Unreported / Non-Citable
Background
Zacarias Bourgouin, a native and citizen of Haiti, entered the United States on or about March 7, 2024. The Department of Homeland Security processed him, issued an I-94, and released him on parole that day. DHS initiated removal proceedings in March 2024, but an immigration judge dismissed those proceedings on April 11, 2024. After his release, Bourgouin applied for employment authorization and asylum.
On October 16, 2026, after more than two and a half years at liberty, Immigration and Customs Enforcement officers approached Bourgouin while he was picking up a delivery order and took him into custody. The petition alleged that the government provided no prior notice or opportunity to be heard and that no neutral decisionmaker made an individualized determination about whether re-detention was warranted. He was taken to Otay Mesa Detention Center in San Diego, where he remained detained when the court ruled.
Bourgouin petitioned under 28 U.S.C. § 2241, arguing that re-detention without notice or a pre-deprivation hearing violated due process. Respondents maintained that he was subject to mandatory detention under 8 U.S.C. § 1225(b)(2) and that Rodriguez Vazquez v. Bostock did not apply, but acknowledged that district courts had rejected those positions. They declined to oppose the petition and deferred to the court on relief. The court treated the dispute as a collateral detention challenge within district-court habeas jurisdiction, not review of a final removal order.
The Court’s Holding
The court held that Bourgouin’s parole and prolonged release created a protected liberty interest in remaining out of custody. It reasoned that the government’s 2024 release decision implicitly determined that he was neither a danger to the community nor a flight risk. He had remained at liberty while pursuing asylum, and the court identified no suggestion that he had violated any release conditions. Relying on due-process authorities including Morrissey and Pinchi, the court explained that even when ICE initially has discretion to detain or release, a noncitizen acquires procedural protection after release.
Applying the three Mathews v. Eldridge factors, the court found that all supported Bourgouin. His private interest was substantial because freedom from physical detention lies at the heart of protected liberty. The risk of erroneous deprivation was high because Respondents revoked his release without notification, reasoning, or a hearing, and there was no evidence that the findings supporting his 2024 release had changed. The court also characterized the government’s interest in detaining him without those procedures as low, emphasizing that the government could take steps toward re-arrest while providing a hearing.
The court therefore concluded that the revocation of release and resulting detention were unlawful. It granted the petition on due-process grounds and ordered Respondents to release Bourgouin immediately, subject to his preexisting parole conditions. Before any re-detention, the government must give him notice of the reasons for parole revocation and a hearing before a neutral decisionmaker. At that hearing, the government bears the burden of proving by clear and convincing evidence that he poses a danger to the community or a flight risk. The parties must file a joint status report by November 17, 2026 confirming release, and the Clerk must close the file. A footnote permits counsel to submit an Equal Access to Justice Act fee application within 30 days; the order does not itself award fees.
Key Takeaways
- The court granted Bourgouin’s § 2241 petition because ICE revoked his existing release without notice, reasons, or an opportunity to be heard.
- His 2024 parole, extended period at liberty, and absence of any identified release violation supported a protected liberty interest in remaining out of custody.
- All three Mathews factors favored pre-deprivation process: a substantial liberty interest, a high risk of erroneous detention, and a low governmental interest in proceeding without a hearing.
- The judgment requires immediate release under preexisting parole conditions rather than merely a future custody hearing while detention continues.
- Any re-detention must be preceded by notice and a neutral-decisionmaker hearing at which the government must establish danger or flight risk by clear and convincing evidence.
Why It Matters
The order distinguishes a collateral challenge to the lawfulness of detention from a challenge to a final removal order, allowing the district court to adjudicate the due-process claim through habeas corpus. Its analysis turns on the government’s earlier release decision and the absence of demonstrated changed circumstances, rather than treating the initial detention discretion as eliminating later procedural rights.
The relief is specific and staged: immediate restoration of preexisting parole conditions now, followed by constitutionally required procedures before any future re-detention. The order also sets the government’s burden and evidentiary standard for that future hearing, requires confirmation of release through a joint status report, and separately preserves a timely EAJA fee application without deciding the fee request.