Unreported / Non-Citable
Background
Khikar Shirinian, a noncitizen, entered the United States in December 2022 and was initially detained by immigration authorities. Days later, he was released on supervision and complied with all conditions of that supervision for nearly four years. His asylum application remained pending, and no final order of removal had been entered against him. He had no criminal record.
On October 5, 2026, at a routine check-in, Immigration and Customs Enforcement abruptly re-detained Shirinian without prior notice, without materially changed circumstances, and without affording him a prompt opportunity to be heard. He filed a petition for writ of habeas corpus on October 7, 2026. Respondents failed to file an answer within the allotted time.
The court noted that this failure to respond may not have been accidental. At a September 8, 2026 meeting of the Magistrate Judges of the Central District of California, the Chief Magistrate Judge reported that the United States Attorney's Office had decided it would file nothing in response to some immigration-related habeas corpus petitions, notwithstanding the court's general order directing respondents to show cause why the writ should not be granted.
The Court’s Holding
The court held that although habeas relief may not properly issue as a consequence of a respondent's default, Shirinian had carried his burden to prove entitlement to relief. The court found it had jurisdiction to adjudicate the challenge to re-detention, even though it would lack jurisdiction to review a challenge to a final order of removal under 8 U.S.C. § 1252(g). The court cited numerous district court decisions finding jurisdiction over similar challenges to ICE re-detentions.
The court held that constitutional due process, which extends to noncitizens present in the United States, prohibits deprivations of liberty without due process of law. A noncitizen previously detained but released on conditions has a constitutionally protected liberty interest that can be violated by re-detention. Because the government released Shirinian on supervision in 2022 and permitted him to remain undetained for years while he complied fully with conditions, he had a protected liberty interest in remaining undetained.
Applying the Mathews v. Eldridge analysis, the court concluded that Shirinian's abrupt re-detention without a prompt opportunity to be heard violated his due process rights. The court ordered judgment entered granting the petition in part, ordering respondents to release Shirinian immediately subject to the conditions of his previous supervision, and enjoining respondents from any further re-detention absent at least seven days notice and a pre-deprivation bond hearing before a neutral decisionmaker at which the government bears the burden of proving by clear and convincing evidence that Shirinian is an unacceptable danger to the community or an unacceptable risk of flight.
Key Takeaways
- Noncitizens released on immigration supervision who comply with conditions develop a constitutionally protected liberty interest that cannot be violated by arbitrary re-detention without due process.
- Abrupt re-detention without notice or a prompt opportunity to be heard violates due process under the Mathews v. Eldridge framework, even when no final order of removal exists.
- Federal courts have jurisdiction under 28 U.S.C. § 2241 to adjudicate habeas challenges to ICE re-detention, distinct from challenges to final removal orders.
- An appropriate remedy for unlawful re-detention includes immediate release on the same conditions previously imposed and injunctive relief requiring notice and a bond hearing before any future re-detention.
- The government bears the burden at any future bond hearing to prove by clear and convincing evidence that the petitioner is an unacceptable danger or flight risk before re-detention may occur.
Why It Matters
This decision reinforces the growing body of case law holding that noncitizens who comply with immigration supervision conditions acquire due process protections against arbitrary re-detention. It underscores that ICE cannot circumvent constitutional requirements by abruptly re-detaining individuals at routine check-ins without notice or an opportunity to be heard.
The court's inclusion of prospective injunctive relief—requiring seven days notice and a bond hearing with a heightened burden of proof—provides a meaningful safeguard against repeated violations and reflects a trend among federal courts within the Ninth Circuit to order such procedural protections. The decision also highlights concerns about the United States Attorney's Office's reported practice of declining to respond to certain immigration habeas petitions, though the court made clear that default does not automatically entitle a petitioner to relief.