Unreported / Non-Citable
Background
Petitioner, a Venezuelan national, applied for admission at San Ysidro, California, on March 9, 2024. Immigration officials served a Notice to Appear charging him as inadmissible for lacking a valid entry document and released him on humanitarian parole valid through March 8, 2026.
Border Patrol agents arrested Petitioner on August 24, 2026, after a traffic stop in New York, after his parole had expired. The court noted that the arrest warrant, Form I-200, listed his entry as without inspection at an unknown place on an unknown date, which it called false given his documented inspection and parole. He was also served a $5,130 apprehension fee under 8 U.S.C. § 1815, which applies to inadmissible noncitizens apprehended between ports of entry. He is held at Mesa Verde Detention Center in this district.
Petitioner filed a 28 U.S.C. § 2241 petition on October 16, 2026, alleging among other claims that he had no meaningful opportunity to contest his custody, in violation of Fifth Amendment due process (Count Two). He sought release or, alternatively, an individualized custody review. Respondent argued he is subject to mandatory detention under 8 U.S.C. § 1225(b)(1) and that, if § 1226(a) applies, the only warranted remedy is a bond hearing.
The Court’s Holding
The magistrate judge did not decide which detention statute applies, explaining that Petitioner's due process rights and remedy are identical under § 1225(b) or § 1226(a). The court reasoned that the Due Process Clause protects noncitizens whether or not they have been admitted, and that a humanitarian parolee's liberty interest does not evaporate when the parole term expires, relying on earlier Eastern District decisions.
Noting that the Ninth Circuit has assumed without deciding that the Mathews v. Eldridge three-factor test governs, the court applied it and, consistent with its rulings in substantively identical cases, concluded that re-arresting Petitioner without a pre-deprivation hearing violated procedural due process. On remedy, it observed that the Constitution usually requires a hearing before deprivation and that the assigned district judge treats post-deprivation remedies as a special case requiring mitigating circumstances, such as a final removal order, criminal history, or individualized changed circumstances. Respondent identified none and none appeared in the record, so the court recommended release rather than a bond hearing.
The court denied appointment of counsel as moot, which is an order. Everything else is a recommendation to the district judge: grant the petition on Count Two; order immediate release, allowing standard supervision conditions; return Petitioner's documents and possessions; file a compliance certification within two court days; and require, before any re-detention, seven days' notice and a bond hearing before an immigration judge at which the government must prove flight risk or danger by clear and convincing evidence. The recommendation would not address detention if Petitioner becomes subject to an executable final removal order. Remaining claims were not addressed. Objections were due within three days of service.
Key Takeaways
- A noncitizen's liberty interest from humanitarian parole can survive expiration of the parole term, according to this recommendation.
- Re-arrest of a former parolee without a pre-deprivation hearing was found to violate procedural due process under the Mathews analysis.
- The court did not decide whether § 1225(b) or § 1226(a) governs, because it found the due process rights and remedy identical under either.
- Release rather than a bond hearing was recommended because the government identified no circumstances such as a final removal order or criminal history.
- These are findings and recommendations only; the district judge must still rule, and the claims the court did not address remain open.
Why It Matters
The recommendation shows how one Eastern District of California magistrate judge applies the court's recent habeas rulings to re-detained humanitarian parolees, treating pre-deprivation process as the norm and release as the default remedy when the government shows no special circumstances. Its decision not to resolve the statutory question narrows the dispute to the constitutional inquiry.
Its weight is limited. It is a magistrate judge's recommendation, not a final judgment, and does not bind the district judge, who may adopt, modify, or reject it. The footnote on the $5,130 apprehension fee is not a holding; Petitioner did not challenge the fee, and the court said only that imposing it without apparent process raised serious concerns. Whether the fee can be set aside remains open.