Unreported / Non-Citable
Background
Petitioner Jose Luis Solano Lopez, a native and citizen of Nicaragua, entered the United States near Hidalgo, Texas, on or around October 20, 2022. He was briefly detained, released on his own recognizance, and ordered to appear for immigration proceedings scheduled for September 26, 2023. While released, Lopez was arrested twice for misdemeanor driving under the influence—on August 23, 2025, and June 14, 2026—but no charges were filed in either instance.
His 2025 arrest resulted in ‘ARREST RELIEF GRANTED’ under California Penal Code § 851.93 on September 3, 2026. On June 27, 2026, ICE officers detained Lopez in front of his Los Angeles residence without informing him of the reason for his arrest and without providing a hearing on the lawfulness of his detention. His next immigration hearing is scheduled for October 29, 2026, and he is not subject to a final order of removal.
The Court’s Holding
The Magistrate Judge recommends granting the petition for writ of habeas corpus and ordering Lopez’s release from ICE custody. The court found that Lopez’s Fifth Amendment right to due process was violated by the respondents’ failure to provide a custody redetermination hearing before or contemporaneously with his ICE detention. Prior to his arrest, Lopez had been released based on an explicit or implicit finding that he was not dangerous or a flight risk. While on release, he was arrested twice but never charged, and there is no suggestion he failed to comply with his conditions of release. Relying on a line of Eastern District of California cases (H.S.
v. Warden, Esteban-Escalante v. Warden, Rebolledo v. Chestnut, Martinez v. Chestnut) and the Ninth Circuit’s decision in Padilla v. ICE (2026), the court concluded that due process requires a pre-deprivation hearing for non-citizens previously released on recognizance who are not subject to the ‘entry fiction.’ The recommended remedy is release with specific conditions, including return of documents, a ban on new restrictions without a hearing, a 7-day notice and bond hearing requirement for any re-detention (at which the government must prove flight risk or danger by clear and convincing evidence), and a certification of compliance within three days.
Key Takeaways
- A non-citizen previously released on recognizance based on a finding of no danger or flight risk cannot be re-detained by ICE without a custody redetermination hearing, absent a final order of removal.
- Two arrests without charges, including one where arrest relief was granted under state law, do not justify dispensing with due process protections for continued detention.
- The Fifth Amendment due process right applies to all persons in the United States except those covered by the ‘entry fiction’ (e.g., arriving aliens at the border without authorization), per Padilla v. ICE (9th Cir. 2026).
- The appropriate remedy for a due process violation in this context is release from custody with conditions protecting against summary re-detention.
- The government must prove by clear and convincing evidence at a bond hearing before an immigration judge that a petitioner is a flight risk or danger to the community before any re-detention.
Why It Matters
This Findings and Recommendations order reinforces a developing line of authority in the Eastern District of California holding that ICE’s re-detention of non-citizens who were previously released on recognizance—and who are not subject to final removal orders—violates the Fifth Amendment’s Due Process Clause absent a prompt custody hearing. The decision applies the Ninth Circuit’s 2026 Padilla v.
ICE ruling, which clarified the broad scope of due process protections for non-citizens within the United States, rejecting the government’s ability to rely solely on prior arrests without charges to justify detention. The recommended conditions of release, particularly the requirement for a pre-deprivation hearing and clear-and-convincing-evidence standard for any future detention, impose significant procedural constraints on ICE enforcement actions in this district. The order is subject to de novo review by the assigned District Judge upon objection.