Unreported / Non-Citable
Background
Kemar Llewellyn, a citizen of Jamaica, entered the United States in May 2016 on a B2 tourist visa that expired in November 2016. He later married a U.S. citizen with whom he has two children; her Form I-130 petition for him was approved in February 2020, and his application to adjust status remained pending with USCIS. After a November 2018 arrest for battery, DHS opened removal proceedings charging him as inadmissible under 8 U.S.C. § 1227(a)(1)(B) for overstaying his visa, and ICE took him into custody. An immigration judge released him on a $4,000 bond roughly a month later, and the battery charge was later dismissed.
Llewellyn was arrested for burglary in November 2025 and transferred to ICE custody after his release from county jail; those charges were also dropped. Although Respondents asserted he was detained under 8 U.S.C. § 1226(a), he did not receive a bond hearing until nearly nine months after his arrest. At the August 2026 hearing, the immigration judge placed the burden on him to show he was neither a flight risk nor a danger, found he was not a danger because both charges had been dropped, but denied release as a flight risk without identifying what had changed since his 2018 release. He had by then been detained nearly a year with no decision in his removal proceedings and no hearing scheduled on the EOIR docket, and he alleged his health had deteriorated, leaving him wheelchair-bound and hospitalized at least once.
The Court’s Holding
The court first excused prudential administrative exhaustion. Exhaustion on habeas review under 28 U.S.C. § 2241 is prudential rather than jurisdictional, but an exception applies where pursuit of administrative remedies would be futile. Llewellyn was not challenging the immigration judge's bond findings; he contended that his year-long detention without adequate process violated the Fifth Amendment, a claim outside the Board of Immigration Appeals' jurisdiction, so requiring exhaustion would have been futile (citing Rufino Ligario Hernandez and Yero).
On the merits, the court held that Llewellyn's prior release on a $4,000 bond under § 1226(a) created a protected liberty interest inherent in the Due Process Clause. Where detention is discretionary under § 1226(a), the Fifth Amendment requires notice and an opportunity to be heard before bond is summarily revoked. Petitioner received neither until nine months after his initial arrest, and the later flight-risk finding did not explain what had changed since his 2018 release; the provision of a bond hearing nine months later did not remedy the violation. The court rejected Respondents' reliance on Rodriguez Diaz v. Garland, which addressed burden allocation at a bond hearing for someone already in custody, not seizure after years of government-sanctioned liberty without any prior process.
The petition was therefore granted as to the due-process claim, and Respondents were ordered to immediately release Petitioner from custody. The government may not impose additional restrictions unless determined necessary at a future pre-deprivation and/or custody hearing. If it seeks to re-detain him, it must give no less than seven days' notice and hold a pre-deprivation bond hearing before a neutral arbiter, at which it must show by clear and convincing evidence that he is a flight risk or danger to the community. The order expressly did not address detention if Petitioner becomes subject to an executable final order of removal, and the clerk was directed to close the case and enter judgment for Petitioner.
Key Takeaways
- A noncitizen's prior release on an immigration bond under 8 U.S.C. § 1226(a) can create a liberty interest protected by the Fifth Amendment.
- Revoking that release and re-detaining the noncitizen without notice and an opportunity to be heard at the outset of detention violates due process.
- A bond hearing held nine months after re-detention did not remedy the constitutional violation.
- Prudential exhaustion was excused as futile because the due-process claim was not within the Board of Immigration Appeals' jurisdiction.
- The release order imposed specific notice, hearing, and clear-and-convincing burden-of-proof requirements for any attempted re-detention before an executable final removal order.
Why It Matters
The decision distinguishes a challenge to the process surrounding bond revocation from an ordinary appeal of an immigration judge's bond decision. That distinction allowed the district court to reach the constitutional claim without requiring further administrative review and made the timing of the first meaningful hearing central to the result.
The remedy goes beyond release by regulating future government action: it bars additional restrictions absent a future hearing determination and requires advance notice, a neutral decision-maker, and clear and convincing evidence before renewed detention. At the same time, the court expressly left open what detention would be permissible if Llewellyn later became subject to an executable final order of removal.