Unreported / Non-Citable
Background
Julian Tabalujan, a citizen of Indonesia, entered the United States in 2001 as a five-year-old on a B-2 visitor visa and has lived here since. On September 27, 2004, an immigration judge ordered him removed but granted withholding of removal. He remained at liberty and received employment authorization in 2021. As the court recounted, ICE agents detained him on October 2, 2026, without prior notice or any opportunity to be heard. That was three days after the Supreme Court stayed an order setting aside the Department of Homeland Security's third-country removal policy. The court observed that this timing suggests the government may intend to remove him to a country other than Indonesia.
Tabalujan filed a habeas petition on October 4, 2026, and respondents did not file a timely answer. In a footnote, the court said the failure may not have been accidental. It reported that the Chief Magistrate Judge had told the court's magistrate judges that the United States Attorney's Office decided to file nothing in response to some immigration-related habeas petitions, despite General Order 26-05. The court nonetheless stressed that a respondent's default does not itself justify habeas relief. The petitioner must still show custody in violation of federal law.
The court also found it had jurisdiction. It could not review a final order of removal, but it could adjudicate a challenge to detention.
The Court’s Holding
The court held that the arrest and detention violated Tabalujan's Fifth Amendment due process rights. His visa authorization had long expired, but immigration authorities chose not to detain him for decades, he received work authorization, and he built a substantial life in the only country he has essentially known. The court concluded that such a noncitizen has a protected liberty interest in remaining undetained. It saw no material constitutional difference between someone previously released from immigration detention and someone authorities chose never to detain. Applying Mathews v. Eldridge, the court said all three factors strongly favored Tabalujan. It relied on decisions it described as legally indistinguishable rather than a detailed independent weighing in this order.
The court ordered that judgment be entered granting the petition in part. The order (1) directs immediate release subject to reasonable conditions; (2) declares that the detention violated due process; (3) enjoins further detention absent at least seven days' notice and a pre-deprivation bond hearing before a neutral decisionmaker, where the government must prove by clear and convincing evidence that he is an unacceptable danger or flight risk; and (4) enjoins removal to a third country without reasonable notice and an opportunity to be heard before an immigration judge. The court grounded the third-country protection in due process rights to notice and a hearing before removal.
The relief is limited. The court said Tabalujan had not justified any different or additional relief. To the extent he sought an order barring removal itself, as opposed to procedural protections, the court said it lacked jurisdiction under 8 U.S.C. § 1252(g) and cited § 1252(b)(9).
Key Takeaways
- The court treated decades of government forbearance, including a grant of work authorization, as creating a protected liberty interest even though the petitioner had never been detained and released.
- A respondent's failure to answer a habeas petition does not entitle the petitioner to relief, and the petitioner must still show unlawful custody.
- The order conditions any future detention on seven days' notice and a pre-deprivation bond hearing, with the government bearing a clear-and-convincing burden.
- Before any removal to a third country, the petitioner must receive reasonable notice and a chance to be heard before an immigration judge.
- The court enjoined only procedural protections tied to removal, not removal itself, and said it lacks jurisdiction to bar removal directly.
Why It Matters
This is an unpublished magistrate judge order and carries persuasive weight only. It follows a line of recent district court decisions, while acknowledging at least one contrary decision from the same district. It shows how courts are treating detention of long-resident noncitizens whom the government previously left alone, and how they are handling the government's reported non-participation in some habeas cases.
Several matters remain open. The order does not specify the conditions of release. It does not decide whether Tabalujan can lawfully be removed anywhere, and it does not bar removal itself. Any later re-detention or third-country removal would have to proceed under the procedural protections the court imposed.