Unreported / Non-Citable
Background
Jose Luis Martinez Nunez, a native and citizen of Honduras, entered the United States on March 30, 2021, and applied for asylum. He was served with a Notice to Appear charging inadmissibility and was released by immigration officials on April 12, 2021. He received employment authorization and renewed it several times. An immigration judge ordered him removed on May 7, 2024, but his appeal to the Board of Immigration Appeals remained pending more than two years later.
ICE encountered him at a county jail after a misdemeanor driving-under-the-influence arrest and took him into custody on September 2, 2026. Around October 7, 2026, he was served a Notice of Custody Determination and asked for a bond hearing before an immigration judge. The government said this should trigger a hearing, but the record showed none had been scheduled. He then petitioned for habeas corpus under 28 U.S.C. § 2241. The government missed its answer deadline, and the court largely denied its extension request because of prejudice to him. The government then filed its response before the findings were finalized, and the court accepted the late brief because the prejudice had abated.
The Court’s Holding
The magistrate judge first found that Martinez Nunez is held under 8 U.S.C. § 1226(a), because he was released in 2021 under ICE's release authority and the government did not contend he is detained under § 1225(b). On the constitutional question, the court reasoned that the Due Process Clause protects noncitizens whether or not they are seeking admission. His prior release by ICE, his asylum application, and years of living in the country with work authorization gave him a protected liberty interest in remaining out of custody. The government did not dispute that he received no notice or hearing before arrest. Although he had requested a custody redetermination hearing, nothing showed one had been scheduled, let alone held. After roughly a month and a half in detention with no review of whether re-detention was necessary, the court concluded, under the Mathews v. Eldridge factors and relying on other Eastern District decisions, that the re-detention violated procedural due process.
On remedy, the court noted that the Constitution usually requires a hearing before a deprivation of liberty. The government made no specific argument that his criminal history justified only a post-deprivation remedy, so release was the appropriate remedy. The court therefore recommended that the petition be granted and that he be released immediately with his documents and possessions returned. It also recommended that the government certify compliance within three days of any final release order. Any future re-detention would require at least 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 final order would not address detention if he becomes subject to an executable final order of removal and receives notice of it.
Only the order accepting the late brief is operative now. The release and hearing provisions are recommendations to District Judge Dale A. Drozd. Objections are due within three days, a shortened period the magistrate judge found warranted by the nature of the relief and the completed briefing.
Key Takeaways
- A noncitizen previously released by ICE who has lived in the community on asylum and work authorization may hold a protected liberty interest in remaining free from custody.
- Re-detention with no pre-deprivation notice or hearing, followed by weeks with no scheduled bond hearing, can violate procedural due process even though § 1226(a) allows a custody redetermination.
- The court treated release, not merely a belated bond hearing, as the appropriate remedy because the government offered no specific reason that post-deprivation process would suffice.
- If the government seeks to re-detain him, the recommendations call for seven days' notice and a hearing at which the government bears a clear-and-convincing burden.
- This is a magistrate judge's recommendation, not a final judgment, and the district judge must still rule on it.
Why It Matters
The recommendation follows a series of Eastern District of California rulings that treat prior release as creating a liberty interest and that require process before re-detention. It also makes a notable remedial point: when a requested bond hearing remains unscheduled weeks after detention, the court favored release over simply ordering a hearing.
Its reach is limited. It is not binding precedent, and it rests on this record, including the absence of any government argument tying the DUI arrest to the remedy. The court left open detention if Martinez Nunez becomes subject to an executable final removal order, and his Board of Immigration Appeals appeal remains unresolved.