Unreported / Non-Citable
Background
Petitioner Budler Junior Apollon, a native of Haiti, entered the United States through the Visa Waiver Program with France on November 22, 2023. On August 21, 2024, he filed an affirmative asylum application with USCIS, and his application for employment authorization was approved on February 20, 2025, remaining valid through February 19, 2030. For nearly two years, the government had full knowledge of his identity, immigration status, and location while affirmatively choosing not to detain him.
On July 31, 2026, ICE officers pulled Petitioner over while he was driving to work in Florida, inquired about his immigration status, and took him into custody without providing any notice or explanation for revoking the prior decision to allow him to remain out of detention. He was transferred to Otay Mesa Detention Center. Petitioner filed an initial habeas petition on August 24, 2026, and an amended petition on September 4, 2026, alleging a due process violation for the arbitrary revocation of his liberty without notice or a hearing. Respondents filed an abbreviated return stating Petitioner was lawfully detained under 8 U.S.C. § 1187 and deferring to the court on resolution.
The Court’s Holding
The court held that Petitioner possessed a protected liberty interest in remaining free from detention under the Fifth Amendment's Due Process Clause. Relying on a line of district court decisions within the Ninth Circuit—including Millan Berrocal v. Mullin, Jemna v. Mullin, Zhou v. Janec[k]a, Gagik T. v. Chestnut, and Kharitonova v. Albarran—the court reasoned that when the government has meaningful knowledge of a noncitizen's status, takes affirmative steps such as processing an asylum application and granting work authorization, and affirmatively chooses not to detain the individual for a significant period, a protectable liberty interest arises.
Applying the three-factor Mathews v. Eldridge balancing test, the court found all factors favored Petitioner. First, freedom from imprisonment is a fundamental liberty interest at the core of due process protection. Second, the risk of erroneous deprivation was high without a pre-deprivation hearing, particularly for a long-present, work-authorized asylum applicant with no criminal history. Third, the government's interest in detaining Petitioner without notice, reasoning, or a hearing was low; Respondents articulated no legitimate interest or material change in circumstances warranting detention, and pre-deprivation custody hearings are routine and impose minimal administrative burden. The court concluded Petitioner's detention without process violated the Fifth Amendment and granted the writ, ordering immediate release subject to prior conditions.
Key Takeaways
- Noncitizens who enter via the Visa Waiver Program and file affirmative asylum applications can acquire a protected liberty interest in remaining free from detention when the government affirmatively processes their applications, grants work authorization, and declines to detain them for an extended period.
- The government's decision not to detain an asylum applicant while adjudicating their case creates a due process right to notice and a pre-deprivation hearing before that liberty interest can be revoked.
- Under Mathews v. Eldridge, detention of a long-present, work-authorized asylum applicant without a pre-deprivation hearing violates due process because the private interest in liberty is high, the risk of erroneous deprivation without a hearing is substantial, and the government's interest in summary detention is low.
- Respondents' failure to articulate any legitimate interest or changed circumstances supporting detention, combined with the routine nature of custody hearings in immigration proceedings, weighs decisively against the government in the Mathews balancing test.
- The court ordered Petitioner's immediate release from custody, subject only to the conditions previously imposed, and directed the Clerk to enter judgment and close the case.
Why It Matters
This decision reinforces a growing consensus among district courts in the Ninth Circuit that the government cannot arbitrarily revoke its own decision to allow an asylum applicant to remain at liberty without providing constitutionally adequate process. By recognizing a liberty interest arising from the government's affirmative conduct—processing applications, granting work authorization, and refraining from detention for years—the ruling extends due process protections to a category of noncitizens who might otherwise be subject to mandatory detention provisions.
The court's application of Mathews v. Eldridge establishes a clear framework: when the government has exercised its discretion to permit an individual to live freely while pursuing legal relief, it cannot later retract that discretion without notice, reasoning, and a meaningful opportunity to be heard.