Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JIMY LOPEZ LOPEZ, Case No.: 26-CV-3768 JAO (SBC)

12 Petitioner, ORDER GRANTING IN PART 13 v. WRIT OF HABEAS CORPUS 14 PATRICK DIVVER, et al., (ECF No. 1) 15 Respondents. 16 17 18 Presently before the Court is Petitioner Jimy Lopez Lopez’s (“Petitioner”) Petition 19 for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241. ECF No. 1. Also before the 20 Court is Respondents Patrick Divver’s (Field Office Director, Immigration and Customs 21 Enforcement (“ICE”), Enforcement and Removal Operations San Diego Field Office), 22 Todd M. Lyon’s (Director, ICE), Markwayne Mullin’s (Secretary of the U.S. Department 23 of Homeland Security (“DHS”)), Todd Blanche’s (Attorney General, Executive Office 24 for Immigration Review), and Christopher J. LaRose’s (Senior Warden, Otay Mesa 25 Detention Center) (collectively, “Respondents” or the “Government”) Return to the 26 Petition, ECF No. 4, and Petitioner’s Amended Petition for Writ of Habeas Corpus, ECF 27 No. 5. For the reasons set forth below, the Court GRANTS the Petition on due process 28 grounds. 1 2 BACKGROUND 3 Petitioner is a native and citizen of Guatemala who entered the United States on or 4 about November 26, 2020. See ECF No. 5 at 2. He was detained for 2 days and then 5 released on his own recognizance. See id. In the six years since, Petitioner has lived, 6 worked, and established a community and network in California. See id. at 3. 7 On June 4, 2026, the vehicle in which Petitioner was a passenger was pulled over 8 by ICE officials. See id. at 2. Officials detained him without cause or explanation, and 9 Petitioner was issued a Notice to Appear that same day. See id. DHS has charged 10 Petitioner as being inadmissible under 8 U.S.C. § 1182(a)(6)(A)(i), as someone who 11 entered the United States without inspection. See id. 12 LEGAL STANDARD 13 A federal prisoner challenging the execution of his or her sentence, rather than the 14 legality of the sentence itself, may file a petition for writ of habeas corpus in the district 15 of his confinement pursuant to 28 U.S.C. § 2241. See 28 U.S.C. § 2241(a). The sole 16 judicial body able to review challenges to final orders of deportation, exclusion, or 17 removal is the court of appeals. See generally 8 U.S.C. § 1252; see also Alvarez–Barajas 18 v. Gonzales, 418 F.3d 1050, 1052 (9th Cir. 2005) (citing REAL ID Act, Pub. L. No. 109- 19 13, 119 Stat. 231, § 106(a)). However, for claims challenging ancillary or collateral 20 issues arising independently from the removal process—for example, a claim of 21 indefinite detention—federal habeas corpus jurisdiction remains in the district court. 22 Nadarajah v. Gonzales, 443 F.3d 1069, 1076 (9th Cir. 2006), abrogated on other 23 grounds by Jennings v. Rodriguez, 583 U.S. 281 (2018); Alvarez v. Sessions, 338 F. 24 Supp. 3d 1042, 1048–49 (N.D. Cal. 2018) (citations omitted). 25 DISCUSSION 26 27 28 1 Petitioner argues that the summary revocation of his parole without justification or 2 consideration of his individualized circumstances violates the Due Process Clause.1 See 3 ECF Nos. 1; 5. The Court agrees. 4 The Fifth Amendment guarantees that “[n]o person shall be . . . deprived of life, 5 liberty, or property, without due process of law.” U.S. Const. amend. V. “[T]he Due 6 Process Clause applies to all ‘persons’ within the United States, including aliens, whether 7 their presence here is lawful, unlawful, temporary, or permanent.” Zadvydas v. Davis, 8 533 U.S. 678, 693 (9th Cir. 2001). “[I]t is well established that the Fifth Amendment 9 entitles aliens to due process of law in deportation proceedings.” Reno v. Flores, 507 10 U.S. 292, 306 (1993). The Due Process Clause generally “requires some kind of a 11 hearing before the State deprives a person of liberty or property.” Zinermon v. Burch, 12 494 U.S. 113, 127 (1990). “Even individuals who face significant constraints on their 13 liberty or over whose liberty the government wields significant discretion retain a 14 protected interest in their liberty.” Pinchi v. Noem, 2025 WL 2084921, at *3 (N.D. Cal. 15 July 25, 2025) (citations omitted). Although the initial decision to detain or release an 16 individual may be within the government’s discretion, “the government’s decision to 17 release an individual from custody creates ‘an implicit promise,’ upon which that 18 individual may rely, that their liberty ‘will be revoked only if [they] fail[] to live up to the 19 . . . conditions [of release].’” Id. (quoting Morrissey v. Brewer, 408 U.S. 471, 482 20 (1972)). “Thus, even when ICE has the initial discretion to detain or release a noncitizen 21 pending removal proceedings, after that individual is released from custody [he] has a 22 protected liberty interest in remaining out of custody.” Id. at *3 (citing Romero v. Kaiser, 23 2022 WL 1443250, at *2 (N.D. Cal. May 6, 2022)). 24 25 1 Petitioner’s original Petition (ECF No. 1) sought enforcement of his rights as a member of the Bond 26 Denial Class certified in Maldonado Bautista v. Santacruz, No. 5:25-CV-01873-SSS-BFM (C.D. Cal.). See ECF No. 1. As Respondents argue, Petitioner is not eligible for membership in the Bond Class 27 certified in Maldonado Bautista, as he was inspected upon entry and detained in 2020. See ECF No. 4 at 28 2. However, as Petitioner argues in his Amended Petition (ECF No. 5), and as discussed in further detail 1 Upon arrival, Petitioner was released on conditional parole. See ECF No. 5 at 2. 2 Petitioner has complied with all conditions of release: Petitioner has been working and 3 living in the community for more than six years. Id. at 3. Petitioner has a protected 4 liberty interest in remaining out of custody. See, e.g., Pinchi, 2025 WL 2084921, at *4 5 (“[Petitioner’s] release from ICE custody after her initial apprehension reflected a 6 determination by the government that she was neither a flight risk nor a danger to the 7 community, and [Petitioner] has a strong interest in remaining at liberty unless she no 8 longer meets those criteria.”); Noori, 2025 WL 2800149, at *10 (“Petitioner is not an 9 ‘arriving’ noncitizen but one that has [been] present in our country for over a year. This 10 substantial amount of time indicates he is afforded the Fifth Amendment’s guaranteed 11 due process before removal.”); Matute v. Wofford, 2025 WL 2817795, at *5 (E.D. Cal. 12 Oct. 3, 2025) (finding petitioner had a protected liberty interest in his release). 13 As Petitioner has a protected liberty interest, the Due Process Clause requires 14 procedural protections before he can be deprived of that interest. See Matthews v. Eldridge, 15 424 U.S. 319, 335 (1976). To determine which procedures are constitutionally sufficient 16 to satisfy the Due Process Clause, the Court must apply the Matthews factors. See 17 Matthews, 424 U.S. at 335. Courts must consider: (1) “the private interest that will be 18 affected by the official action”; (2) “the risk of an erroneous deprivation of such interest 19 through the procedures used, and the probable value, if any, of additional or substitute 20 procedural safeguards”; and (3) “the Government’s interest, including the function 21 involved and the fiscal and administrative burdens that the additional or substitute 22 procedural requirement would entail.” Id. 23 The Court finds that all three factors support a finding that the Government’s 24 revocation of Petitioner’s parole without notification, reasoning, or an opportunity to be 25 heard, denied Petitioner of his due process rights. First, as discussed above, Petitioner 26 has a significant liberty interest in remaining out of custody pursuant to his conditional 27 parole. “Freedom from imprisonment—from government custody, detention, or other 28 forms of physical restraint—lies at the heart of the liberty [the Due Process Clause] 1 protects.” Zadvydas, 533 U.S. at 690. Petitioner has an interest in remaining in his 2 community. See Morrissey, 408 U.S. 471 at 482 (“Subject to the conditions of his parole, 3 he can be gainfully employed and is free to be with family and friends and to form the 4 other enduring attachments of normal life.”). 5 Second, the risk of an erroneous deprivation of such interest is high because 6 Petitioner’s parole was revoked without providing him a reason for revocation or giving 7 him an opportunity to be heard. ECF No. 5 at 2. “Where, as here, ‘the petitioner has not 8 received any bond or custody hearing,’ ‘the risk of an erroneous deprivation of liberty is 9 high’ because neither the government nor [Petitioner] has had an opportunity to 10 determine whether there is any valid basis for [his] detention.” Pinchi, 2025 WL 11 2084921, at *5 (quoting Singh v. Andrews, 2025 WL 1918679, at *7 (E.D. Cal. July 11, 12 2025)) (cleaned up). Since DHS’s initial determination that Petitioner should be paroled, 13 there is no evidence that their determination has changed. See Saravia v. Sessions, 280 F. 14 Supp. 3d 1168, 1176 (N.D. Cal. 2017) (“Release reflects a determination by the 15 government that the noncitizen is not a danger to the community or a flight risk.”). 16 Petitioner has not been arrested or otherwise in criminal trouble and is living and working 17 in the United States. ECF No. 5 at 3. “Once a noncitizen has been released, the law 18 prohibits federal agents from rearresting him merely because he is subject to removal 19 proceedings.” Saravia, 280 F. Supp. 3d at 1176. “Rather, the federal agents must be able 20 to present evidence of materially changed circumstances—namely, evidence that the 21 noncitizen is in fact dangerous or has become a flight risk[.]” Id. 22 Third, the Government’s interest in detaining Petitioner without notice, reasoning, 23 and a hearing is “low.” See Pinchi, 2025 WL 2084921, at *5; Matute, 2025 WL 2817795, 24 at *6; Ortega v. Bonnar, 415 F. Supp. 3d 963, 970 (N.D. Cal. Nov. 22, 2019) (“If the 25 government wishes to re-arrest [Petitioner] at any point, it has the power to take steps 26 toward doing so; but its interest in doing so without a hearing is low.”). Respondents fail 27 to point to any burdens on the Government if it were to have provided proper notice, 28 reasoning, and a pre-deprivation hearing. See generally ECF No. 4. l Therefore, because Respondents detained Petitioner by revoking his parole in 2 || violation of the Due Process Clause, his detention is unlawful. See, e.g., Navarro Sanchez, 3 ||2025 WL 2770629, at *5 (granting a writ of habeas corpus releasing petitioner from 4 custody to the conditions of her preexisting parole on due process grounds). 5 CONCLUSION 6 Based on the foregoing, the Court GRANTS Petitioner’s Petition for Writ of 7 || Habeas Corpus (ECF No. 1) on due process grounds. The Court ORDERS Respondents 8 ||to immediately release Petitioner from custody subject to the conditions of his preexisting 9 || parole. The Court ORDERS, prior to any re-detention of Petitioner, that Petitioner is 10 |/ entitled to notice of the reasons for revocation of his parole and a hearing before a neutral 11 decision maker to determine whether detention is warranted. The Government shall bear 12 || the burden of establishing, by clear and convincing evidence, that Petitioner poses a 13 danger to the community or a risk of flight. See, e.g., Matute, 2025 WL 2817795, at *8; 14 || Pinchi, 2025 WL 2084921, at *5; Doe v. Becerra, 787 F. Supp. 3d 1083, 1097 (E.D. Cal. 15 2025); Martinez Hernandez v. Andrews, 2025 WL 2495767, at *14 (E.D. Cal. Aug. 28, 16 2025); Isaev, v. LaRose, et al., 2026 WL 1162758, at *3 (S.D. Cal. Apr. 29, 2026). The 17 || Parties aae ORDERED to file a Joint Status Report by July 20, 2026, confirming that 18 || Petitioner has been released.” 19 IT IS SO ORDERED. 20 21 ||Dated: July 16, 2026 24 dn’ Jill A. Otake > a4 United States District Judge 25 Rie a 26 Although Petitioner does not renew this request in his Amended Petition, Petitioner requested 47 |[attomney’s fees, related expenses, and costs pursuant to the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412. See ECF No. 1 at 9. Should Petitioner still seek EAJA fees, Petitioner’s counsel may 2g || submit an appropriate EAJA fee application within 30 days of the issuance of this Order. See 28 U.S.C. § 2412(d)(1)(B).