Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ELIAN XOL VALLE, Case No.: 3:26-cv-03437-RBM-JAC 12 Petitioner, ORDER GRANTING PETITION 13 v. FOR WRIT OF HABEAS CORPUS 14 CHRISTOPHER J. LAROSE, Senior [Doc. 1] Warden, Otay Mesa Detention Center, et 15 al., 16 Respondents. 17 18 19 Pending before the Court are Petitioner Elian Xol Valle’s (“Petitioner”) Petition for 20 Writ of Habeas Corpus (“Petition”) pursuant to 28 U.S.C. § 2241 (Doc. 1) and Ex Parte 21 Motion for Temporary Restraining Order (“TRO Motion”) (Doc. 2). For the reasons set 22 forth below, the Petition is GRANTED and the TRO Motion is DENIED AS MOOT. 23 I. BACKGROUND 24 Petitioner, a citizen and national of Guatemala, entered the United States with his 25 father as a minor on April 29, 2019. (Doc. 1 ¶¶ 20, 25–26; Doc. 6-1 at 8.) Petitioner’s 26 father claimed fear of persecution or torture for him and Petitioner if they were to return to 27 Guatemala. (Doc. 6-1 at 9.) Petitioner was detained, served with a Notice to Appear 28 (“NTA”), and processed for removal under 8 U.S.C. § 1182. (See id.; Doc. 1-4 at 1–2.) 1 “The [NTA] was filed with the San Francisco Immigration Court on January 29, 2020.” 2 (Doc. 1-2 at 6.) Petitioner was released from detention shortly thereafter under an Order 3 of Recognizance, “placed on an order of supervision[,] and attended regular ICE check- 4 ins.” (Doc. 1 ¶ 29; see Doc. 6-1 at 10; Doc. 1-3, Declaration of Mara Hayn [“Hayn Decl.”] 5 ¶ 4.) After Petitioner and his father attended their initial supervision appointment together, 6 Petitioner was informed that he was not required to appear for ICE check-ins “with the 7 same frequency as his father” because he was a minor attending school. (Doc. 1-3 [Hayn 8 Decl.] ¶ 5.) Petitioner still remained in an alternative to detention program, the Intensive 9 Supervision Appearance Program (“ISAP”), and subject to ICE supervision. (Id. ¶ 6; see 10 Doc. 1-2 at 2.) 11 On January 11, 2021, Petitioner’s father filed an application for asylum “which 12 would allow Petitioner to remain lawfully in the United States as a derivative asylee.” 13 (Doc. 1-2 at 6–7; see Doc. 6-1 at 10.) From 2022 through 2024, Petitioner was arrested 14 and convicted of several misdemeanor violations as a minor. (See Doc. 6-1 at 10–11.) On 15 August 13, 2025, Petitioner was arrested for possession of a weapon other than a firearm. 16 (See Doc. 6-1 at 10.) Petitioner was convicted on October 20, 2025, and sentenced to “90 17 days of jail with work release and 24 months of probation beginning on November 17, 18 2025.” (Doc. 1 ¶ 30.) 19 On January 10, 2025, Petitioner’s father attended a scheduled appointment with ICE 20 and was instructed to bring Petitioner to his next scheduled appointment. (Doc. 1-3 [Hayn 21 Decl.] ¶ 8.) As instructed, Petitioner and his father attended the scheduled appointment on 22 January 9, 2026. (Id. ¶ 10.) During that appointment, Petitioner was issued an Order of 23 Release on Recognizance (“OREC”), placed on an ankle monitor for electronic monitoring, 24 and “instructed to begin reporting for monthly ICE supervision appointments.” (Id.; see 25 Doc. 6-1 at 3, 5, 10.) “He was not told the reason why or for how long he would wear the 26 ankle monitor.” (Doc. 1 ¶ 31.) Petitioner continued to attend his required monthly ICE 27 check-ins. (Doc. 1-3 [Hayn Decl.] ¶ 10.) 28 On May 26, 2026, Petitioner was waiting to attend a scheduled ICE check-in when 1 an ICE officer took Petitioner in for questioning regarding his most recent arrest. (Id. 2 ¶¶ 33–34; Doc. 6-1 at 10.) Petitioner was then informed he was being detained but “was 3 never provided a specific reason for his detention.” (Doc. 1 ¶ 37.) “The officers only 4 alluded to his criminal history, stating that they ‘have seen it all.’” (Id.) Petitioner was 5 subsequently served with a Form I-200, Warrant for Arrest of Alien, and transferred to the 6 Otay Mesa Detention Center. (See id. ¶ 41; Doc. 6-1 at 2.) 7 II. LEGAL STANDARD 8 A writ of habeas corpus is “available to every individual detained within the United 9 States.” Hamdi v. Rumsfeld, 542 U.S. 507, 525 (2004) (citing U.S. Const., Art. I, § 9, cl. 2). 10 “The essence of habeas corpus is an attack by a person in custody upon the legality of that 11 custody, and . . . the traditional function of the writ is to secure release from illegal 12 custody.” Preiser v. Rodriguez, 411 U.S. 475, 484 (1973). “Writs of habeas corpus may 13 be granted by the Supreme Court, any justice thereof, the district courts and any circuit 14 judge within their respective jurisdictions.” 28 U.S.C. § 2241(a). The petitioner bears the 15 burden of demonstrating that “[h]e is in custody in violation of the Constitution or laws or 16 treaties of the United States.” Id. § 2241(c)(3). 17 III. DISCUSSION 18 Petitioner claims his immigration detention violates the Fifth Amendment’s Due 19 Process Clause, the Immigration and Nationality Act, and accompanying regulations. 20 (Doc. 1 ¶¶ 43–60.) Respondents assert that “Petitioner was previously released from 21 immigration custody on conditional parole issued under 8 U.S.C. § 1226(a)[,]” but 22 nonetheless maintain their position that “Petitioner is subject to mandatory detention under 23 § 1225(b)(2).” (Doc. 6 at 2.) “However, [Respondents] acknowledge[ ] that this Court, 24 and Courts in this District, have repeatedly reached the opposite conclusion under the same 25 and/or similar facts” and “on that basis . . . do[ ] not oppose the [P]etition and aver[ ] that 26 a bond hearing is the appropriate remedy based on Petitioner’s consistent failure to obey 27 the laws of the United States and California.” (Id. at 2–3.) 28 This Court has granted several habeas petitions filed by similarly situated petitioners 1 who were previously released from detention on their own recognizance and re-detained 2 several years later. In Faizyan v. Casey, the Court held such petitioners are “subject to the 3 discretionary detention procedures under 8 U.S.C. § 1226 and [their] detention without a 4 bond hearing violates the Due Process Clause.” Case No.: 3:25-cv-02884-RBM-JLB, 2025 5 WL 3208844, at *2 (S.D. Cal. Nov. 17, 2025); see Penagos-Alvarez v. LaRose, Case No.: 6 3:26-cv-00865-RBM-MSB, 2026 WL 539340 (S.D. Cal. Feb. 26, 2026); see also Ortega- 7 Cervantes v. Gonzales, 501 F.3d 1111, 1115 (9th Cir. 2007) (“It is apparent that the INS 8 used the phrase ‘release on recognizance’ as another name for ‘conditional parole’ under 9 § 1226(a).”). Applying the due process inquiry in Mathews v. Eldridge, 424 U.S. 319 10 (1976), the Court also found that Respondents’ summary revocation of the petitioner’s 11 “conditional parole without an opportunity to be heard deprived [him] of his due process 12 rights.” Faizyan, 2025 WL 3208844, at *7 (S.D. Cal. Nov. 17, 2025); see C.A.R.V. v. 13 Wofford, Case No. 1:25- CV 01395 JLT SKO, 2025 WL 3059549, at *9 (E.D. Cal. Nov. 14 3, 2025) (finding a due process violation where the petitioner was initially released on his 15 own recognizance). 16 Like in Faizyan, Petitioner was detained upon his initial entry into the United States 17 as a minor and released from ICE custody on his own recognizance. (See Doc. 6-1 at 10; 18 Doc. 1-3 [Hayn Decl.] ¶ 4.) After residing in the United States for nearly seven years, 19 Petitioner was re-detained and taken into ICE custody in May 2026. (Doc. 1 ¶¶ 3–5, 32– 20 38.) About four months prior to his re-detention, Petitioner was issued another OREC, 21 placed on an ankle monitor, and “instructed to begin reporting for monthly ICE supervision 22 appointments.” (Doc. 1 ¶¶ 10–11; see Doc. 6-1 at 3, 5, 10.) The Court therefore adopts its 23 reasoning in Faizyan and applies it here. For those same reasons, the Court finds that: (1) 24 Petitioner’s detention is governed by § 1226(a); and (2) ICE’s revocation of Petitioner’s 25 release on his own recognizance without a pre-deprivation hearing violated his due process 26 rights and rendered his detention unlawful. See Faizyan, 2025 WL 3208844, at *7; Leiva 27 Flores v. Albarran, Case No. 25-cv-09302-AMO, 2025 WL 3228306, at *5 (N.D. Cal. 28 Nov. 19, 2025) (finding a due process violation where the petitioner was initially released 1 on an order of release on recognizance and requiring hearing before detention). 2 Respondents argue that “a bond hearing is the appropriate remedy based on 3 Petitioner’s consistent failure to obey the laws of the United States and California.” (Doc. 4 6 at 3 (footnote omitted).) “But this argument “misapprehend[s] the purpose of a pre- 5 detention hearing: if Petitioner is detained, he will already have suffered the injury he is 6 now seeking to avoid.” Jorge M.F. v. Jennings, 534 F. Supp. 3d 1050, 1055 (N.D. Cal. 7 2021). “If the government wishes to re-arrest [Petitioner] at any point, it has the power to 8 take steps toward doing so; but its interest in doing so without a hearing is low.” Ortega 9 v. Bonnar, 415 F. Supp. 3d 963, 970 (N.D. Cal. 2019). 10 Additionally, Respondents released Petitioner on his own recognizance in January 11 2026—almost three months after his most recent criminal conviction in October 2025. 12 (Doc. 6-1 at 3–5). Petitioner “gained a liberty interest in [his] continued freedom when 13 [ICE] elected to release [him] on [his] own recognizance under [§] 1226(a), which implied 14 a promise that [he] would not be re-detained so long as [he] abided by the terms of [his] 15 release.” Valencia Zapata v. Kaiser, 801 F. Supp. 3d 919, 934 (N.D. Cal. 2025); see also 16 Ortega, 415 F. Supp. 3d at 970 (rejecting the government’s argument that the petitioner’s 17 liberty interest was lessened due to “his conviction and his noncitizen status” because he 18 “ha[d] already completed his criminal sentence, and at issue now is a civil detention.”). 19 “Release reflects a determination by the government that the noncitizen is not a danger to 20 the community or a flight risk.” Saravia v. Sessions, 280 F. Supp. 3d 1168, 1176 (N.D. 21 Cal. 2017), aff’d sub nom. Saravia for A.H. v. Sessions, 905 F.3d 1137 (9th Cir. 2018). 22 And since DHS’s determination that Petitioner should be released on his own 23 recognizance, the record before the Court contains no evidence of materially changed 24 circumstances. See Saravia, 280 F. Supp. 3d at 1176; Salazar v. Casey, Case No.: 25-CV- 25 2784 JLS (VET), 2025 WL 3063629, at *4 (S.D. Cal. Nov. 3, 2025). The alleged change 26 27 1 In light of the disposition herein, the Court declines to address the Petition’s remaining 28 1 circumstances—Petitioner’s criminal arrests and conviction—took place before 2 Respondents issued the OREC in January 2026 and subjected Petitioner to additional 3 ||conditions of release, including electronic monitoring and monthly ICE supervisory 4 ||appointments. (See Doc. 6-1 at 10 (stating that Petitioner was taken into ICE custody “due 5 his crimes and violations of his OREC conditions” but also stating that Petitioner’s most 6 || recent arrest was in August 2025 and that Petitioner was issued an OREC in January 2026).) 7 ||Respondents do not explain why Petitioner was not re-detained at his January 2026 8 ||appointment, do not point to any change in circumstances that would warrant 9 reconsideration of Petitioner’s parole, do not claim any violation of Petitioner’s recent 10 |} OREC conditions, and do not articulate any other reason for his re-detention. (See Doc. | 11 10.) The Court therefore finds that immediate release is the appropriate remedy. 12 IV. CONCLUSION 13 Based on the foregoing reasons, the Petition (Doc. 1) is GRANTED. Accordingly: 14 1. The Government is ORDERED to immediately release the noncitizen from 15 custody, subject to the conditions of his preexisting parole. 16 2. The Court ORDERS that, prior to any re-detention, the noncitizen SHALL 17 receive notice of the reasons for revocation of his release and a hearing before an 18 immigration judge pursuant to 8 U.S.C. § 1226(a) to determine whether detention 19 is warranted. The noncitizen bears the burden of demonstrating, by a 20 preponderance of the evidence, that he is not a danger to the community or a 21 flight risk. See Rodriguez Diaz v. Garland, 53 F.4th 1189, 1197 (9th Cir. 2022). 22 3. The TRO Motion (Doc. 2) is DENIED AS MOOT. 23 IT IS SO ORDERED. 24 ||DATE: July 10, 2026 6 HON. RUTH BERMUDEZ MONTENEGRO UNITED STATES DISTRICT JUDGE 27 28