Unreported / Non-Citable
Background
Petitioner Jose Ruiz Hernandez has been a lawful permanent resident since December 6, 2003. On December 17, 2025, immigration authorities questioned petitioner on returning from a trip abroad about a 2013 foreign drug arrest that petitioner said had been dismissed. According to the government's submissions, a phone search confirmed no drug activity, but authorities concluded petitioner had engaged in prostitution, deemed petitioner inadmissible, issued a notice to appear, and detained petitioner. On September 14, 2026, an immigration judge found petitioner inadmissible, denied cancellation of removal, and ordered removal. Petitioner has appealed to the Board of Immigration Appeals, so the order is not final.
Petitioner sought habeas relief under 28 U.S.C. § 2241, arguing that prolonged detention without a bond hearing violates due process, and asked for release or alternatively a bond hearing. Respondent argued detention is mandatory under 8 U.S.C. § 1226(c), or alternatively 8 U.S.C. § 1225(b), and that about ten months does not offend due process. Section 1226(c) gives no statutory right to a bond hearing, so the question was constitutional. These are findings and recommendations referred to a district judge, not a final judgment.
The Court’s Holding
The magistrate judge recommended granting the petition. Demore v. Kim rejected a facial challenge to section 1226(c) but left as-applied challenges open, and neither the Ninth Circuit nor the Supreme Court has said when prolonged mandatory detention becomes unconstitutional. The judge rejected petitioner's six-month bright-line rule as unsupported by controlling precedent and applied the Lopez v. Garland factors because that case concerned the same statute, noting that the result would also favor petitioner under Mathews v. Eldridge.
Under Lopez, total length of detention, the most important factor, favored petitioner at ten months without a bond hearing, longer than periods other courts have found weighty. Likely future detention also weighed strongly for petitioner because the Board of Immigration Appeals appeal had just begun and Ninth Circuit review could follow. The third factor, delays attributable to the parties, was neutral because respondent cited petitioner's litigation strategy without any detail about the strategy or delay. Weighing the factors, the judge found a Fifth Amendment due process violation.
On remedy, the judge found release, the typical habeas remedy, appropriate rather than only a bond hearing, because respondent did not argue flight risk or danger, and petitioner has lived here over twenty-three years, has never been convicted of a crime, and holds the protected liberty interest of a permanent resident. The recommended order directs immediate release without added restrictions unless a future pre-deprivation hearing finds them necessary. Re-detention would require seven days' notice and a hearing before a neutral arbiter at which the government must prove flight risk or danger by clear and convincing evidence. Detention after an executable final removal order is expressly not addressed.
Key Takeaways
- Because this is a recommendation, nothing takes effect unless the district judge adopts it; objections were due within three days of service.
- Even where section 1226(c) mandates detention, ten months without a bond hearing was found to violate due process as applied to this permanent resident.
- Lacking binding guidance, the court weighed length of detention, likely future detention, and party-caused delays, and rejected a fixed six-month rule.
- A pending Board of Immigration Appeals appeal supports finding future detention lengthy, and a vague claim of litigation delay does not tip the delay factor.
- Release came with re-detention safeguards, and detention after an executable final removal order remains open.
Why It Matters
The findings add to district court authority that prolonged mandatory detention without a bond hearing eventually violates due process, even after Jennings v. Rodriguez rejected a statutory six-month limit. The court chose the Lopez test for section 1226(c) detainees over Mathews and the full Banda test.
As unadopted recommendations from a magistrate judge, the findings have no binding precedential effect and leave unsettled when due process requires a bond hearing. Their reach is tied to the facts: a long-term permanent resident, no conviction, no government claim of flight risk or danger, and a pending appeal. Whether the district judge adopts them remains open.