Unreported / Non-Citable
Background
Richekardsain Mercilien entered the United States on February 7, 2024, under the Haitian Humanitarian Parole program, which required him to apply from abroad with a U.S.-based supporter and pass security, public-safety, and public-health vetting before travel authorization. He applied for asylum on March 29, 2025; a Form I-213 indicated temporary protected status, later terminated. His parole period expired June 12, 2025, after DHS ended the parole process in March 2025.
On August 21, 2026, Border Patrol agents on roving patrol stopped a car they suspected was driven by an illegal alien; Mercilien was the registered owner. They detained him and issued a notice to appear, which ICE amended on September 4, 2026, to categorize him as an arriving alien under 8 U.S.C. § 1225(b). The government confirmed mandatory detention without bond. He has no criminal history.
Mercilien filed a § 2241 habeas petition in the Southern District of Florida on August 28, 2026, alleging a due process violation. After a response, the case was transferred to the Eastern District of California on October 1, 2026, because he had been moved to a facility there. The matter was referred to Magistrate Judge Jeremy D. Peterson, who allowed supplemental briefing that respondents did not file.
The Court’s Holding
The magistrate judge rejected the government's position that Mercilien could be mandatorily detained as an arriving alien under § 1225(b)(2). Relying on the Ninth Circuit's Rodriguez Vazquez v. Bostock and five other circuits, the recommendation held that noncitizens present without admission and apprehended in the interior fall under § 1226, not § 1225(b)(2)(A). Because humanitarian parole is not an admission and Mercilien was apprehended in the interior, he fit that holding. The recommendation also noted respondents never addressed his due process claim.
On due process, the recommendation found a protected liberty interest in continued release based on his pre-authorized parole entry, more than two years living out of custody, and TPS, which reflected a prior determination that he was neither a flight risk nor a danger. Under Mathews v. Eldridge, his private interest in freedom is significant, the risk of erroneous deprivation without a bond hearing is high given prior vetting, and the government's interest in detention without a hearing is low because custody hearings are routine and impose minimal cost.
On remedy, the recommendation reasoned that habeas is a remedy for unlawful executive detention and the typical remedy is release. Because the government erroneously applied § 1225(b) and gave no lawful justification for detention without a pre-deprivation hearing, it recommended granting the petition and ordering immediate release without additional restrictions. Any re-detention would require at least seven days' notice and a constitutionally compliant bond hearing before a neutral arbiter, with the government proving flight risk or danger by clear and convincing evidence. The recommendation expressly did not address detention after an executable final order of removal.
Key Takeaways
- A noncitizen who entered through humanitarian parole and was apprehended in the interior is subject to § 1226's detention rules, not mandatory no-bond detention under § 1225(b)(2), under binding Ninth Circuit precedent.
- Parole entry, extended time out of custody, and a prior TPS grant can create a substantial liberty interest protected by the Due Process Clause.
- Under Mathews v. Eldridge, detention without any bond hearing violates due process where the private interest is weighty, the risk of erroneous deprivation is high, and the government's burden is minimal.
- Where the government erroneously applied § 1225(b) and offered no lawful justification for detention without a pre-deprivation hearing, immediate release is the appropriate habeas remedy rather than a delayed bond hearing.
- These findings and recommendations are subject to objection before the assigned district judge; any re-detention requires seven days' notice and a hearing at which the government must prove flight risk or danger by clear and convincing evidence.
Why It Matters
The recommendation applies Rodriguez Vazquez to reject reclassifying interior-apprehended parolees as arriving aliens subject to mandatory detention, and it underscores that the statutory argument does not answer whether detention without a pre-deprivation hearing satisfies the Fifth Amendment.
Its remedy is notable: rather than merely ordering a bond hearing, the magistrate judge concluded immediate release is the typical habeas remedy for a vetted parolee with no criminal history and no lawful justification for detention. The only circumstance left open is detention following an executable final order of removal.