Unreported / Non-Citable
Background
Petitioner Yinpao Zhou, a citizen of China, has been detained by ICE since April 2, 2025. According to the petition, an immigration judge terminated his removal proceedings on August 13, 2025, and DHS appealed to the Board of Immigration Appeals on September 10, 2025. A separate immigration judge denied his request for release after a custody redetermination hearing, finding him a flight risk. Zhou then asked to leave for China while the appeal was pending, under DHS safeguards and without waiving the appeal. As he describes it, respondents would allow voluntary departure only if he consented to a removal order. He declined and filed this 28 U.S.C. § 2241 petition.
This was Zhou's second habeas action in the district. In Zhou v. Trump, No. 25-cv-3503 (Zhou I), the court denied relief on April 7, 2026, reasoning that his bond hearing did not violate the Fifth Amendment's Due Process Clause or the Administrative Procedure Act and that he had failed to exhaust administrative remedies by filing before appealing to the BIA. In the present petition, filed September 3, 2026, Zhou alleged that respondents violate his fundamental right to travel from the United States and his right not to face punitive conditions of detention. He sought a declaration, an order directing release under safeguards to facilitate travel to China, or alternatively immediate release. Respondents filed a return and Zhou filed a traverse.
The Court’s Holding
The court denied the petition on October 19, 2026, agreeing with respondents that the government may lawfully refuse voluntary departure. It treated Zhou as lawfully detained under 8 U.S.C. § 1226(a), citing its ruling in Zhou I. Voluntary departure, the court explained, is discretionary relief created by Congress under 8 U.S.C. § 1229c(b)(1)(A). The government may offer it but is not required to, so it was under no obligation to agree to Zhou's request, much less to let him leave without waiving his BIA appeal. Zhou cited no controlling authority treating that refusal as a violation of a fundamental right to travel, and the fact that the government exercised its discretion differently in another case was irrelevant. Relying on Tovar-Landin v. Ashcroft, 361 F.3d 1164, 1167 (9th Cir. 2004), and Monsalvo v. Bondi, 604 U.S. 712, 715 (2025), the court found no constitutionally protected liberty interest in voluntary departure and held the due process claim failed.
The court also rejected the argument that the availability of safeguards compels an offer of departure. Under 8 C.F.R. § 240.25, DHS may use safeguards after granting voluntary departure, and it had declined to grant it; Zhou cited nothing converting that discretion into a mandate. Alternatively, even had the court agreed with him, he identified no statutory authority allowing it to order release under safeguards to facilitate travel to China. To the extent he argued that prolonged detention had become punitive, the court declined release for the reasons in its Zhou I order. The order denies the petition and directs the clerk to close the file. It does not say whether the denial is with or without prejudice, and nothing in it makes it published or precedential.
Key Takeaways
- Voluntary departure is discretionary relief, so a detained noncitizen cannot insist that the government grant it or grant it on his preferred terms.
- The court found no constitutionally protected liberty interest in voluntary departure, so its denial did not support a due process claim for release.
- Regulatory safeguards under 8 C.F.R. § 240.25 apply after voluntary departure is granted and do not oblige DHS to grant it.
- Zhou's separate argument that prolonged detention had become punitive was resolved by reference to the earlier Zhou I order rather than by fresh analysis.
- The order does not decide the pending BIA appeal; whether his removal proceedings continue remains for the immigration authorities.
Why It Matters
The order is an unpublished district court ruling and carries persuasive rather than binding weight. It applies existing Ninth Circuit and Supreme Court authority to a recurring request by detainees whose removal cases remain pending: release or travel arrangements that would let them depart without giving up their appeals.
What remains open is limited. The ruling does not decide the merits of the BIA appeal, and it does not hold that prolonged detention can never become unconstitutional; it only declined release here on the reasoning of the earlier order, which is not in the record provided. It also does not address Zhou's options beyond recognizing that the government's offer of departure on its own terms was within DHS's discretion.