Unreported / Non-Citable
Background
Jingfeng Xu, a native and citizen of China, entered the United States on a B-2 visa in 2014 and applied for asylum. In 2018, he was placed in removal proceedings for overstaying his visa. He attended all hearings until August 22, 2025, when, on his attorney's advice, he did not appear at a master calendar hearing and was ordered removed in absentia. Four days later, ICE fitted him with a GPS ankle monitor and enrolled him in the Intensive Supervision Appearance Program (ISAP), requiring monthly in-person and bi-weekly check-ins.
Xu complied with all conditions. On November 19, 2025, an ICE employee instructed him to report the next day, suggesting his ankle monitor might be removed. When he appeared on November 20, 2025, ICE detained him, asserting his removal order was final and they could not find his pending BIA appeal—even though ICE's own records confirmed the appeal the prior day and his attorney presented the filing receipt at the office. The BIA stayed his removal on December 10, 2025, and ultimately granted his motion to reopen on September 23, 2026, rescinding the removal order based on ineffective assistance of counsel. Xu filed this habeas petition challenging his November 20, 2025 detention as a violation of procedural due process because he received no pre-deprivation hearing.
The Court’s Holding
The Court granted the petition for writ of habeas corpus on procedural due process grounds. It held that Xu's in absentia removal order was not final while his BIA appeal was pending, so his detention was governed by 8 U.S.C. § 1226(a), not the mandatory detention provisions of § 1226(c). Applying the Mathews v.
Eldridge balancing test, the Court found Xu had a substantial liberty interest in his conditional release under the ATD program after complying with all supervision conditions for three months; the risk of erroneous deprivation was high because ICE detained him based on a mistaken belief his removal order was final, disregarding its own records and his attorney's proof of a pending appeal; and the government's interest in detention without a pre-deprivation hearing was minimal. The Court further held that the subsequent bond hearings—occurring four and eight months after detention, and one of which this Court had already found erroneous—did not cure the initial due process violation. The petition was granted as to Count One; remaining counts were dismissed without prejudice. Xu was ordered released within 24 hours under the terms of his prior ATD release.
Key Takeaways
- A noncitizen released on conditions under the Alternatives to Detention (ATD) program after an in absentia removal order retains a constitutionally protected liberty interest requiring pre-deprivation process before re-detention.
- An in absentia removal order is not final while a timely appeal of the denial of a motion to reopen is pending before the BIA; detention during that period falls under 8 U.S.C. § 1226(a), which permits release on bond or conditions.
- ICE's detention of a noncitizen based on an erroneous determination that a removal order is final—despite internal records confirming a pending appeal—creates a high risk of erroneous deprivation under Mathews v. Eldridge.
- Post-deprivation bond hearings, especially when delayed for months and later found to be flawed, do not cure the failure to provide a pre-deprivation hearing.
- The government has no legitimate interest in detaining individuals previously determined not to be a danger or flight risk without a pre-deprivation hearing, and the administrative burden of such a hearing is minimal.
Why It Matters
This decision reinforces that noncitizens released on supervision under § 1226(a) possess a protected liberty interest triggering due process protections before re-incarceration. It aligns with a growing line of cases in the Central and Eastern Districts of California holding that ICE cannot re-detain compliant ATD participants without a pre-deprivation hearing, particularly when detention rests on an administrative error regarding the finality of a removal order.
The ruling clarifies that pending BIA appeals toll the finality of in absentia orders and that belated bond hearings cannot retroactively validate a due process violation. The Court's order restoring Xu to his prior ATD conditions—rather than ordering a new bond hearing—emphasizes the remedy of returning to the status quo ante.