Francisco Miguel Lopez-Sanchez v. Patrick Divver, Field Office Director of Enforcement and Removal Operations, San Diego Field Office, Immigration and Customs Enforcement, et al.
- Proceeding
- original
- Outcome
- writ granted — the Petition is GRANTED.
- Area
- civil
- Panel
- Ruth Bermudez Montenegro (author)
Analysis
The court considered a petition for a writ of habeas corpus filed by an immigration detainee who argued his re-detention without a hearing violated the Administrative Procedure Act, the Immigration and Nationality Act, and the Fifth Amendment. The court granted the petition, ordering the petitioner's immediate release on his previous bond and requiring a pre-deprivation hearing before any future re-detention.
| What the court decided | The model |
|---|---|
Petition for Writ of Habeas Corpus granted“The Petition is therefore GRANTED.” | unsure The court relied on the premise that the petitioner, having resided in the U.S. for 13 years, is subject to the discretionary detention procedures of 8 U.S.C. § 1226 rather than the mandatory detention provisions of 8 U.S.C. § 1225. It further held that re-detention without notice or a pre-deprivation hearing violated due process rights, citing Pinchi v. Noem and Morrissey v. Brewer. The court ordered immediate release rather than a bond hearing, citing E.A. T.-B. v. Wamsley and other district court decisions. While the order cites Lopez Benitez v. Francis (S.D.N.Y. 2025) for the proposition that § 1225 does not apply to long-term residents, this is a district court decision from another circuit and is not binding on the S.D. Cal. The Ninth Circuit has not definitively resolved whether § 1225(b) applies to noncitizens who have resided in the U.S. for many years and are subsequently re-detained, making the legal basis for the court's jurisdictional and statutory interpretation potentially unsound or at least untested at the appellate level. The due process analysis relies on Pinchi v. Noem (N.D. Cal. 2025), which is also a district court decision. The order does not cite any binding Ninth Circuit precedent supporting the conclusion that § 1226 applies to this petitioner or that immediate release is the appropriate remedy without a bond hearing. |
Immediate release ordered subject to previous bond“Respondents are ORDERED to immediately release Petitioner from custody, subject to the same $7,500 bond and conditions of release as ordered by the immigration judge in 2013.” | unsure The court found that a post-deprivation bond hearing is not an adequate procedural safeguard, citing E.A. T.-B. v. Wamsley (W.D. Wash. 2025). This is a district court decision from the Western District of Washington and is not binding on the Southern District of California. The court did not cite any binding Ninth Circuit authority requiring immediate release in these circumstances. The remedy of immediate release, rather than a prompt bond hearing, is a significant procedural determination that lacks clear support from binding appellate precedent. |
Pre-deprivation hearing required before any re-detention“The Court ORDERS, prior to any re-detention of Petitioner, that Petitioner shall receive a hearing before an immigration judge pursuant to 8 U.S.C. § 1226(a) to determine whether detention is warranted. Respondents shall bear the burden of establishing, by clear and convincing evidence, that Petitioner poses a danger to the community or a risk of flight.” | unsure The court imposed a specific procedural requirement for future re-detention, including a burden of proof standard (clear and convincing evidence). This is consistent with the general due process principles cited (Morrissey v. Brewer) but the specific application to immigration re-detention under § 1226(a) is not supported by binding Ninth Circuit precedent cited in the order. The order relies on district court decisions from other districts (N.D. Cal., E.D. Cal.) for this proposition. |
The order itself: sound with gaps — The order reaches a defensible result based on the due process principles cited, but it relies heavily on district court decisions from other districts (S.D.N.Y., N.D. Cal., W.D. Wash., E.D. Cal.) and its own prior unpublished decisions to support key legal propositions regarding the applicability of 8 U.S.C. § 1225 vs. § 1226 and the appropriate remedy. It does not cite any binding Ninth Circuit precedent on these issues. The Ninth Circuit has not definitively resolved whether § 1225(b) applies to noncitizens who have resided in the U.S. for many years and are subsequently re-detained, making the legal basis for the court's jurisdictional and statutory interpretation potentially unsound or at least untested at the appellate level. The order skips the argument that the government might have a compelling interest in immediate re-detention without a hearing, and it does not address the government's argument that detention has not become unconstitutionally prolonged, instead declining to address the petition's remaining grounds for relief.
Opinion
1 2 3 4 5 UNITED STATES DISTRICT COURT 6 SOUTHERN DISTRICT OF CALIFORNIA 7 8 FRANCISCO MIGUEL LOPEZ- Case No.: 3:26-cv-01288-RBM-BJW SANCHEZ, 9 ORDER GRANTING PETITION Petitioner, 10 FOR WRIT OF HABEAS CORPUS v. 11 [Doc. 1] PATRICK DIVVER, Field Office 12 Director of Enforcement and Removal 13 Operations, San Diego Field Office, Immigration and Customs Enforcement, et 14 al., 15 Respondents. 16 17 On February 28, 2026, Petitioner Francisco Miguel Lopez-Sanchez (“Petitioner”) 18 filed a Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 (“Petition”). 19 (Doc. 1.) Petitioner claims he is being detained in violation of the Administrative 20 Procedure Act, the Immigration and Nationality Act, and the Fifth Amendment’s Due 21 Process Clause. (Id. ¶¶ 28–60.) For the reasons below, the Petition is GRANTED. 22 I. BACKGROUND 23 Petitioner, a citizen of El Salvador, entered the United States without inspection on 24 June 27, 2013. (Id. ¶¶ 17–18.) Petitioner was determined to be inadmissible under 25 8 U.S.C. § 1182(a)(7)(A)(i)(I), placed in expedited removal proceedings, and taken into 26 Immigration and Customs Enforcement (“ICE”) custody. (Doc. 6 at 2 (citing Doc. 6-1 at 27 6).) After receiving a positive credible fear determination, Petitioner was issued a Notice 28 to Appear, which initiated removal proceedings against him under 8 U.S.C. § 1229. (Id.) 1 Petitioner was then released from immigration custody on a $7,500 bond. (Doc. 1 ¶ 19.) 2 Petitioner was subsequently re-detained on October 30, 2025. (Doc. 6 at 2.) 3 On February 28, 2026, Petitioner commenced this action by filing the Petition. 4 (Doc. 1.) The Court issued an Order to Show Cause and set a briefing schedule on March 5 2, 2026. (Doc. 2.) On March 9, 2026, Respondents filed their Return to Petition 6 (“Response”). (Doc. 6.) Petitioner was authorized to file a reply on or before March 16, 7 2026, but did not file one. 8 II. LEGAL STANDARD 9 A writ of habeas corpus is “available to every individual detained within the United 10 States.” Hamdi v. Rumsfeld, 542 U.S. 507, 525 (2004) (citing U.S. Const., Art. I, § 9, cl. 2). 11 “The essence of habeas corpus is an attack by a person in custody upon the legality of that 12 custody, and . . . the traditional function of the writ is to secure release from illegal 13 custody.” Preiser v. Rodriguez, 411 U.S. 475, 484 (1973). “Writs of habeas corpus may 14 be granted by the Supreme Court, any justice thereof, the district courts and any circuit 15 judge within their respective jurisdictions.” 28 U.S.C. § 2241(a). The petitioner bears the 16 burden of demonstrating that “[h]e is in custody in violation of the Constitution or laws or 17 treaties of the United States.” Id. § 2241(c)(3). 18 III. DISCUSSION 19 Respondents argue that: (1) Petitioner’s claims are jurisdictionally barred by 8 20 U.S.C. § 1252(g); (2) Petitioner is mandatorily detained under 8 U.S.C. § 1225(b); and (3) 21 Petitioner’s detention has not become unconstitutionally prolonged. (Doc. 6 at 3–9.) 22 Respondents’ arguments are nearly identical to those previously addressed by the 23 undersigned. See, e.g., Faizyan v. Casey, Case No.: 3:25-cv-02884-RBM-JLB, Case No.: 24 3:25-cv-02940-RBM-JLB, 2025 WL 3208844, at *2–7 (S.D. Cal. Nov. 17, 2025); 25 Rodriguez v. LaRose, 2025 WL 3456475, at *3–5 (S.D. Cal. Dec. 2, 2025). In those 26 decision, the Court found that: (1) it had jurisdiction to hear the petitioners’ claims because 27 they challenged the lawfulness of their ongoing detention rather than the decision to 28 commence removal proceedings or any act to execute a removal order; and (2) “‘a proper 1 understanding of the relevant statutes, in light of their plain text, overall structure, and . . . 2 case law interpreting them, compels the conclusion that § 1225’s provisions for mandatory 3 detention of noncitizens seeking admission [do] not apply to someone like [the petitioner],’ 4 who has been residing in the United States” for many years. Rodriguez, 2025 WL 3456475, 5 at *2–5 (quoting Lopez Benitez v. Francis, 795 F. Supp. 3d 475, 484 (S.D.N.Y. 2025)). 6 The Court makes the same findings here. 7 There is no dispute that Petitioner was detained on October 30, 2025, after having 8 resided in the United States for 13 years. (Doc. 1 ¶ 19; Doc. 6 at 2.) Therefore, the 9 discretionary detention procedures of § 1226 govern Petitioner’s detention. Petitioner’s 10 re-detention without notice or a pre-deprivation hearing, then, violated his due process 11 rights and renders his detention unlawful. See Pinchi v. Noem, 792 F. Supp. 3d 1025, 1032 12 (N.D. Cal. 2025) ((“[T]he government’s decision to release an individual from custody 13 creates ‘an implicit promise,’ upon which that individual may rely, that their liberty ‘will 14 be revoked only if they fail to live up to the . . . conditions of release.’”) (quoting Morrissey 15 v. Brewer, 408 U.S. 471, 482 (1972)). 16 Furthermore, the Court finds that immediate release, rather than a further bond 17 hearing, is the appropriate remedy. Accord Lopez-Mendez v. Larose, Case No. 25-cv- 18 03037-BAS-DDL, 2025 WL 3295331, at *2–4 (S.D. Cal. Nov. 26, 2025) (granting petition 19 and ordering the petitioner released on the same bond and conditions set by the immigration 20 judge in 2017); Rodriguez, 2025 WL 3485876, at *1–2 (granting petition and ordering the 21 petitioner released on the same bond and conditions set by the immigration judge in 2009); 22 E.A. T.-B. v. Wamsley, 795 F. Supp. 3d 1316, 1324 (W.D. Wash. Aug. 19, 2025) 23 (“Although the Government notes that Petitioner may request a bond hearing while 24 detained, such a post-deprivation hearing cannot serve as an adequate procedural safeguard 25 because it is after the fact and cannot prevent an erroneous deprivation of liberty.”) The 26 Petition is therefore GRANTED. 27 28 I IV. CONCLUSION?! 2 Based on the foregoing reasons, the Petition (Doc. 1) is GRANTED. Accordingly: 3 1. Respondents are ORDERED to immediately release Petitioner from custody, 4 subject to the same $7,500 bond and conditions of release as ordered by the 5 immigration judge in 2013. (See Doc. 1 § 19; Doc. 6 at 2.) 6 2. The Court ORDERS, prior to any re-detention of Petitioner, that Petitioner shall 7 receive a hearing before an immigration judge pursuant to 8 U.S.C. § 1226(a) to 8 determine whether detention is warranted. Respondents shall bear the burden of 9 establishing, by clear and convincing evidence, that Petitioner poses a danger to 10 the community or a risk of flight.’ 11 IT IS SO ORDERED. 12 || DATE: March 24, 2026 13 RA Birr Mpgy 14 HON. RUTH BERMUDEZ MONTENEGRO UNITED STATES DISTRICT JUDGE 15 16 17 18 19 20 21 22 23 25 ' Tn light of the disposition herein, the Court declines to address the Petition’s remaining 6 grounds for relief. 27 This relief has been granted in similar matters. See E.A. T.-B, 795 F. Supp. 3d at1324; 28 Duong v. Kaiser, 800 F. Supp. 3d 1030, 1044 (N.D. Cal. 2025); Lepe v. Andrews, 801 F. Supp. 3d 1104, 1119-20 (E.D. Cal. 2025).