Unreported / Non-Citable
Background
Rodrigo Miguel Hernandez, a Mexican citizen who entered the United States around 2008, has been in immigration detention since August 5, 2025. Earlier removal proceedings against him were terminated in March 2015. In February 2026 he filed a pro se habeas petition under 28 U.S.C. § 2241 and a motion for a temporary restraining order. The assigned district judge denied the TRO motion as untimely, appointed counsel, and referred the case to the magistrate judge. Counsel later filed a first amended petition. It came without leave or Respondents' written consent, and no motion to amend followed, so the court treated the original pro se petition as operative.
Respondents had argued that Petitioner was subject to mandatory detention under 8 U.S.C. § 1225(b), and he remained so detained until a bond hearing in August 2026. After Petitioner was granted voluntary departure in May 2026, the magistrate judge issued findings on July 24, 2026 recommending dismissal as moot, and Petitioner objected. The Board of Immigration Appeals had rejected his appeal on July 16, 2026. Petitioner then sought Ninth Circuit review, and that court granted a temporary stay of removal. He also moved for release on conditions or, alternatively, a constitutionally adequate custody redetermination, which Respondents opposed.
The Court’s Holding
The court first vacated its July 24 recommendation of dismissal as moot. It reasoned that Petitioner has petitioned the Ninth Circuit for review, that court has stayed removal, and the parties agree that 8 U.S.C. § 1226(a) governs his detention now. Under Prieto-Romero v. Clark, a noncitizen whose removal order is administratively final but stayed pending review may be detained under § 1226(a), not § 1231(a).
On the merits, the court surveyed Zadvydas, Demore, Jennings, Arteaga-Martinez and Rodriguez Diaz v. Garland. It observed that the Ninth Circuit has not decided whether due process requires a bond hearing for prolonged detention under § 1225(b). It relied on Ninth Circuit acknowledgment of district court orders for prolonged § 1226(c) detention, and on First, Second and Third Circuit decisions (with the Eighth Circuit contra). It also cited Eastern District of California rulings requiring bond hearings for unreasonably prolonged § 1225(b) detention, with the government bearing a clear and convincing burden. Petitioner spent twelve months in § 1225(b) detention before his August 18, 2026 § 1226(a) hearing, where the burden rests on the noncitizen. The court therefore recommends finding a due process violation.
The court recommends that the petition be granted and the release motion denied. It also recommends that Respondents be directed to provide an individualized hearing before an immigration judge meeting the requirements of Singh v. Holder, with the government proving flight risk or danger by clear and convincing evidence. If Petitioner is not found dangerous or too great a flight risk, the judge should consider his financial circumstances and alternative conditions of release. The court expressly did not decide whether the August 18 hearing was constitutionally adequate. These are recommendations to the assigned district judge, and objections are due within fourteen days.
Key Takeaways
- This is a magistrate judge's recommendation, not a final judgment. The assigned district judge must review it after the fourteen-day objection period.
- The court recommends finding that about twelve months of mandatory § 1225(b) detention without a bond hearing violated due process, while acknowledging the Ninth Circuit has not squarely decided the question.
- The recommended remedy is a new hearing with the burden on the government by clear and convincing evidence, not release, and the motion for release is recommended for denial.
- The court did not decide whether the August 2026 bond hearing was adequate, and Petitioner's Ninth Circuit petition and stay of removal remain pending.
Why It Matters
The report shows how Eastern District of California judges apply a government-burden bond hearing remedy to prolonged § 1225(b) detention, even after a later § 1226(a) hearing that placed the burden on the detainee. It is unreported and nonbinding. It relies on persuasive district decisions and on out-of-circuit authority that concerned § 1226(c) rather than § 1225(b).
Several matters remain open. The district judge may adopt, modify or reject the recommendation. The Ninth Circuit has yet to resolve the due process question for § 1225(b) detention. The adequacy of the August 2026 hearing was left undecided.