Unreported / Non-Citable
Background
Petitioner Marco Tulio Hernandez Mendez, a native of Guatemala, entered the United States without permission years ago. In 2023, he filed an affirmative asylum application with USCIS, received a work permit and Social Security number, and complied with all application requirements. On June 15, 2026, while driving to work, Petitioner was pulled over, taken into custody despite presenting his work permit and explaining his pending asylum case, and was never shown paperwork or given reasons for his detention. He is currently held at the Imperial Regional Detention Facility. Petitioner filed an amended petition for a writ of habeas corpus under 28 U.S.C. § 2241, arguing his detention violates the Fifth Amendment's Due Process Clause and was an invalid warrantless arrest.
The court outlined the legal standard for habeas corpus, citing Hamdi v. Rumsfeld and Preiser v. Rodriguez, confirming that challenges to immigration detention fall within district court habeas jurisdiction under Zadvydas v. Davis and Demore v. Kim. The court applied the Mathews v. Eldridge three-part test for procedural due process: (1) the private interest affected; (2) the risk of erroneous deprivation and value of additional safeguards; and (3) the government's interest and administrative burdens. The court surveyed a line of Ninth Circuit and district court cases establishing that noncitizens can acquire a protectable liberty interest through various forms of government-sanctioned release, including parole, Alternatives to Detention (ATD), orders of supervision (OSUP), expired parole, and the government's affirmative decision not to detain after the noncitizen makes their presence known.
The Court’s Holding
The court held that Petitioner possesses a protectable liberty interest under the Due Process Clause despite his initial entry without inspection. The court reasoned that the liberty interest arises from the government's affirmative actions after becoming aware of the noncitizen's presence—specifically, processing the affirmative asylum application, granting work authorization, and permitting the noncitizen to remain free for years—rather than the manner of initial entry. The court found persuasive the reasoning in E.E.O.H v. Noem and Mendez Tzoc v. LaRose, where courts recognized liberty interests for noncitizens who entered without inspection but subsequently filed asylum applications and received work authorization. The court concluded that the government's conduct here was identical to those cases: it processed Petitioner's asylum application, granted work authorization, and allowed him to remain at liberty for at least three years.
Applying the Mathews factors, the court found all three weigh in Petitioner's favor. First, Petitioner has a significant liberty interest in remaining free after years of government-sanctioned presence. Second, the risk of erroneous deprivation is high when a long-present, work-authorized asylum applicant with no criminal history is seized without any pre-deprivation hearing. Third, the government asserted no legitimate interest in detaining Petitioner without a pre-detention hearing, and custody hearings in immigration court are routine and impose minimal cost. The court therefore held that Petitioner's detention without notice or a pre-deprivation hearing violates due process and renders his detention unconstitutional. The court granted the writ, ordered Petitioner's immediate release, declined to address the warrantless arrest claim, and ordered the parties to file a joint status report confirming release by October 28, 2026.
Key Takeaways
- A noncitizen's initial entry without inspection does not categorically bar a protectable liberty interest under the Fifth Amendment's Due Process Clause.
- Government actions such as processing an affirmative asylum application, granting work authorization, and permitting years of liberty create a liberty interest that triggers due process protections before detention.
- The Mathews v. Eldridge balancing test favors release when a long-present, work-authorized asylum applicant is detained without any pre-deprivation notice or hearing.
- The government's interest in detaining such individuals without a hearing is low, as immigration custody hearings are routine and impose minimal administrative burden.
- Courts in the Ninth Circuit and beyond have consistently extended due process protections to noncitizens whom the government has affirmatively allowed to remain at liberty during pending immigration proceedings.
Why It Matters
This decision reinforces a growing consensus among district courts in the Ninth Circuit that the government cannot indefinitely permit a noncitizen to live and work in the United States—through affirmative acts like granting work authorization and processing asylum claims—then suddenly detain them without any pre-deprivation process. The ruling clarifies that the liberty interest protected by the Due Process Clause stems from the government's own conduct in sanctioning a noncitizen's presence, not from the legality of their initial entry. By aligning with E.E.O.H. and Mendez Tzoc, the court extends due process protections to a broader class of asylum seekers who entered without inspection, limiting the government's ability to bypass procedural safeguards for individuals it has previously authorized to remain free.
The order also underscores the practical enforceability of habeas corpus under 28 U.S.C. § 2241 as a check on executive detention power. The court's rejection of the government's mootness argument—based on Petitioner's alleged withdrawal of a bond hearing request—affirms that the constitutional right to pre-deprivation process cannot be forfeited by procedural maneuvers when the underlying detention itself violates due process. This decision will likely be cited in similar cases challenging the detention of long-present, work-authorized asylum applicants.