Unreported / Non-Citable
Background
Dandan Sheng, a native and citizen of Hong Kong, entered the United States on a B-1/B-2 visa in February 2023 and filed a timely asylum application in June 2023 that remains pending. She married a U.S. citizen, obtained employment authorization, worked lawfully, and established community ties without any criminal history. For over three years, the government took no action to detain her, effectively allowing her to remain at liberty while her immigration proceedings progressed.
On July 31, 2026, ICE officers arrested Sheng upon her arrival at Ontario International Airport on a domestic flight. The officers presented no judicial warrant, and Sheng received no prior notice of detention or individualized custody determination. She filed a petition for writ of habeas corpus under 28 U.S.C. § 2241 on August 3, 2026, challenging her detention as a violation of procedural and substantive due process under the Fifth Amendment. Respondents filed an answer on August 10, and Sheng replied the following day.
The Court’s Holding
The court first confirmed its habeas jurisdiction under 28 U.S.C. § 2241(c)(3), rejecting any jurisdictional bar under 8 U.S.C. §§ 1252(a)(5), 1252(b)(9), and 1252(g). Citing Jennings v. Rodriguez and Department of Homeland Security v. Regents, the court held that these provisions do not strip jurisdiction over claims challenging the legality of detention itself, as distinct from the decision to commence removal proceedings.
On the merits, the court applied the two-step procedural due process framework: (1) whether a protected liberty interest exists, and (2) whether the procedures attending the deprivation were constitutionally sufficient. Relying on a line of Ninth Circuit district court decisions including Gansukh v. Warden, Hu v. Mullin, and Kharitonova v. Albarran, the court held that Sheng's extended period of liberty—authorized by the government's affirmative decision not to detain her—created a protected liberty interest in remaining free from custody. The court then applied the three Mathews v. Eldridge factors: Sheng's private interest in freedom from imprisonment is at the core of Fifth Amendment liberty; the risk of erroneous deprivation is high absent any bond or custody redetermination hearing; and the government's interest in detaining her without process is low, especially given its prior determination not to detain her and the minimal burden of providing a hearing. All three factors strongly favored Sheng.
The court granted the petition and ordered Sheng's immediate release under the same conditions as before her detention, return of confiscated property, and a status report by October 28, 2026. Critically, the court enjoined respondents from re-detaining Sheng unless they demonstrate by clear and convincing evidence at a pre-deprivation hearing before a neutral decisionmaker that she presents a flight risk or danger to the community. The court declined to reach the substantive due process claim as unnecessary.
Key Takeaways
- A noncitizen who has lived at liberty for an extended period while immigration proceedings are pending—pursuant to the government's affirmative decision not to detain—acquires a protected liberty interest in remaining free from custody.
- Detention of such individuals without a pre-deprivation bond hearing violates procedural due process under the Fifth Amendment, as analyzed under the Mathews v. Eldridge balancing test.
- The government's prior decision not to detain an asylum applicant undermines any subsequent claim of flight risk or danger to the community, and the burden of providing a pre-detention hearing is minimal.
- Courts may enjoin re-detention unless the government proves flight risk or danger by clear and convincing evidence at a hearing before a neutral decisionmaker.
- Jurisdictional-stripping provisions of the INA (8 U.S.C. §§ 1252(a)(5), (b)(9), (g)) do not bar habeas challenges to the legality of detention itself, as distinct from removal orders.
Why It Matters
This decision reinforces a growing consensus among California district courts that the government cannot abruptly detain noncitizens who have been allowed to live freely in the community for years without first providing a bond hearing. By applying Mathews v. Eldridge to the immigration detention context, the court affirms that liberty interests acquired through the government's own conduct trigger constitutional procedural protections. The injunction against re-detention absent a pre-deprivation hearing with a heightened evidentiary standard (clear and convincing evidence) sets a significant procedural safeguard for similarly situated asylum applicants and other noncitizens with pending claims.
The ruling aligns with Supreme Court precedent in Zadvydas v. Davis and Ninth Circuit authority in Hernandez v. Sessions, extending due process protections to noncitizens who entered lawfully and were never previously detained. It also clarifies that INA jurisdiction-stripping provisions do not preclude habeas review of detention legality, preserving Article III courts' role in checking executive detention authority.