Unreported / Non-Citable
Background
Sukhvir S. entered the United States without admission in April 2022. Border Patrol detained him, initiated removal proceedings, and released him on recognizance after finding his fear-of-persecution-or-torture claim credible. His asylum application remained pending, and the order states that he had lived in the United States for four and a half years without acquiring a criminal history. ICE arrested him during a vehicle stop on October 13, 2026, and respondents detained him under 8 U.S.C. § 1226(a).
The petition alleged that ICE was treating the detention as mandatory and denying a bond hearing. Respondents conceded that Sukhvir S. was entitled to a custody-redetermination hearing, but none had been provided or scheduled. They also asserted that he had missed check-ins and violated out-of-area restrictions under an Alternatives to Detention program; he disputed those assertions, and the court found no supporting evidence. After the court directed respondents to produce custody determinations, warrants, or notices, they supplied no warrant or custody determination and did not explain the omission.
The court also rejected respondents’ suggestion that the 2022 processing involved expedited removal. It found no mention of expedited removal in the record, including the supplied Form I-213, and credited the April 23, 2022 Notice to Appear as showing standard removal proceedings. The petition therefore presented a challenge to civil immigration detention under 28 U.S.C. § 2241, not a ruling on the merits of asylum or removal.
The Court’s Holding
Chief Judge Troy L. Nunley held that Sukhvir S. had a protected liberty interest based on his years in the community and the government’s decision to release him on recognizance. Even if the alleged release violations could make his liberty revocable, they did not eliminate due-process protection. Applying the Mathews v. Eldridge factors, the court found a substantial private interest, a serious risk of erroneous deprivation because no neutral decisionmaker had assessed the detention, and only a negligible government burden in supplying routine custody procedures.
The court separately found violations of § 1226(a) and its regulations. Respondents produced no administrative arrest warrant despite the court’s production order, and the Form I-213 contained no mention of one. The record also lacked a Form I-286 or other initial custody determination, while respondents conceded that a custody hearing was owed but had not supplied one. The court concluded that pre-deprivation notice and a custody hearing were required and that no justification had been shown for treating post-deprivation remedies as sufficient.
The petition was granted, with immediate release on recognizance ordered along with return of documents and possessions and a compliance notice within two court days. Respondents were enjoined from re-arresting or re-detaining him under § 1226(a) without statutory and constitutional compliance, including at least seven days’ notice and a pre-deprivation hearing before a neutral factfinder. At that hearing, the government must show by clear and convincing evidence that its public-safety or appearance interests outweigh his liberty interest and cannot be addressed by an alternative to detention; counsel must be permitted. A final executable removal order would separately require seven days’ notice before execution and detention. The pending temporary-restraining-order and preliminary-injunction application was denied as moot, and the clerk was directed to enter judgment for petitioner and close the case.
Key Takeaways
- A noncitizen’s immigration status does not remove Fifth Amendment due-process protection from civil immigration detention.
- The court treated the absence of an administrative arrest warrant and initial custody determination as violations of § 1226(a) and its implementing procedures.
- Years of community residence and an earlier release on recognizance strengthened the protected liberty interest, while unsupported allegations of release violations did not defeat it.
- The order required immediate release rather than merely directing respondents to schedule the custody hearing they had already conceded was owed.
- Any future detention under § 1226(a) must satisfy detailed notice, hearing, proof, neutral-decisionmaker, and counsel requirements specified in the injunction.
Why It Matters
The decision applies both constitutional due-process analysis and ICE’s statutory and regulatory arrest obligations to order release where the government supplied neither basic custody process nor evidence supporting a changed justification for detention. It distinguishes the legality of custody from unresolved removal and asylum proceedings.
Its forward-looking injunction is especially consequential: it does not simply prohibit repetition of the same warrantless detention, but specifies the process and evidentiary showing required before another § 1226(a) arrest or detention. The order also addresses notice before detention to execute a final removal order, while leaving the underlying immigration proceedings undecided.