Unreported / Non-Citable
Background
Ahyun Lee, a South Korean national, entered the United States in 2021 under the Visa Waiver Program and remained after her authorized stay expired. On August 10, 2026, she married U.S. citizen Jin Joo; on September 14, 2026, her husband filed a Form I-130 Petition for Alien Relative and Lee filed Forms I-485 and I-765 seeking adjustment of status and employment authorization. On October 10, 2026, ICE agents detained her at Los Angeles International Airport as she and her husband prepared to travel to Texas. She was served with a Notice of Custody Determination at 1:26 a.m. on October 11 and a Warrant for Arrest of Alien at 11:39 p.m. that day, and remained detained at the Adelanto ICE Processing Center.
On October 19, 2026, Lee filed a habeas petition and an ex parte TRO application alleging her arrest and detention violated the Immigration and Nationality Act, Ninth Circuit precedent, and her Fifth Amendment due process rights. The court granted the TRO on October 23 and issued an order to show cause on a preliminary injunction. The government conceded Lee is a bond-eligible Maldonado Bautista class member under 8 U.S.C. § 1226(a) but did not address her due process claim, and argued Momeni and Freeman barred her from challenging VWP limits by marrying and belatedly seeking adjustment of status.
The Court’s Holding
The court construed the government's silence on due process as a concession and found Lee has a protected liberty interest in freedom from detention: she has lived in the country over five years, has deep community ties and no criminal record, and her family's business employs over 200 workers. Under Mathews v. Eldridge, her private interests—physical liberty and her pending adjustment applications, which detention could cause USCIS to treat as abandoned—are significant. The risk of erroneous deprivation is serious: the government cannot show she is a danger or flight risk, and as a § 1226(a) class member she was entitled to a pre-deprivation hearing and notice, neither of which she received. The government's interest in detention without a hearing is low because custody hearings are routine and impose minimal cost.
On the statutory claim, the court distinguished Momeni and applied USCIS Policy Memorandum PM-602-0093, which directs that adjustment applications by VWP immediate relatives filed even after the 90-day period be adjudicated by USCIS before referral to ICE unless a removal order has issued. Because Lee filed her I-485 before ICE detained her and before any removal order, the court concluded USCIS shall adjudicate her application, while expressly declining to decide whether ICE must defer execution of a final removal order.
Granting the petition in part, the court ordered Respondents to release Lee within 24 hours and return her personal belongings, with no release restrictions such as electronic monitoring unless necessary at a future pre-deprivation bond hearing; to file a Notice of Compliance within 24 hours; and enjoined re-detention without individualized written notice two days in advance and a pre-deprivation bond hearing before an immigration judge. USCIS may continue adjudicating the pending I-485, I-765, and I-130 applications. The preliminary injunction request and motion for leave to amend were denied as moot, and the EAJA fee request was held in abeyance pending Montoya Palacios v. Liggins.
Key Takeaways
- A VWP entrant who overstays retains a Fifth Amendment liberty interest in freedom from detention where she has long residence, community ties, and no criminal record.
- Under Mathews, the government's interest in detaining a non-danger, bond-eligible noncitizen without a pre-deprivation hearing is low.
- USCIS must adjudicate a VWP immediate relative's adjustment application filed after the 90-day period if no removal order has issued.
- Habeas release restores the status quo ante after a warrantless arrest without notice or a pre-deprivation interview.
- The court left open whether ICE must defer executing a final removal order and held EAJA fees in abeyance pending a Supreme Court decision.
Why It Matters
This ruling confirms that VWP entrants do not forfeit due process protections against summary detention, and it gives practical effect to USCIS's own policy memorandum by treating internal guidance as a constraint on enforcement that would short-circuit pending adjustment applications. The remedial order is notably specific—24-hour release with return of belongings, no monitoring absent a future bond hearing, a compliance notice, and an injunction on re-detention without advance written notice and a hearing—showing how district courts tailor habeas relief to restore the status quo while preserving lawful enforcement. Holding EAJA fees in abeyance pending Montoya Palacios v. Liggins signals that fee availability in such cases remains unsettled.