Unreported / Non-Citable
Background
Petitioner, a Nicaraguan national, entered the United States in December 2021 and was released by the Department of Homeland Security on an Order of Release on Recognizance (OREC). He has a pending asylum application and no criminal history. On August 5, 2026, Immigration and Customs Enforcement arrested him when he appeared for a scheduled appointment. The arrest record (a Form I-213) said he lacked lawful status and that 'further investigation' showed he had violated his OREC terms. It gave no date, type, or number of violations, and Respondents filed no officer declaration, OREC records, biometric reporting logs, or other electronic records.
DHS then issued a Notice to Appear, and removal proceedings are ongoing. Petitioner was transferred to the Golden State Annex Detention Facility and filed a habeas petition under 28 U.S.C. § 2241 alleging a Fifth Amendment due process violation, along with motions for a temporary restraining order and appointed counsel. Respondents moved to dismiss, conceding that he is detained under 8 U.S.C. § 1226(a) and is entitled to a bond hearing but arguing he must first exhaust administrative remedies. Neither side requested a hearing or more briefing, so the court decided the petition on the existing record.
The Court’s Holding
The court granted the petition and ordered immediate release. It found jurisdiction because 8 U.S.C. § 1252(g) does not reach a challenge to continued detention where no removal order exists. It waived prudential exhaustion, reasoning that a bond hearing was inadequate and inefficacious because re-detention without pre-deprivation notice and hearing warranted release. Treating detention as governed by § 1226(a), as the parties agreed, and relying on Ninth Circuit authority and its own earlier orders, it held that re-detention without a pre-deprivation hearing violated the Fifth Amendment Due Process Clause.
The court also rejected the suggestion that OREC violations justified the arrest. It said it would generally order a bond hearing where violations are alleged, but Respondents supplied no sufficient, independent, verifiable documentation of their quantity, nature, or substance, relying on a vague I-213 entry that surfaced only after Petitioner arrived for check-in. It distinguished orders for post-deprivation hearings that rested on detailed violation lists and officer declarations, and likened this case to decisions ordering release on unsubstantiated allegations. Such allegations, it concluded, did not show a change in circumstances justifying re-detention that was not clearly pretextual.
The motions for a temporary restraining order and appointed counsel were denied as moot. Respondents are enjoined from re-detaining Petitioner unless they give at least seven days' notice and hold a bond hearing before a neutral arbiter under § 1226(a), where the government must show by clear and convincing evidence that he is a flight risk or danger such that physical custody is justified. If legally sufficient circumstances justify arrest without advance notice, a similar hearing must follow within seven days. If a final removal order issues, Respondents may detain him solely to execute removal, with a bond hearing in the time the law requires. The clerk was directed to enter judgment for Petitioner and close the case. The order does not separately rule on the motion to dismiss.
Key Takeaways
- The court held that re-detaining a person released on recognizance under § 1226(a) without a pre-deprivation hearing violated Fifth Amendment due process, following its own earlier orders and citing Ninth Circuit authority.
- A bare I-213 statement that a person is 'in violation' of release conditions, with no dates, types, counts, supporting records, or officer declaration, did not justify re-detention here.
- The court waived prudential exhaustion because a bond hearing could not cure re-detention that it found required release.
- Release was not unconditional: any future re-detention requires seven days' notice and a bond hearing with a clear-and-convincing burden on the government, subject to the order's exceptions for justified arrests without notice and for execution of a final removal order.
- This is an unpublished district-court order with persuasive value only, and the court said it would generally order a bond hearing, not release, where violations are adequately documented.
Why It Matters
The order shows that the court separates OREC re-detention cases by the strength of the government's evidentiary showing. Specific, documented violations have led to bond hearings, while conclusory allegations have led to release. Government filings in similar cases will likely be tested on whether they include violation logs, database records, and officer declarations.
The ruling's reach is limited. It is an unpublished decision of a single district judge, resolved on the government's concession about § 1226(a) and a thin record. It does not decide whether Petitioner actually violated his release conditions, and his removal proceedings and asylum application remain pending.