Unreported / Non-Citable
Background
Stevenson Polynice petitioned under 28 U.S.C. § 2241 for a writ of habeas corpus challenging his immigration detention, which began in July 2026, and moved for a temporary restraining order. The court noted that noncitizens who entered without admission and are apprehended in the interior fall under the discretionary detention regime of 8 U.S.C. § 1226, not § 1225(b)(2)(A), citing the Ninth Circuit's decision in Rodriguez Vazquez v. Bostock. It had already addressed the Count One due process theory in Oliveira Tinoco, Kaur and Zhou, which held that noncitizens living at liberty for an extended period with the government's knowledge are entitled to a pre-deprivation bond hearing. Respondents did not oppose a ruling on the petition without further briefing, and Petitioner filed no reply.
Respondents conceded that detention is discretionary under § 1226(a). They argued that Petitioner had not requested a bond hearing under 8 C.F.R. § 1003.19(b) and was therefore lawfully detained. The court observed that Respondents' own attachments showed authorities had long known of him. He filed a temporary protected status application in February 2023, denied in June 2023. He filed an asylum and withholding of removal application in July 2023, still pending. He filed a second temporary protected status application in August 2023, also still pending. Respondents also alleged that he was detained after an arrest on charges involving controlled substances, a prohibited weapons device and child abuse or neglect. The order describes those charges as pending.
The Court’s Holding
The court granted the petition and the temporary restraining order on Count One, the due process claim. Joining other courts in the Ninth Circuit, it held that noncitizens who have lived at liberty during removal proceedings with the government's knowledge, including those with pending applications for relief, are constitutionally entitled to a pre-deprivation bond hearing before detention. Respondents had actual knowledge of Petitioner's life in the country for at least three years through three applications, two still pending. The court relied on its Oliveira Tinoco reasoning and on persuasive district decisions such as Kharitonova and Hernandez. Those decisions reason that a decision not to detain creates a liberty interest in continued freedom, and that a pre-deprivation hearing imposes only the ordinary burden of a hearing the government must eventually conduct under § 1226(a). Respondents offered no argument for why pending charges reduce the right to pre-deprivation process, and the court followed its recent Bonilla Urbina ruling on that point. It did not reach the petition's other grounds.
The remedy was a return to the status quo ante litem, meaning Petitioner's last uncontested status before detention. The court ordered immediate release on the same conditions that applied before the July 2026 detention. It barred added restrictions, such as electronic monitoring, unless a future pre-deprivation custody hearing finds them necessary. Respondents must return his documents and possessions and file a notice of compliance within three days. If the government seeks to re-detain him, it must give at least seven days' notice and hold a pre-deprivation bond hearing before a neutral arbiter who considers bond eligibility.
The order expressly does not address detention if Petitioner becomes subject to an executable final order of removal and receives notice of it. The court denied two other pending motions as moot, directed entry of judgment for Petitioner and closed the case. It did not decide the merits of his asylum, withholding or temporary protected status applications, his removal proceedings or the criminal charges.
Key Takeaways
- In this court's view, a noncitizen who has lived at liberty with the government's knowledge during removal proceedings may not be detained under § 1226(a) without a pre-deprivation bond hearing.
- Pending temporary protected status, asylum and withholding applications put the government on notice and supported the liberty interest here.
- Pending criminal charges did not change the outcome because Respondents offered no argument connecting them to the denial of pre-deprivation process.
- The relief restores the pre-detention status quo and bars added restrictions, such as electronic monitoring, unless a later hearing finds them necessary.
- Re-detention requires seven days' notice and a hearing before a neutral arbiter, and the order leaves open detention under an executable final removal order.
Why It Matters
This is a district court order granting individual habeas relief, so it binds only the parties and is persuasive elsewhere. It adds to the growing number of district decisions applying the pre-deprivation hearing rule to people with long-pending applications for relief, and it rests heavily on the court's own recent rulings.
The order is narrow in important ways. It rests only on procedural due process and leaves the other counts undecided. It does not resolve the merits of the immigration applications or the criminal charges. The government may still seek to detain Petitioner again after notice and a hearing.