Unreported / Non-Citable
Background
Petitioner, an immigration detainee represented by counsel, filed a petition under 28 U.S.C. § 2241 on January 13, 2026, challenging her re-detention by the Department of Homeland Security. The district judge denied a temporary restraining order as untimely but saw serious questions about the process she received and converted the motion into one for a preliminary injunction. A magistrate judge then found she was likely to succeed on two claims: that the government violated its own regulations, 8 C.F.R. § 241.13(i)(2) and (3), by revoking her release on supervision without proper notice and an opportunity to be heard, and that its third-country removal policy contravenes Ninth Circuit law.
On May 3, 2026, without objection, the district judge adopted those findings, granted the preliminary injunction, ordered her released, and barred re-detention unless ordered at a custody hearing before a neutral arbiter where the government must prove flight risk or danger by clear and convincing evidence. The case was referred back for findings on the merits. Respondents' supplemental briefing offered no new argument on the claims. Beyond release, Petitioner asked for permanent injunctions against re-detention without a prior hearing and against removal to a third country.
The Court’s Holding
The magistrate judge recommends that the petition be granted and Petitioner released, for the same reasons the district judge previously adopted. The government violated her due process rights by failing to follow its own regulations when it revoked her release on supervision without proper notice and a hearing. The court also found that ICE's recent third-country removal policy, which Petitioner calls the Noem Memo, contradicts Ninth Circuit law and violates due process.
The court recommends denying a permanent injunction against future re-detention without a hearing. Applying the four-factor permanent injunction test, it reasoned that any such hearing requirement would need caveats for circumstances the court cannot fully anticipate, so an unintentionally overbroad restraint could frustrate authorized immigration enforcement and disserve the public interest. It also found that requiring the government to track a Petitioner-specific notice rule indefinitely imposes an unbalanced hardship. The court expressed confidence that Respondents will honor the res judicata effect of the habeas ruling, but said permanent relief may become appropriate if that confidence proves misplaced.
On third-country removal, the court rejected Petitioner's requested categorical ban, which arguably would compel her permanent residence because the immigration court had found removal to Mexico unavailable. It also rejected her alternative request as too vague to support contempt. It nonetheless found the claim not too speculative and recommends a permanent restraint on removing her under the two memoranda, which the recommendation dates March 10 and July 9, 2026 (other passages give different March dates), or derivative policies. Removal under independently created regulations and policies is not barred. The First Circuit in D.V.D. affirmed class-wide vacatur of the memoranda, but the Supreme Court stayed the district court order and granted certiorari, so that vacatur currently gives Petitioner no relief. The recommended restraint would dissolve automatically if the Supreme Court reverses.
Key Takeaways
- The recommendation is not a final judgment; the district judge must rule on it after the 14-day objection period, and it is not immediately appealable.
- The court found a due process violation from the government's failure to follow its own notice-and-hearing regulations when revoking release on supervision.
- A permanent pre-deprivation hearing requirement for future re-detention is recommended to be denied, though relief may be revisited if the government re-detains on grounds already rejected.
- The recommended third-country removal relief is narrow, covering only removal under the two memoranda and derivative policies.
- The Supreme Court's pending review of D.V.D. could end the removal restraint automatically.
Why It Matters
This is an unpublished magistrate judge's recommendation, so it has no precedential weight and is not yet an order. Its value lies in showing how Eastern District of California judges are tailoring habeas remedies: release and a preliminary hearing safeguard, but no standing individualized injunction that the government must track indefinitely.
The partial removal restraint depends on the unresolved Supreme Court case, so its practical reach is uncertain. Objections of up to 15 pages are due within 14 days, and failure to object may waive appellate rights. The court did not address any remedy beyond the memoranda-based removal restraint.