Unreported / Non-Citable
Background
Ashwanee Kumar first filed a habeas petition in this district on January 23, 2026, through prior counsel in a separate case. That petition argued that prolonged immigration detention without a constitutionally adequate bond hearing violated due process and that he was held under 8 U.S.C. § 1226(a). It did not raise a liberty-interest claim. The court granted it in part because the government agreed he was entitled to a bond hearing. On February 24, 2026, an immigration judge held that hearing, found Kumar a flight risk, and denied bond.
On July 23, 2026, Kumar, through new counsel, filed an amended petition seeking immediate release on a new theory: that he holds a protected liberty interest in remaining free from custody. On August 25, 2026, the court dismissed that petition as repetitive or duplicative of the first and because the cases Kumar cited arose in the parole context. Kumar moved for reconsideration the next day. He argued that he should not be punished for prior counsel bringing only a prolonged-detention claim, whose remedy is a bond hearing, rather than a liberty-interest claim, whose remedy is release. He also argued that, although never formally paroled, he had an equivalent liberty interest because the government let him apply affirmatively for asylum while out of custody.
On October 27, 2026, Kumar filed a notice of supplemental authority citing two recent Southern District decisions, Apollon v. Mullin and Hernandez Mendez v. Mullin. He characterized them as supporting the view that a noncitizen who has lived at liberty for years under the government's decision not to detain him holds a protected liberty interest and may not be detained without pre-deprivation process.
The Court’s Holding
In a short order dated October 28, 2026, Judge Linda Lopez granted the motion to reconsider and granted the amended petition. The order recites the Ninth Circuit's reconsideration standard: newly discovered evidence, clear error or manifest injustice, or an intervening change in controlling law. It does not say which ground it relied on. Its operative reasoning is that, after reviewing the amended petition, the court adopted the analysis from its recent Apollon decision.
Quoting Apollon, the court stated that even though a petitioner was not granted a form of affirmative parole, many courts have found that noncitizens in similar circumstances have a protectable liberty interest. Those are noncitizens who made their presence known to the government, which then decided not to detain them. On that basis the court found Kumar entitled to immediate release. The order does not recount the details of Kumar's release history, make separate findings about how long he lived at liberty, or discuss its earlier duplicative-petition rationale.
The relief is an order that Kumar be released immediately from detention under appropriate conditions of supervision. The order does not define those conditions and does not say what process the government must provide before any future re-detention.
Key Takeaways
- The court treated a noncitizen who made his presence known to the government, and whom the government then chose not to detain, as holding a protectable liberty interest even without formal parole.
- The court ordered release rather than another bond hearing, even though an immigration judge had denied bond on flight-risk grounds in February 2026.
- The order reverses the court's own earlier dismissal, which had treated the amended petition as duplicative and had distinguished the cited parole cases.
- The reasoning is adopted from Apollon v. Mullin rather than developed independently, so the order's weight depends on that decision.
- This is an unreported single-judge district court order in one habeas case and does not bind other courts.
Why It Matters
The order applies a liberty-interest theory, developed in parole-related cases, to a detainee who was never formally paroled. It does so by incorporating another order from the same court issued only a week earlier, rather than by new analysis.
Because the order is brief, unreported and adopts reasoning from another order, it carries limited precedential weight. Open questions include what factual showing is required, what supervision conditions apply, whether the government will seek further review, and what process must precede any new detention. The order does not address the immigration judge's bond denial, and it does not resolve Kumar's underlying immigration or asylum proceedings.