Unreported / Non-Citable
Background
Domingo Gaspar Tomas, a citizen of Honduras proceeding without counsel, petitioned for a writ of habeas corpus under 28 U.S.C. § 2241 on September 28, 2026. The same day he moved to proceed in forma pauperis, for a temporary restraining order, and for appointment of counsel. He states that he last entered the United States on or about March 10, 2022, encountered immigration officials, and was released. He has been in immigration detention since September 12, 2026, when the government issued a notice to appear, an arrest warrant, and a notice of custody determination. The notice to appear stated that he was never admitted or paroled into the United States.
On October 2, 2026, the government opposed the restraining order but said it had no objection to a ruling on the petition based on the existing briefing. It conceded that his detention is governed by 8 U.S.C. § 1226(a), and argued that post-deprivation bond procedures satisfy that provision. The court observed that the record did not indicate petitioner ever received a pre-deprivation hearing.
The Court’s Holding
The court granted the petition. It ordered respondent to release petitioner immediately and enjoined respondent from re-detaining him for any purpose, absent exigent circumstances, unless he is first given notice and a pre-detention hearing before an immigration judge. At that hearing respondent bears the burden to show, by clear and convincing evidence, that petitioner is a danger to the community or a flight risk. The court also granted in forma pauperis status, denied the restraining order and appointment-of-counsel motions as moot, directed service of the order on the Golden State Annex Detention Facility, and directed the Clerk to enter judgment for petitioner and close the case.
The reasoning is brief. The court rejected the government's position that post-deprivation bond procedures suffice, stating that, as it had found previously, procedural due process requires pre-deprivation process in these circumstances and that nothing in the record showed petitioner received it. It expressly incorporated its reasoning in Perez v. Albarran, No. 1:25-cv-01540-DAD-CSK (HC), 2025 WL 3187578 (E.D. Cal. Nov. 14, 2025), and concluded that petitioner's several years living within the United States gave him certain due process protections that were not provided here. On that record it found immediate release warranted.
This is a judgment granting the writ, not a recommendation or a dismissal with leave to amend. The order does not decide whether petitioner may ultimately be detained or removed, and it does not address the removal proceedings begun by the notice to appear. Whether he is dangerous or a flight risk is left for any future hearing, and exigent circumstances remain an exception to the notice and hearing requirement.
Key Takeaways
- The court granted a § 2241 petition and ordered release of a detainee whom the government conceded is held under § 1226(a), because the record showed no pre-deprivation hearing.
- The court rejected the argument that post-deprivation bond procedures satisfy the statute, relying on its earlier reasoning in Perez v. Albarran.
- Re-detention for any purpose is barred absent exigent circumstances unless petitioner first receives notice and a hearing before an immigration judge.
- At any such hearing the government must show danger to the community or flight risk by clear and convincing evidence.
- The restraining order and counsel motions were denied as moot, and judgment was entered closing the case.
Why It Matters
The order shows how this district court applies its own prior reasoning to detainees held under § 1226(a) who were detained without a hearing after a period of residence in the United States. It pairs release with a forward-looking injunction that places the burden on the government at any later hearing and sets the standard at clear and convincing evidence.
Its weight is limited. It is a short, non-reported order from a single district judge that leans on Perez for its analysis, and it does not bind other courts. The government conceded the § 1226(a) framework, so the order does not resolve contested questions about which detention statute governs people who were never admitted. It also does not specify how many years petitioner lived in the United States, so the threshold for the due process protection it recognizes remains undefined.