Unreported / Non-Citable
Background
Jean Ralph Hilaire, a Haitian citizen, entered the United States on June 22, 2023, and was paroled under the Haitian Humanitarian Parole program through June 20, 2025. He received work authorization and applied for asylum. When he appeared for his affirmative asylum interview at the USCIS Newark Asylum Office on July 28, 2026, ICE re-detained him. He alleged that he received no notice of the reason and no individualized assessment of flight risk or danger to the community. On September 22, 2026, he was ordered removed and had until October 22, 2026, to appeal to the Board of Immigration Appeals. When he filed his petition, he was held at the Otay Mesa Detention Center in San Diego.
Hilaire petitioned for habeas corpus on September 28, 2026, asserting Fifth Amendment due process and Administrative Procedure Act claims and seeking release and attorney's fees. Respondents argued he was subject to mandatory detention under 8 U.S.C. section 1225(b)(2) and that the Ninth Circuit's Rodriguez Vazquez v. Bostock decision did not apply. They nonetheless acknowledged that the court's prior decisions would control if it adhered to them, said they had insufficient information about any termination of his parole under 8 C.F.R. section 212.5(e)(2), and stated that they did not oppose the petition and deferred to the court on relief. Hilaire filed a traverse on October 7, 2026.
The Court’s Holding
The court assumed without deciding that section 1225(b)(2) governs Hilaire's detention. It reasoned that this question is distinct from whether the government may take a person into custody without prior notice, an opportunity to be heard, and an individualized determination by a neutral decisionmaker. Respondents' passing reference to a guilty plea over a car accident did not show such a determination before re-detention. Because respondents did not oppose immediate release, the court construed that non-opposition as a concession that the detention violates due process.
Relying on Noori v. LaRose, 807 F. Supp. 3d 1146 (S.D. Cal. 2025), where parole was revoked by generic mass notice and the petitioner was arrested hours later, the court found Hilaire received even less process. Respondents never explained what had changed. In a footnote, the court noted that even if respondents meant to argue that expired parole returns the case to section 1225(b)(2), many courts in the Ninth Circuit hold that expiration of parole does not extinguish the right to due process. A bond hearing would not remedy a violation already suffered; only release could. The court did not reach the APA claim.
The petition was granted in part. Respondents must release Hilaire under the conditions that existed before July 28, 2026, and offer him release in the district within twenty-four hours of the order or release in or near Newark, New Jersey, by October 23, 2026. They are enjoined from re-detaining him unless they show, by clear and convincing evidence at a pre-deprivation hearing before a neutral decisionmaker, that he is a flight risk or danger to the community, and from placing him in Alternatives to Detention or fitting an ankle monitor. Fees and costs were denied without prejudice to an application within thirty days of judgment, and a joint status report confirming release is due October 30, 2026.
Key Takeaways
- The court assumed, without deciding, that mandatory detention under section 1225(b)(2) applied, yet still required pre-deprivation process before re-detention.
- Respondents' non-opposition to immediate release was construed as a concession that the detention violated due process.
- Following other district decisions, the court treated expiration of parole as not ending a petitioner's due process interest.
- Because a bond hearing could not cure the violation already suffered, the remedy was release, with re-detention barred absent a hearing and clear and convincing proof.
- The APA claim, the removal order and the pending appeal window were not resolved.
Why It Matters
This order adds to Southern District of California rulings treating the summary re-detention of paroled noncitizens as a due process problem, even where mandatory detention statutes may apply. Its reasoning rests partly on respondents' non-opposition, which may limit its force in contested cases.
As a district court order, it binds only the parties and is persuasive at most. Its remedy, including the bar on Alternatives to Detention and ankle monitoring, is specific to this petitioner, and the removal proceedings continue.