit has “affirm[ed] the application of the immediate custodian and district of confinement rules to core habeas petitions filed 27 pursuant to 28 U.S.C. § 2241, including those filed by immigrant detainees.” Doe v. Garland, 109 F.4th 1188, 1199 (9th Cir. 2024). Thus, the proper respondent is Petitioner’s immediate custodian, the Warden 1 the reasons set forth herein, the petition for writ of habeas corpus is granted in part and denied in 2 part, Petitioner’s motion for temporary restraining order is denied as moot, and Respondent’s 3 motion to dismiss is denied. 4 I. 5 BACKGROUND 6 Petitioner is a native and citizen of Mexico. (ECF No. 1 at 3, 7.3) Petitioner entered the 7 United States for the first time in 1992. (ECF No. 1 at 7; ECF No. 1-6.) On April 12, 2006, 8 Petitioner was convicted of attempted kidnapping and sentenced to an imprisonment term of 9 eighteen months. (ECF No. 1 at 7; ECF No. 14 at 3, 8.) Upon his release from prison, Petitioner 10 was detained by U.S. Immigration and Customs Enforcement (“ICE”) and served a final 11 administrative removal order on February 7, 2007. (ECF No. 1 at 8; ECF No. 14 at 3, 9.) On 12 February 8, 2007, Petitioner was removed to Mexico. (ECF No. 14 at 3, 10–11.) 13 Subsequently, Petitioner entered the United States without being admitted or paroled by 14 an immigration officer. (ECF No. 14 at 3, 12–15.) On February 25, 2021, Petitioner was 15 convicted for driving under the influence and sentenced to ten days in jail and three years of 16 summary probation. (ECF No. 1 at 7–8; ECF No. 1-21; ECF No. 14 at 3, 13.) On August 17, 17 2023, Petitioner was arrested by ICE officers and served with a Notice of Intent/Decision to 18 Reinstate Prior Order. (ECF No. 1 at 8; ECF No. 14 at 3–4, 12–16.) On October 4, 2023, 19 Petitioner participated in a reasonable fear interview with an asylum officer (“AO”), and the AO 20 found a reasonable fear and placed Petitioner in withholding-only proceedings4 by issuing Form 21 1-863, Notice of Referral to Immigration Judge. (ECF No. 1 at 8; ECF No. 14 at 4, 17–19.) 22 On October 24, 2023, Petitioner filed a motion for bond hearing but subsequently 23 withdrew the motion. (ECF No. 14 at 4, 25–115.) On January 24, 2024, Petitioner filed another 24 motion for a bond hearing, and the immigration judge (“IJ”) denied the motion, noting that 25 3 Page numbers refer to ECF page numbers stamped at the top of the page. 26 4 Withholding-only “proceedings are ‘limited to a determination of whether the alien is eligible for withholding or deferral of removal,’ and as such, ‘all parties are prohibited from raising or considering 27 any other issues, including but not limited to issues of admissibility, deportability, eligibility for waivers, and eligibility for any other form of relief.’” Johnson v. Guzman Chavez, 594 U.S. 523, 531 (2021) 1 Petitioner “is not eligible for an Aleman5 bond yet as he has not been detained for 180 days yet.” 2 (ECF No. 14 at 4, 116–21.) On January 31, 2024, Petitioner filed a third motion for a bond 3 hearing. (ECF No. 14 at 4, 122–25.) The immigration court scheduled a bond hearing, but 4 Petitioner withdrew his motion. (ECF No. 14 at 4, 126–31.) On February 2, 2024, Petitioner filed 5 a fourth motion for bond hearing. (ECF No. 14 at 4, 132–35.) On February 15, 2024, an IJ 6 conducted a bond hearing and denied release, finding that the Department of Homeland Security 7 (“DHS”) “met its burden to establish that [Petitioner] is a danger to the community.” (ECF No. 8 14 at 4, 198–99.) In lieu of appealing the decision to the Board of Immigration Appeals (“BIA”), 9 on March 21, 2024, Petitioner filed a motion for reconsideration, which was denied on April 2, 10 2024. (ECF No. 14 at 4, 155–76.) On June 19, 2024, Petitioner filed another motion for 11 reconsideration, which was denied on June 28, 2024. (ECF No. 14 at 4–5, 177–97.) 12 Petitioner applied for withholding of removal under section 241 of the Immigration and 13 Nationality Act (“INA”), 8 U.S.C. § 1231, and deferral of removal under the United Nations 14 Convention Against Torture. (ECF No. 1 at 8.) On April 18, June 10, and July 29, 2024, hearings 15 were held before an IJ to consider Petitioner’s applications for relief. (ECF No. 14 at 5.) On July 16 29, 2024, the IJ denied Petitioner’s applications for relief. (Id. at 20–21.) On August 5, 2024, 17 Petitioner filed a notice of appeal with the BIA. (Id. at 5, 22–24.) On December 23, 2024, the 18 BIA remanded the proceedings back to the IJ. (ECF No. 15 at 8; ECF No. 15-1.) 19 Meanwhile, on August 22, 2024, Petitioner file the instant petition for writ of habeas 20 corpus, alleging his prolonged detention violates his Fifth and Eighth Amendment rights and 21 requests immediate release, or in the alternative, release within thirty days unless Respondent 22 schedules a bond hearing before an IJ. (ECF No. 1 at 19–21.) On October 25, 2024, Respondent 23 filed a motion to dismiss. (ECF No. 9.) On December 11, 2024, the Court directed Respondent to 24

25 5 Aleman Gonzalez v. Sessions, 325 F.R.D. 616 (N.D. Cal. 2018), aff’d sub nom. Aleman Gonzalez v. Barr, 955 F.3d 762 (9th Cir. 2020), rev’d and remanded sub nom. Garland v. Aleman Gonzalez, 596 U.S. 26 543 (2022). The district court certified a class of individuals who were subject to final removal orders and were detained pursuant to 8 U.S.C. § 1231(a)(6) and issued a preliminary injunction that “require[d] a 27 bond hearing before an IJ after six months of detention for an alien whose release or removal is not imminent” where the government bore “a clear and convincing burden of proof at such a bond hearing to 1 file exhibits referenced in the declaration filed in support of the motion to dismiss but which 2 were not attached. (ECF No. 13.) On December 19, 2024, Respondent filed the exhibits. (ECF 3 No. 14.) On January 6, 2025, Petitioner filed an untimely opposition to the motion to dismiss. 4 (ECF No. 15.) 5 II. 6 DISCUSSION 7 A. Immigration Detention Statutes and Bond Hearings 8 Congress has enacted a complex statutory scheme governing the detention of noncitizens 9 during removal proceedings and following the issuance of a final order of removal. “Where an 10 alien falls within this statutory scheme can affect whether his detention is mandatory or 11 discretionary, as well as the kind of review process available to him if he wishes to contest the 12 necessity of his detention.” Prieto-Romero v. Clark, 534 F.3d 1053, 1057 (9th Cir. 2008). Here, 13 Petitioner is detained pursuant to 8 U.S.C. § 1231(a),6 which provides: 14 (1) Removal period

15 (A) In general

16 Except as otherwise provided in this section, when an alien is ordered removed, the Attorney General shall remove the alien 17 from the United States within a period of 90 days (in this section referred to as the “removal period”). 18 (B) Beginning of period 19 The removal period begins on the latest of the following: 20 (i) The date the order of removal becomes administratively 21 final.

22 (ii) If the removal order is judicially reviewed and if a court orders a stay of the removal of the alien, the date of the 23 court’s final order.

24 (iii) If the alien is detained or confined (except under an immigration process), the date the alien is released from 25 detention or confinement. 26 6 The Supreme Court has “held that § 1231(a) applies to individuals who are removed and who then 27 reenter without authorization and apply for withholding of removal based on a fear that they will be persecuted or tortured if returned to their countries of origin.” Johnson v. Arteaga-Martinez, 596 U.S. 1 (C) Suspension of period

2 The removal period shall be extended beyond a period of 90 days and the alien may remain in detention during such 3 extended period if the alien fails or refuses to make timely application in good faith for travel or other documents 4 necessary to the alien’s departure or conspires or acts to prevent the alien’s removal subject to an order of removal. 5 (2) Detention 6 (A) In general 7 During the removal period, the Attorney General shall detain 8 the alien. Under no circumstance during the removal period shall the Attorney General release an alien who has been found 9 inadmissible under section 1182(a)(2) or 1182(a)(3)(B) of this title or deportable under section 1227(a)(2) or 1227(a)(4)(B) of 10 this title.

11 (B) Enforcement by attorney general of a State

12 The attorney general of a State, or other authorized State officer, alleging a violation of the detention requirement under 13 subparagraph (A) that harms such State or its residents shall have standing to bring an action against the Secretary of 14 Homeland Security on behalf of such State or the residents of such State in an appropriate district court of the United States 15 to obtain appropriate injunctive relief. The court shall advance on the docket and expedite the disposition of a civil action filed 16 under this subparagraph to the greatest extent practicable. For purposes of this subparagraph, a State or its residents shall be 17 considered to have been harmed if the State or its residents experience harm, including financial harm in excess of $100. 18 (3) Supervision after 90-day period 19 If the alien does not leave or is not removed within the removal 20 period, the alien, pending removal, shall be subject to supervision under regulations prescribed by the Attorney General. The 21 regulations shall include provisions requiring the alien--

22 (A) to appear before an immigration officer periodically for identification; 23 (B) to submit, if necessary, to a medical and psychiatric 24 examination at the expense of the United States Government;

25 (C) to give information under oath about the alien’s nationality, circumstances, habits, associations, and activities, and other 26 information the Attorney General considers appropriate; and

27 (D) to obey reasonable written restrictions on the alien’s conduct or activities that the Attorney General prescribes for 1 (4) Aliens imprisoned, arrested, or on parole, supervised release, or 2 probation

3 (A) In general

4 Except as provided in section 259(a) of Title 42 and paragraph (2), the Attorney General may not remove an alien who is 5 sentenced to imprisonment until the alien is released from imprisonment. Parole, supervised release, probation, or 6 possibility of arrest or further imprisonment is not a reason to defer removal. 7 (B) Exception for removal of nonviolent offenders prior to 8 completion of sentence of imprisonment

9 The Attorney General is authorized to remove an alien in accordance with applicable procedures under this chapter 10 before the alien has completed a sentence of imprisonment--

11 (i) in the case of an alien in the custody of the Attorney General, if the Attorney General determines that (I) the 12 alien is confined pursuant to a final conviction for a nonviolent offense (other than an offense related to 13 smuggling or harboring of aliens or an offense described in section 1101(a)(43)(B), (C), (E), (I), or (L) of this title2 and 14 (II) the removal of the alien is appropriate and in the best interest of the United States; or 15 (ii) in the case of an alien in the custody of a State (or a 16 political subdivision of a State), if the chief State official exercising authority with respect to the incarceration of the 17 alien determines that (I) the alien is confined pursuant to a final conviction for a nonviolent offense (other than an 18 offense described in section 1101(a)(43)(C) or (E) of this title), (II) the removal is appropriate and in the best interest 19 of the State, and (III) submits a written request to the Attorney General that such alien be so removed. 20 (C) Notice 21 Any alien removed pursuant to this paragraph shall be notified 22 of the penalties under the laws of the United States relating to the reentry of deported aliens, particularly the expanded 23 penalties for aliens removed under subparagraph (B).

24 (D) No private right

25 No cause or claim may be asserted under this paragraph against any official of the United States or of any State to compel the 26 release, removal, or consideration for release or removal of any alien. 27 (5) Reinstatement of removal orders against aliens illegally 1 If the Attorney General finds that an alien has reentered the United States illegally after having been removed or having departed 2 voluntarily, under an order of removal, the prior order of removal is reinstated from its original date and is not subject to being 3 reopened or reviewed, the alien is not eligible and may not apply for any relief under this chapter, and the alien shall be removed 4 under the prior order at any time after the reentry.

5 (6) Inadmissible or criminal aliens

6 An alien ordered removed who is inadmissible under section 1182 of this title, removable under section 1227(a)(1)(C), 1227(a)(2), or 7 1227(a)(4) of this title or who has been determined by the Attorney General to be a risk to the community or unlikely to comply with 8 the order of removal, may be detained beyond the removal period and, if released, shall be subject to the terms of supervision in 9 paragraph (3). 10 8 U.S.C. § 1231(a). 11 “In particular, § 1231(a)(6) provides that after a 90-day ‘removal period,’7 a noncitizen 12 ‘may be detained’ or may be released under terms of supervision.” Johnson v. Arteaga-Martinez, 13 596 U.S. 573, 575 (2022). “After the removal period expires, the Government ‘may’ detain only 14 four categories of people: (1) those who are ‘inadmissible’ on certain specified grounds; (2) 15 those who are ‘removable’ on certain specified grounds; (3) those it determines ‘to be a risk to 16 the community’; and (4) those it determines to be ‘unlikely to comply with the order of 17 removal.’” Id. at 578–79 (quoting 8 U.SC. § 1231(a)(6)). 18 In Zadvydas v. Davis, 533 U.S. 678 (2001), the Supreme Court addressed a challenge to 19 prolonged detention under § 1231(a)(6) by noncitizens who “had been ordered removed by the 20 government and all administrative and judicial review was exhausted, but their removal could 21 not be effectuated because their designated countries either refused to accept them or the United 22 States lacked a repatriation treaty with the receiving country.” Prieto–Romero, 534 F.3d at 1062 23 (citing Zadvydas, 533 U.S. at 684–86). The Supreme Court “read an implicit limitation” into the 24 statute “in light of the Constitution's demands,” holding that § 1231(a)(6) does not authorize 25

26 7 “The removal period begins on the latest of three dates: (1) the date the order of removal becomes ‘administratively final,’ (2) the date of the final order of any court that entered a stay of removal, or (3) 27 the date on which the alien is released from non-immigration detention or confinement.” Guzman Chavez, 594 U.S. at 528 (citing 8 U.S.C. § 1231(a)(1)(B)). “During the removal period, detention is mandatory.” 1 indefinite detention and “limits an alien’s post-removal-period detention to a period reasonably 2 necessary to bring about that alien’s removal from the United States.” Zadvydas, 533 U.S. at 3 689. Thus, after a presumptively reasonable detention period of six months, a noncitizen was 4 entitled to release if “it has been determined that there is no significant likelihood of removal in 5 the reasonably foreseeable future.” Id. at 701. 6 In Demore v. Kim, 538 U.S. 510 (2003), the Supreme Court rejected a facial challenge to 7 mandatory detention under 8 U.S.C. § 1226(c). The Supreme Court upheld its “longstanding 8 view that the Government may constitutionally detain deportable aliens during the limited period 9 necessary for their removal proceedings.” Id. at 526. The Supreme Court distinguished Zadvydas 10 by emphasizing that mandatory detention under § 1226(c) has “a definite termination point” and 11 “in the majority of cases it lasts for less than the 90 days . . . considered presumptively valid in 12 Zadvydas.” Id. at 529. However, Justice Kennedy specifically noted that “a lawful permanent 13 resident alien such as respondent could be entitled to an individualized determination as to his 14 risk of flight and dangerousness if the continued detention became unreasonable or unjustified.” 15 Demore, 538 U.S. at 532 (Kennedy, J., concurring). 16 “In a series of decisions, the [Ninth Circuit] . . . grappled in piece-meal fashion with 17 whether the various immigration detention statutes may authorize indefinite or prolonged 18 detention of detainees and, if so, may do so without providing a bond hearing.” Rodriguez v. 19 Hayes (Rodriguez I), 591 F.3d 1105, 1114 (9th Cir. 2010). In Diouf v. Napolitano (Diouf II), 634 20 F.3d 1081 (9th Cir. 2011), the Ninth Circuit applied “the canon of constitutional avoidance and 21 construe[d] § 1231(a)(6) as requiring an individualized bond hearing, before an immigration 22 judge, for aliens facing prolonged detention under that provision” and held that “[s]uch aliens are 23 entitled to release on bond unless the government establishes that the alien is a flight risk or will 24 be a danger to the community.”8 Id. at 1086. 25 8 Diouf II did not explain “what procedures would apply to the bond hearings that [the Ninth Circuit] read 26 into § . . . 1231(a)(6).” Rodriguez Diaz v. Garland, 53 F.4th 1189, 1199 (9th Cir. 2022). The Ninth Circuit “took up that question in Singh v. Holder, 638 F.3d 1196 (9th Cir. 2011),” and relying on “general 27 principles of procedural due process,” held that “the government must prove by clear and convincing evidence that continued detention is justified based on the alien’s flight risk or danger to the community,” 1 In Rodriguez v. Robbins (Rodriguez III), 804 F.3d 1060 (9th Cir. 2015), the Ninth 2 Circuit, applying the canon of constitutional avoidance, held that for noncitizens detained under 3 8 U.S.C. §§ 1225(b), 1226(a), and 1226(c), “the government must provide periodic bond 4 hearings every six months so that noncitizens may challenge their continued detention as ‘the 5 period of . . . confinement grows.’” Rodriguez III, 804 F.3d at 1089 (quoting Diouf v. Napolitano 6 (Diouf II), 634 F.3d 1081, 1091 (9th Cir. 2011)). In Jennings v. Rodriguez, 583 U.S. 281 (2018), 7 the Supreme Court found the Ninth Circuit’s interpretation that § 1226(c) included “an implicit 8 6–month time limit on the length of mandatory detention” fell “far short of a ‘plausible statutory 9 construction,’” and held that the Ninth Circuit misapplied the constitutional avoidance canon to 10 find a statutory right under 8 U.S.C. § 1226(a) to “periodic bond hearings every six months in 11 which the Attorney General must prove by clear and convincing evidence that the alien’s 12 continued detention is necessary.” Jennings, 583 U.S. at 304, 296, 306. The case was remanded 13 to the Ninth Circuit “to consider [the] constitutional arguments on their merits.” Id. at 312. The 14 Ninth Circuit likewise remanded the case to the district court to consider the constitutional 15 arguments in the first instance but observed that it had “grave doubts that any statute that allows 16 for arbitrary prolonged detention without any process is constitutional or that those who founded 17 our democracy precisely to protect against the arbitrary deprivation of liberty would have 18 thought so.” Rodriguez v. Marin, 909 F.3d 252, 255, 256 (9th Cir. 2018). 19 Following Jennings, the Ninth Circuit reexamined the applicable procedures for 20 immigration detention under 8 U.S.C. § 1231(a)(6). Although “recogniz[ing] some tension 21 between Diouf II and Jennings,” the Ninth Circuit held that it “remain[ed] bound by Diouf II” 22 and concluded that “that the district court did not err in relying on Diouf II’s construction of 23 § 1231(a)(6) to require a bond hearing before an IJ after six months of detention for an alien 24 whose release or removal is not imminent” and “also properly required the Government to bear a 25 clear and convincing burden of proof at such a bond hearing to justify an alien’s continued 26 detention.” Aleman Gonzalez v. Barr, 955 F.3d 762, 766 (9th Cir. 2020). The Supreme Court 27 reversed, holding that 8 U.S.C. § 1252(f)(1) deprived the district court of jurisdiction to entertain 1 (2022). In Johnson v. Arteaga-Martinez, 596 U.S. 573 (2022), “a companion case decided that 2 same day arising from the Third Circuit, . . . the Supreme Court separately rejected [the Ninth 3 Circuit’s] statutory interpretation in Aleman Gonzalez (which was itself based on Diouf II).” 4 Rodriguez Diaz v. Garland, 53 F.4th 1189, 1201 (9th Cir. 2022). Arteaga-Martinez held that 5 “there is no plausible construction of the text of § 1231(a)(6) that requires the Government to 6 provide bond hearings before immigration judges after six months of detention, with the 7 Government bearing the burden of proving by clear and convincing evidence” and declined to 8 reach the constitutional claims. 596 U.S. at 581, 583. “[A]fter the Supreme Court’s decisions in 9 Jennings and Arteaga-Martinez, it remains undetermined whether the Due Process Clause 10 requires additional bond procedures under” 8 U.S.C. § 1231. Rodriguez Diaz, 53 F.4th at 1201. 11 B. Fifth Amendment 12 Petitioner contends that “[d]etention without a bond hearing is unconstitutional when it 13 exceeds six months,” and “[e]ven if a bond hearing is not required after six months in every case, 14 at a minimum, due process requires a bond hearing after detention has become unreasonably 15 prolonged.” (ECF No. 1 at 12, 13.) Petitioner notes that “[c]ourts that apply a reasonableness test 16 have considered three main factors in determining whether detention is reasonable”: (1) “whether 17 the noncitizen has raised a ‘good faith’ challenge to removal”; (2) the length of detention, “with 18 detention presumptively unreasonable if it lasts six months to a year”; and (3) “the likelihood 19 that detention will continue pending future proceedings.” (Id. at 13–14.) Petitioner also discusses 20 the three-factor test from Mathews v. Eldridge, 424 U.S. 319 (1976). (ECF No. 1 at 15.) 21 Respondent argues that “there has been no violation of procedural due process,” “Petitioner’s 22 reliance on Mathews v. Eldridge, 424 U.S. 319 (1976), is misplaced,” and “[e]ven if this court 23 were to consider Mathews in the immigration context,” Petitioner would not be entitled to habeas 24 relief. (ECF No. 9 at 6.) 25 Courts in the Ninth circuit have taken a variety of approaches to determine whether due 26 process requires a bond hearing in a particular immigration detention case. See, e.g., Rodriguez 27 v. Nielsen, No. 18-cv-04187-TSH, 2019 WL 7491555, at *6 (N.D. Cal. Jan. 7, 2019) (applying 1 to a bond hearing” in § 1226(c) context); Banda v. McAleenan, 385 F. Supp. 3d 1099, 1117 2 (W.D. Wash. 2019) (considering six factors, which include: “(1) the total length of detention to 3 date; (2) the likely duration of future detention; (3) the conditions of detention; (4) delays in the 4 removal proceedings caused by the detainee; (5) delays in the removal proceedings caused by the 5 government; and (6) the likelihood that the removal proceedings will result in a final order of 6 removal” in § 1225(b) context); Juarez v. Wolf, No. C20-1660-RJB-MLP, 2021 WL 2323436, at 7 *4 (W.D. Wash. May 5, 2021) (considering, in addition to six factors set forth above, “whether 8 the detention will exceed the time the petitioner spent in prison for the crime that made him [or 9 her] removable” and “the nature of the crimes the petitioner committed” in § 1226(c) context), 10 report and recommendation adopted, 2021 WL 2322823 (W.D. Wash. June 7, 2021); Lopez v. 11 Garland, 631 F. Supp. 3d 870, 879 (E.D. Cal. 2022) (considering “the total length of detention to 12 date, the likely duration of future detention, and the delays in the removal proceedings caused by 13 the petitioner and the government” in § 1226(c) context). 14 There are also some courts that apply the three-part test set forth in Mathews v. Eldridge, 15 424 U.S. 319 (1976). See Zagal-Alcaraz v. ICE Field Off., No. 3:19-cv-01358-SB, 2020 WL 16 1862254, at *3–4 (D. Or. Mar. 25, 2020) (collecting cases), report and recommendation adopted, 17 2020 WL 1855189 (D. Or. Apr. 13, 2020). In Rodriguez Diaz, which concerned a noncitizen 18 detained pursuant to 8 U.S.C. § 1226(a) and whether “continued detention was unconstitutional 19 because under the Due Process Clause of the Fifth Amendment, he is entitled to a second bond 20 hearing at which the government bears the burden of proof by clear and convincing evidence,” 21 the panel majority “assume[d] without deciding” that the Mathews test applied, noting that the 22 Ninth Circuit has “regularly applied Mathews to due process challenges to removal 23 proceedings,” and finding “Mathews remains a flexible test that can and must account for the 24 heightened governmental interest in the immigration detention context.” Rodriguez Diaz, 53 25 F.4th at 1193, 1206. Similarly, the dissent “agree[d] that the test developed in Mathews v. 26 Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), is the appropriate legal framework 27 to determine whether there was a due process violation.” Rodriguez Diaz, 53 F.4th at 1219 1 (“conclud[ing] that due process challenges to prolonged detention under section 1226(c) should 2 also be reviewed under Mathews”); Guerrero-Sanchez v. Warden York Cnty. Prison, 905 F.3d 3 208, 225 (3d Cir. 2018) (applying Mathews “[i]n order to identify ‘the specific dictates of due 4 process’” in the context of § 1231(a)(6) detentions), abrogated by Arteaga-Martinez, 596 U.S. 5 573. Some courts look to whether the petitioner is requesting an initial bond hearing or a second 6 bond hearing in deciding whether to apply the Mathews test because “[w]hile the Mathews 7 factors may be well-suited to determining whether due process requires a second bond hearing, 8 they are not particularly dispositive of whether prolonged mandatory detention has become 9 unreasonable in a particular case.” Djelassi v. ICE Field Office Dir., No. C19-491-RSM, 2020 10 WL 263670, at *2 (W.D. Wash. Jan. 17, 2020) (quoting Banda, 385 F. Supp. 3d at 1118). 11 Given that the parties have addressed the Mathews test in their pleadings, the Ninth 12 Circuit has “regularly applied Mathews to due process challenges to removal proceedings,” 13 Rodriguez Diaz, 53 F.4th at 1193, and the fact that Petitioner is seeking a second bond hearing, 14 the Court will apply the Mathews test in addition to addressing the bright-line rule. 15 1. Bright-Line Rule 16 The First, Second, and Third Circuits have “reject[ed] a bright-line constitutional rule 17 requiring a bond hearing after six months of detention—or after any fixed period of detention— 18 in the context of a Congressional mandate, in the immigration context, to detain.” Black, 103 19 F.4th at 150 (citing Reid v. Donelan, 17 F.4th 1, 7–9 (1st Cir. 2021); German Santos v. Warden 20 Pike Cnty. Corr. Facility, 965 F.3d 203, 211 (3d Cir. 2020)). The Court finds such authority 21 persuasive and declines to adopt a bright-line rule that detention without a bond hearing is 22 presumptively unconstitutional when it exceeds six months. 23 2. Mathews Test 24 In Mathews, the Supreme Court held that “identification of the specific dictates of due 25 process generally requires consideration of three distinct factors”: 26 First, the private interest that will be affected by the official action; second, the risk of erroneous deprivation of such interest through 27 the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s 1 administrative burdens that the additional or substitute procedural requirements would entail. 2 3 Mathews, 424 U.S. at 334. 4 a. Private Interest 5 With respect to the first factor, the Court finds that the private interest at issue here is 6 fundamental. “Freedom from imprisonment—from government custody, detention, or other 7 forms of physical restraint—lies at the heart of the liberty [the Due Process] Clause 8 protects.” Zadvydas, 533 U.S. at 690. The Ninth Circuit has held that it “is beyond dispute” an 9 immigration detainee’s “private interest at issue here is ‘fundamental’: freedom from 10 imprisonment is at the ‘core of the liberty protected by the Due Process Clause.’” Hernandez v. 11 Sessions, 872 F.3d 976, 993 (9th Cir. 2017) (quoting Foucha v. Louisiana, 504 U.S. 71, 80 12 (1992)). See Rodriguez Diaz, 53 F.4th at 1207 (“We have also held, more generally, that an 13 individual’s private interest in ‘freedom from prolonged detention’ is ‘unquestionably 14 substantial.’ . . . Rodriguez Diaz has a legitimate and reasonably strong private liberty interest 15 under Mathews.” (quoting Singh, 638 F.3d at 1208)). 16 Based on the foregoing, the Court finds that the first Mathews factor weighs in favor of 17 Petitioner. The Court is cognizant, however, that “it is important not to overstate the strength of 18 [Petitioner]’s showing under the first Mathews factor,” and that “under the first prong of the 19 Mathews analysis, we cannot simply count his months of detention and leave it at that.” 20 Rodriguez Diaz, 53 F.4th at 1207, 1208. The Court has considered that Petitioner has received 21 one bond hearing before an IJ and acknowledges his “private interests are further diminished by 22 the fact that he is subject to an order of removal from the United States.” Id. at 1208. 23 b. Risk of Erroneous Deprivation 24 With respect to the second factor, the Court considers the risk of erroneous deprivation of 25 Petitioner’s liberty interest and the probable value of additional procedural safeguards. “In 26 evaluating the risk of erroneous deprivation in the context of noncitizen detention, the Ninth 27 Circuit has looked to whether the detainee has a statutory right to procedural protections, such as individualized custody determinations and the right to seek additional bond hearings throughout 1 detention.” Jensen v. Garland, No. 5:21-cv-01195-CAS (AFM), 2023 WL 3246522, at *6 (C.D. 2 Cal. May 3, 2023) (citing Rodriguez Diaz, 53 F.4th at 1209–10 (finding a small risk of erroneous 3 deprivation where petitioner was detained under § 1226(a) and thus received numerous 4 procedural protections, including individualized custody determinations and right to seek 5 additional bond hearings)). 6 On February 15, 2024, Petitioner had an individualized bond hearing before an IJ where 7 the government had the burden of establishing by clear and convincing evidence that Petitioner 8 posed a danger to the community or a flight risk if released. (ECF No. 1 at 2.) The IJ found 9 Petitioner a danger to the community and denied bond. (ECF No. 1 at 2; ECF No. 14 at 198.) 10 Petitioner had the right to appeal that decision to the BIA, and to the extent the agency made 11 errors of law in denying Petitioner’s request for release on bond, the decision “would also be 12 subject to judicial review in habeas.” Rodriguez Diaz, 53 F.4th at 1210. Like the petitioner in 13 Rodriguez Diaz, the determination to detain Petitioner “was subject to numerous levels of 14 review, each offering [Petitioner] the opportunity to be heard by a neutral decisionmaker. These 15 procedures ensured that the risk of erroneous deprivation would be ‘relatively small’” at the time 16 of Petitioner’s first bond hearing. Rodriguez Diaz, 53 F.4th at 1210 (quoting Yagman v. Garcetti, 17 852 F.3d 859, 865 (9th Cir. 2017)). 18 After the Supreme Court’s decision in Arteaga-Martinez, however, Petitioner does not 19 have a statutory right to a bond hearing before an IJ. Applicable DHS regulations “generally 20 require a custody review at the end of the 90-day removal period, a second review by a panel at 21 ICE headquarters after six months of detention, and subsequent annual reviews.” Arteaga- 22 Martinez, 596 U.S. at 583; 8 C.F.R. § 241.4. The noncitizen “may submit information in writing 23 in support of his or her release” and “may be assisted by a person of his or her choice[.]” 8 24 C.F.R. § 241.4(h)(2). The regulations set forth criteria for release9 and factors10 to be weighed in 25 9 “Before making any recommendation or decision to release a detainee, a majority of the Review Panel 26 members, or the Director of the HQPDU in the case of a record review, must conclude that:” (1) Travel documents for the alien are not available or, in the opinion of the Service, immediate 27 removal, while proper, is otherwise not practicable or not in the public interest; (2) The detainee is presently a non-violent person; 1 considering detention or release. 8 C.F.R. §§ 241.4(e)–(f). Further, “[n]ot more than once every 2 three months in the interim between annual reviews, the alien may submit a written request to the 3 HQPDU [Headquarters Post-Order Detention Unit] for release consideration based on a proper 4 showing of a material change in circumstances since the last annual review.” 8 C.F.R. 5 § 241.4(k)(2)(iii). 6 Although the Supreme Court has rejected the Ninth Circuit’s application of the 7 constitutional avoidance canon and its statutory interpretation of § 1231(a)(6), the Court finds 8 Diouf II’s discussion of the Mathews factors informative regarding the constitutional issues 9 before this Court. With respect to the second factor, the Ninth Circuit found that “at the 180–day 10 juncture, the DHS regulations are appropriate but not alone sufficient to address the serious 11 constitutional concerns raised by continued detention” because the “regulations do not afford 12 adequate procedural safeguards [as] they do not provide for an in-person hearing, they place the 13

14 (4) The detainee is not likely to pose a threat to the community following release; (5) The detainee is not likely to violate the conditions of release; and 15 (6) The detainee does not pose a significant flight risk if released. 8 C.F.R. § 241.4(e). 16 10 “The following factors should be weighed in considering whether to recommend further detention or release of a detainee:” 17 (1) The nature and number of disciplinary infractions or incident reports received when incarcerated or while in Service custody; 18 (2) The detainee’s criminal conduct and criminal convictions, including consideration of the nature and severity of the alien’s convictions, sentences imposed and time actually served, 19 probation and criminal parole history, evidence of recidivism, and other criminal history; (3) Any available psychiatric and psychological reports pertaining to the detainee’s mental health; 20 (4) Evidence of rehabilitation including institutional progress relating to participation in work, educational, and vocational programs, where available; 21 (5) Favorable factors, including ties to the United States such as the number of close relatives 22 residing here lawfully; (6) Prior immigration violations and history; 23 (7) The likelihood that the alien is a significant flight risk or may abscond to avoid removal, including history of escapes, failures to appear for immigration or other proceedings, absence 24 without leave from any halfway house or sponsorship program, and other defaults; and (8) Any other information that is probative of whether the alien is likely to— 25 (i) Adjust to life in a community, (ii) Engage in future acts of violence, 26 (iii) Engage in future criminal activity, (iv) Pose a danger to the safety of himself or herself or to other persons or to property, or 27 (v) Violate the conditions of his or her release from immigration custody pending removal from the United States. 1 burden on the alien rather than the government and they do not provide for a decision by a 2 neutral arbiter such as an immigration judge.11” Diouf II, 634 F.3d at 1091 (footnote in original). 3 The Ninth Circuit subsequently rejected the argument that a noncitizen bearing the burden of 4 proof at a bond hearing rendered § 1226(a)’s procedures constitutionally deficient. Rodriguez 5 Diaz, 53 F.4th at 1210–12. However, § 1226(a) and its implementing regulations provide for the 6 right to seek an additional bond hearing before an immigration judge based on materially 7 changed circumstances, 8 C.F.R. § 1003.19(e), whereas a noncitizen detained under § 1231(a) 8 may submit a written request for release consideration to an agency employee based on 9 materially changed circumstances and a hearing is not required, 8 C.F.R. §§ 241.4(k)(2)(iii), 10 (h)(1). Thus, in the context of § 1231(a), “the risk of an erroneous deprivation of liberty in the 11 absence of a hearing before a neutral decisionmaker is substantial” as the time in detention 12 lengthens. Diouf II, 634 F.3d at 1092 (emphasis added). 13 Based on the foregoing, the Court finds that the second Mathews factor weighs in favor 14 of Petitioner. Again, the Court is cognizant that it should not overstate the strength of Petitioner’s 15 showing here. As noted above, Petitioner already had one bond hearing before an IJ where the 16 government bore the burden of establishing by clear and convincing evidence detention was 17 warranted. Additionally, unlike § 1226(c) where no additional procedures are mandated, DHS 18 regulations provide annual custody reviews and Petitioner may request a new custody review 19 once every three months based on materially changed circumstances. 20 c. Government’s Interest 21 With respect to the third and final factor, the Court recognizes that “the government 22 clearly has a strong interest in preventing aliens from ‘remain[ing] in the United States in 23 violation of our law’” and “has an obvious interest in ‘protecting the public from dangerous 24 criminal aliens.’” Rodriguez Diaz, 53 F.4th at 1208 (quoting Demore, 538 U.S. at 518, 515). The 25 Ninth Circuit has stated that “[t]hese are interests of the highest order that only increase with the 26 passage of time,” noting that “[t]he longer detention lasts and the longer the challenges to an IJ’s 27 1 order of removal take, the more resources the government devotes to securing an alien’s ultimate 2 removal” and “[t]he risk of a detainee absconding also inevitably escalates as the time for 3 removal becomes more imminent.” Rodriguez Diaz, 53 F.4th at 1208. 4 However, it is important to stress that “the governmental issue at stake [here] is the 5 ability to detain Petitioner without providing him with another bond hearing, not whether the 6 government may continue to detain him.” Lopez Reyes v. Bonnar, 362 F. Supp. 3d 762, 777 7 (N.D. Cal. 2019) (emphasis in original). See Zerezghi v. U.S. Citizenship & Immigr. Servs., 955 8 F.3d 802, 810 (9th Cir. 2020) (noting that “the question [under the third Mathews factor] is not 9 the government’s interest in immigration enforcement” “in general” (emphasis added)); 10 Henriquez v. Garland, No. 5:22-cv-00869-EJD, 2022 WL 2132919, at *5 (N.D. Cal. June 14, 11 2022) (“Although the Government has a strong interest in enforcing the immigration laws and in 12 ensuring that lawfully issued removal orders are promptly executed, the Government’s interest in 13 detaining Petitioner without providing an individualized bond hearing is low.”). 14 Courts generally have found that the cost of providing a bond hearing is relatively 15 minimal, and there is nothing in the record before this Court demonstrating that providing 16 Petitioner with a bond hearing would be fiscally or administratively burdensome. See Marroquin 17 Ambriz v. Barr, 420 F. Supp. 3d 953, 964 (N.D. Cal. 2019) (noting in context of a § 1226(a) 18 detention, the parties did not contest “that the cost of conducting a bond hearing, to determine 19 whether the continued detention of Petitioner is justified, is minimal”); Singh v. Barr, 400 F. 20 Supp. 3d 1005, 1021 (S.D. Cal. 2019) (noting in the context of § 1226(a) detention that “[t]he 21 government has not offered any indication that a [ ] bond hearing would have outside effects on 22 its coffers”). 23 Accordingly, the third Mathews factor weighs in favor of Petitioner. 24 3. Conclusion 25 Based on the foregoing, the Court finds that each of the Mathews factors weighs in favor 26 of Petitioner. Accordingly, the Court finds that Petitioner is entitled to a second bond hearing.12 27 1 C. Remedy 2 Petitioner requests this Court to hold a hearing to determine whether detention is justified 3 and “order Petitioner’s release, with appropriate conditions of supervision if necessary, taking 4 into account Petitioner’s ability to pay a bond.” (ECF No. 1 at 21.) He alternatively requests this 5 Court to order his release within thirty days unless Respondent schedules a hearing before an IJ 6 where “to continue detention, the government must establish by clear and convincing evidence 7 that Petitioner presents a risk of flight or danger, even after consideration of alternatives to 8 detention that could mitigate any risk that Petitioner’s release would present.” (Id.) 9 “The Court finds, consistent with other post-Jennings cases, that the appropriate remedy 10 is a bond hearing before an immigration judge[.]” Lopez, 631 F. Supp. 3d at 882. See Martinez 11 Leiva v. Becerra, No. 23-cv-02027-CRB, 2023 WL 3688097, at *9 (N.D. Cal. May 26, 2023) 12 (“The Court further concludes that the appropriate remedy here is a bond hearing, and that an IJ, 13 not the Court, should conduct it[.]” (footnote omitted)); Mansoor v. Figueroa, No. 3:17-cv- 14 01695-GPC (NLS), 2018 WL 840253, at *4 (S.D. Cal. Feb. 13, 2018) (“The Court finds the IJ is 15 uniquely qualified and situated to make neutral administrative determinations about Petitioner’s 16 eligibility for release on bond and/or placement in a supervised release program such as ISAP.”). 17 The Court now turns to the burden of proof at the bond hearing and which party should 18 bear such burden. Having “previously applied the canon of constitutional avoidance to interpret 19 . . . immigration provisions—8 U.S.C. §§ 1225(b), 1226(c), and 1231(a)(6)—as providing a 20 statutory right to a bond hearing once detention becomes prolonged,” the Ninth Circuit in Singh 21 “concluded that for these hearings to comply with due process, the government had to bear the 22 burden of proving by clear and convincing evidence that the alien poses a flight risk or a danger 23 to the community.” Rodriguez Diaz, 53 F.4th at 1196 (citing Singh, 638 F.3d at 1203–05). 24 Although Rodriguez Diaz may have declined to impose the standard articulated in Singh, the 25 panel majority specifically stated that it was not “decid[ing] whether Singh remains good law in 26 any respect following Jennings” and even recognized that Singh was based “on general 27 principles of procedural due process, reasoning that a detained person’s liberty interest is 1 suggested post-Jennings that Singh remains good law in Martinez v. Clark, which took “no 2 position” on “[w]hether due process requires a bond hearing for aliens detained under 3 § 1226(c),” but did address “the scope of federal court review of those bond determinations” and 4 found with respect to a bond hearing for a noncitizen detained under § 1226(c) that “the BIA 5 properly noted that the government bore the burden to establish by clear and convincing 6 evidence that Martinez is a danger to the community.” Martinez, 36 F.4th at 1223, 1231. On 7 remand, and after Rodriguez Diaz was decided, the Martinez panel reconfirmed “that the 8 government bore the burden to establish by clear and convincing evidence that Martinez is a 9 danger to the community” and “that the BIA applied the correct burden of proof.” Martinez v. 10 Clark, 124 F.4th 775, 785, 786 (9th Cir. 2024). 11 The Court holds that the government must justify Petitioner’s continued confinement 12 under § 1231(a) by clear and convincing evidence that Petitioner is a flight risk or a danger to the 13 community. See Juarez v. Choate, No. 1:24-cv-00419-CNS, 2024 WL 1012912, at *8 (D. Colo. 14 Mar. 8, 2024) (holding that “the government will bear the burden to show by clear and 15 convincing evidence that continued detention is justified” at bond hearing ordered for § 1231(a) 16 detainee); Sanchez-Rivera v. Matuszewski, No. 22-cv-1357-MMA (JLB), 2023 WL 139801, at 17 *7 n.5 (S.D. Cal. Jan. 9, 2023) (following “an overwhelming majority of courts that have held 18 that the government must justify the continued confinement of a non-citizen detainee under 19 § 1226(c) by clear and convincing evidence that the non-citizen is a flight risk or a danger to the 20 community”). In the event Petitioner is determined not to be a danger to the community and not 21 to be so great a flight risk as to require detention without bond, the IJ should consider 22 Petitioner’s financial circumstances or alternative conditions of release. See Hernandez, 872 F.3d 23 at 1000 (“Plaintiffs are likely to succeed on their challenge under the Due Process Clause to the 24 government’s policy of allowing ICE and IJs to set immigration bond amounts without 25 considering the detainees’ financial circumstances or alternative conditions of release.”); Black, 26 103 F.4th at 138 (The district court “correctly directed the immigration judge (“IJ”), in setting 27 his bond and establishing appropriate terms for his potential release, to consider his ability to pay 1 D. Attorney’s Fees 2 Petitioner has requested costs and attorney’s fees in this action pursuant to the Equal 3 Access to Justice Act (“EAJA”), 28 U.S.C. § 2412. (ECF No. 1 at 22.) The EAJA provides in 4 pertinent part:

5 Except as otherwise specifically provided by statute, a court shall award to a prevailing party other than the United States fees and 6 other expenses, in addition to any costs awarded pursuant to subsection (a), incurred by that party in any civil action (other than 7 cases sounding in tort), including proceedings for judicial review of agency action, brought by or against the United States in any 8 court having jurisdiction of that action, unless the court finds that the position of the United States was substantially justified or that 9 special circumstances make an award unjust.

10 A party seeking an award of fees and other expenses shall, within thirty days of final judgment in the action, submit to the court an 11 application for fees and other expenses which shows that the party is a prevailing party and is eligible to receive an award under this 12 subsection, and the amount sought, including an itemized statement from any attorney or expert witness representing or 13 appearing in behalf of the party stating the actual time expended and the rate at which fees and other expenses were computed. The 14 party shall also allege that the position of the United States was not substantially justified. Whether or not the position of the United 15 States was substantially justified shall be determined on the basis of the record (including the record with respect to the action or 16 failure to act by the agency upon which the civil action is based) which is made in the civil action for which fees and other expenses 17 are sought. 18 28 U.S.C. § 2412 (d)(1)(A)–(B). The Court will consider an application from Petitioner 19 requesting and substantiating reasonable fees and costs under the EAJA that is filed within thirty 20 days of the judgment. 21 III. 22 ORDER 23 Accordingly, the Court HEREBY ORDERS that: 24 1. Warden, Mesa Verde Detention Center, is SUBSTITUTED as Respondent in the instant 25 matter. 26 2. All other named Respondents are TERMINATED. 27 3. The petition for writ of habeas corpus (ECF No. 1) is GRANTED IN PART and 1 (Fifth Amendment due process) and the request for a bond hearing before an IJ. The 2 petition is DENIED in all other respects. 3 4. Petitioner’s motion for temporary restraining order (ECF No. 2) is DENIED as MOOT. 4 5. Respondent’s motion to dismiss (ECF No. 9) is DENIED. 5 6. Within THIRTY (30) days of the date of service of this order, Respondent shall provide 6 Petitioner with an individualized bond hearing before an immigration judge that complies 7 with the requirements set forth in Singh v. Holder, 638 F.3d 1196 (9th Cir. 2011), and at 8 which 9 a. “the government must prove by clear and convincing evidence that [Petitioner] is 10 a flight risk or a danger to the community to justify denial of bond,” Singh, 638 11 F.3d at 1203; and 12 b. the IJ should consider Petitioner’s financial circumstances or alternative 13 conditions of release in the event Petitioner is determined not to be a danger to the 14 community and not to be so great a flight risk as to require detention without 15 bond. 16 7. contemporaneous record of the hearing shall be made. Singh, 638 F.3d at 1200, 1208. 17 8. Inthe event the government fails to hold said bond hearing, Petitioner shall be released 18 from detention under appropriate supervision. 19 9. The Clerk of Court is DIRECTED to enter judgment in accordance with this order. 20

IT IS SO ORDERED.

22| Dated: _ April 21, 2025 [spe ey 3 UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28