Unreported / Non-Citable
Background
Petitioner Al-Qershi Walla, a Yemeni citizen who became a lawful permanent resident in 2014, was taken into immigration custody on July 10, 2025, and charged as removable based on a controlled-substance offense. A notice to appear followed the next day. Proceeding without counsel, Petitioner filed a habeas petition under 28 U.S.C. § 2241 on March 31, 2026. The petition sought release and an order barring removal to a third country without compliance with administrative procedures. It alleged that prolonged detention without a bond hearing violates the Fifth Amendment's Due Process Clause.
Respondents moved to dismiss. They argued that Petitioner is subject to mandatory detention under 8 U.S.C. § 1226(c) because of an April 2025 conviction for possession of fentanyl under California Health and Safety Code section 11350, and that Petitioner should first seek a hearing under Matter of Joseph in immigration court. The magistrate judge agreed that section 1226(c) supplied the detention authority. The magistrate judge rejected Petitioner's reliance on 8 U.S.C. § 1231, which governs people already ordered removed, after judicially noticing public immigration-court records showing no removal order. The magistrate judge also declined to require exhaustion, reasoning that immigration courts have not shown willingness to hear as-applied due process challenges to mandatory detention.
The magistrate judge issued findings and recommendations on October 8, 2026, recommending that the petition be granted in part. Respondents filed timely objections on October 22, 2026. The order does not describe the objections.
The Court’s Holding
After de novo review under 28 U.S.C. § 636(b)(1)(C) that included Respondents' objections, the district judge concluded that the findings and recommendations were supported by the record and proper analysis, adopted them in full, and granted the petition in part. The order itself is brief, and the reasoning appears in the adopted findings. Those findings note that the Ninth Circuit has not decided whether the Due Process Clause requires a bond hearing for people held under section 1226(c). They add that essentially all district courts to consider the question agree that prolonged mandatory detention without a hearing eventually violates due process.
Applying the three-factor test from Mathews v. Eldridge, the magistrate judge found that each factor favored Petitioner. Detention had lasted nearly fifteen months without any bond hearing. None of the circumstances that offset prolonged detention in Rodriguez Diaz v. Garland, such as a removal order or a prior bond hearing, was present. The risk of error was elevated because no forward-looking assessment of danger or flight risk had occurred. The government's interests in public safety and securing removal could be advanced at a hearing at minimal cost.
The order requires Respondents, within 14 days of service unless Petitioner consents to a later date, to provide an individualized bond hearing before an immigration judge that complies with Singh v. Holder. At that hearing the government must prove by clear and convincing evidence that Petitioner is a flight risk or danger to the community to justify denying bond. If Petitioner is found not to be so dangerous or so great a flight risk as to require detention, the judge should consider Petitioner's financial circumstances and alternative release conditions under Hernandez v. Sessions. Petitioner must receive at least 72 hours' notice, as must counsel who has appeared in the immigration case. Petitioner may be represented by counsel and may appear. Respondents must give the order to the immigration judge and ensure the hearing is recorded. The Clerk was directed to serve the detention facility and close the case.
Key Takeaways
- The court granted the petition only in part and ordered a bond hearing rather than release, so whether Petitioner is ultimately freed depends on the immigration judge's decision.
- At the hearing the government carries the burden and must prove flight risk or danger to the community by clear and convincing evidence.
- If detention is not warranted, the immigration judge should weigh Petitioner's financial circumstances and alternative conditions of release.
- The order sets procedural safeguards: 72 hours' notice to Petitioner and any appearing counsel, the right to counsel and to appear, delivery of the order to the immigration judge, and a recorded hearing.
- The adopted findings recommended denying the third-country removal claims without prejudice as unripe because no removal order exists, so those issues remain open if one is later entered.
Why It Matters
The order adds to district court decisions in this circuit treating prolonged section 1226(c) detention without any hearing as an as-applied due process problem, even though the Ninth Circuit has left the underlying question open. It is a single-case district court order, not a published opinion, and it does not bind other courts. It does not hold that section 1226(c) is unconstitutional on its face or that any particular length of detention automatically requires a hearing.
Several matters remain open: the outcome of the bond hearing, the merits of the removal proceedings, and any future challenge to removal to a third country. The case was closed after the order, so enforcement of the hearing requirements would depend on further filings.