Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ROBINSON ACOSTA-LITARDO, Case No.: 26-CV-4441 JLS (JAC)

12 Petitioner, ORDER GRANTING AMENDED 13 v. PETITION FOR WRIT OF HABEAS CORPUS 14 CHRISTOPHER LAROSE, Warden of Otay Mesa Detention Center, et al., 15 (ECF No. 5) Respondents. 16 17 18 Presently before the Court is Robinson Acosta-Litardo’s Amended Petition for Writ 19 of Habeas Corpus pursuant to 28 U.S.C. § 2241 (“Pet.,” ECF No. 5). Also before the Court 20 is Respondents’ Return to Habeas Petition (“Ret.,” ECF No. 7) and Petitioner’s Traverse 21 (“Traverse,” ECF No. 8). For the reasons set forth below, the Court GRANTS the Petition. 22 BACKGROUND 23 Petitioner, a citizen of Ecuador, alleges that he has been detained by the United 24 States Department of Homeland Security’s (“DHS”) Immigration and Customs 25 Enforcement (“ICE”) division at the Otay Mesa Detention Center. Pet. at 2. On June 4, 26 2024, Petitioner entered the United States where he was detained for a day. Id. Petitioner 27 was then paroled into the United States to allow him to apply for asylum. Id. After he was 28 1 paroled, Petitioner was placed into removal proceedings and submitted an asylum 2 application. Id. 3 On March 5, 2026, Petitioner was “accused of” petit theft and “questioned by the 4 police.” Id. The parties dispute whether Petitioner was in fact arrested following this 5 accusation, with Respondents claiming that he was (Ret. at 2, Ex. 2) and Petitioner 6 maintaining that he was not, Traverse at 1. ICE officials then arrested Petitioner and 7 revoked his parole without explanation or an opportunity to contest his detention. Pet. at 8 3. Petitioner alleges that his detention violates the Due Process Clause of the Fifth 9 Amendment and the Administrative Procedure Act. See generally id. 10 LEGAL STANDARD 11 A federal prisoner challenging the execution of his or her sentence, rather than the 12 legality of the sentence itself, may file a petition for writ of habeas corpus in the district of 13 his confinement pursuant to 28 U.S.C. § 2241. See 28 U.S.C. § 2241(a). The sole judicial 14 body able to review challenges to final orders of deportation, exclusion, or removal is the 15 court of appeals. See generally 8 U.S.C. § 1252; see also Alvarez-Barajas v. Gonzales, 16 418 F.3d 1050, 1052 (9th Cir. 2005) (citing REAL ID Act, Pub. L. No. 109-13, 119 Stat. 17 231, § 106(a)). However, for claims challenging ancillary or collateral issues arising 18 independently from the removal process—for example, a claim of indefinite detention— 19 federal habeas corpus jurisdiction remains in the district court. Nadarajah v. Gonzales, 20 443 F.3d 1069, 1076 (9th Cir. 2006), abrogated on other grounds by Jennings v. Rodriguez, 21 138 S. Ct. 830 (2018); Alvarez v. Sessions, 338 F. Supp. 3d 1042, 1048–49 (N.D. Cal. 22 2018) (citations omitted). 23 DISCUSSION 24 I. Jurisdiction 25 Respondents argue that this Court lacks jurisdiction under 8 U.S.C. § 1252(g). Ret. 26 at 3–4. Section 1252(g) provides that “no court shall have jurisdiction to hear any cause 27 or claim by or on behalf of any alien arising from the decision or action by the Attorney 28 General to commence proceedings, adjudicate cases, or execute removal orders against any 1 alien under this chapter.” 8 U.S.C. § 1252(g). Respondents argue that Petitioner’s claims 2 arise from DHS’s decision to commence removal proceedings. Ret. at 3. The Court 3 disagrees. 4 Section 1252(g) should be read “narrowly” as to apply “only to three discrete actions 5 that the Attorney General may take: her ‘decision or action’ to ‘commence proceedings, 6 adjudicate cases, or execute removal orders.’” Ibarra-Perez v. United States, No. 24-631, 7 2025 WL 2461663, at *6 (9th Cir. Aug. 27, 2025) (quoting Reno v. American-Arab Anti- 8 Discrimination Comm., 525 U.S. 471, 482, 487 (1999)). Section 1252(g) “does not 9 prohibit challenges to unlawful practices merely because they are in some fashion 10 connected to removal orders.” Id. at *7. Section 1252(g) does not bar due process claims. 11 Walters v. Reno, 145 F.3d 1032, 1052–53 (9th Cir. 1998) (finding that the petitioners’ 12 objective was not to review the merits of their proceeding, but rather “to enforce their 13 constitutional rights to due process in the context of those proceedings”). 14 Here, Petitioner does not challenge the decision to commence removal proceedings 15 or any act to adjudicate or execute a removal order. Rather, Petitioner is challenging his 16 re-detention without notice or justification. Pet. at 2–3. Petitioner is enforcing his 17 “constitutional rights to due process in the context of the removal proceedings—not the 18 legitimacy of the removal proceedings or any removal order.” Garcia v. Noem, 803 F. 19 Supp. 3d 1064, 1074 (S.D. Cal. 2025). Therefore, § 1252(g) does not strip the Court of 20 jurisdiction. 21 II. Due Process 22 Petitioner argues that the summary revocation of his parole without notice or a 23 hearing violates the Due Process Clause. Pet. at 5. The Court agrees. 24 A. 8 U.S.C § 1226(c) Does Not Defeat Petitioner’s Claims 25 As an initial matter, Respondents contend that Petitioner’s due process claims fail 26 because his detainment is mandated under 8 U.S.C. § 1226(c)(1)(E). Ret. at 4. This 27 argument is without merit. Section 1226(c) provides for the mandatory detention of a 28 noncitizen who “is charged with, is arrested for, is convicted of, admits having committed, 1 or admits committing acts which constitute the essential elements of any burglary, theft, 2 larceny, shoplifting, or assault of a law enforcement officer offense, or any crime that 3 results in death or serious bodily injury to another person.” 8 U.S.C. § 1226(c). 4 As noted above, whether Petitioner was ever arrested is in dispute. Respondents 5 argue that Petitioner was arrested by police for petit larceny and is thus subject to 6 mandatory detention under § 1226(c). Ret. at 4. But Petitioner rightly counters that 7 Respondents have failed to submit any evidence of the arrest or evidence that official 8 charges are still pending against Petitioner. Traverse at 2–3. Respondents’ support for 9 Petitioner’s arrest amounts to a DHS Record of Deportable/Inadmissible Alien, in which 10 the reporting officer states that Petitioner was arrested and that the charge was pending as 11 of March 3, 2026. Ret., Ex. 2. This self-serving evidence is insufficient to establish that 12 Petitioner was arrested at all, let alone that charges are still pending against him. Cf. Rios 13 Mendoza v. Mullin, No. 26-CV-2825 JLS (AHG), 2026 WL 1507832, at *2 (S.D. Cal. May 14 29, 2026) (granting in part a habeas petition on due process grounds despite the government 15 providing a copy of the petitioner’s arrest report). 16 Even if Respondents could provide additional proof of Petitioner’s arrest, their 17 efforts would still fall short. “[R]equiring mandatory detention because of a mere arrest 18 for which prosecutors concluded they did not have sufficient evidence to charge Petitioner 19 with a crime, raises serious due process concerns.” Singh v. Chestnut, No. 1:26-CV-00546- 20 DJC-AC, 2026 WL 266021, at *2 (E.D. Cal. Feb. 2, 2026). “To avoid those concerns, 21 courts have construed the Laken Riley Act to apply only where an individual is currently 22 charged with or arrested for the enumerated crimes, and concluding mandatory detention 23 is not required when charges are never filed, Helbrum v. Williams Olson, No. 4:25-CV- 24 00349-SHL-SBJ, 2025 WL 2840273, at *6 (S.D. Iowa Sept. 30, 2025), or where an 25 individual has been acquitted, E.C. v. Noem, No. 2:25-CV-01789-RFB-BNW, 2025 WL 26 2916264, at *10 (D. Nev. Oct. 14, 2025).” Id.; see also Cobis-Gamboa v. Warden, No. 27 2:26-CV-0658 DC CKD P, 2026 WL 1133342, at *2 (E.D. Cal. Apr. 27, 2026) 28 (“[A]llowing mandatory detention based upon arrest alone would essentially be a finding 1 that [P]etitioner is entitled to no due process protection over and above what is granted by 2 statute.”); Gopal B. v. Albarran, No. 1:26-CV-01083-TLN-CKD, 2026 WL 504736, at *3 3 (E.D. Cal. Feb. 24, 2026), enforced, No. 1:26-CV-01083-TLN-CKD, 2026 WL 807587 4 (E.D. Cal. Mar. 24, 2026). Nowhere in Respondents’ Return do they argue that Petitioner 5 is currently charged with the crime he was accused of.1 See generally Ret. 6 B. Respondents’ Revocation of Petitioner’s Parole Violated the Due Process 7 Clause 8 The Fifth Amendment guarantees that “[n]o person shall be . . . deprived of life, 9 liberty, or property, without due process of law.” U.S. Const. amend. V. “[T]he Due 10 Process Clause applies to all ‘persons’ within the United States, including aliens, whether 11 their presence here is lawful, unlawful, temporary, or permanent.” Zadvydas v. Davis, 533 12 U.S. 678, 693 (2001). “[I]t is well established that the Fifth Amendment entitles aliens to 13 due process of law in deportation proceedings.” Reno v. Flores, 507 U.S. 292, 306 (1993). 14 The Due Process Clause generally “requires some kind of a hearing before the State 15 deprives a person of liberty or property.” Zinermon v. Burch, 494 U.S. 113, 127 (1990). 16 “Even individuals who face significant constraints on their liberty or over whose liberty 17 the government wields significant discretion retain a protected interest in their liberty.” 18 Pinchi v. Noem, 792 F. Supp. 3d 1025, 1032 (N.D. Cal. 2025) (citations omitted). Although 19 the initial decision to detain or release an individual may be within the government’s 20 discretion, “the government’s decision to release an individual from custody creates ‘an 21 implicit promise,’ upon which that individual may rely, that their liberty ‘will be revoked 22 only if [they] fail[] to live up to the . . . conditions [of release].’” Id. (quoting Morrissey v. 23 Brewer, 408 U.S. 471, 482 (1972)). “Thus, even when ICE has the initial discretion to 24 detain or release a noncitizen pending removal proceedings, after that individual is released 25 26 1 As noted above, the DHS record states that Petitioner had charges pending against him. Ret., Ex. 2. In 27 addition to being self-serving, this is inadequate for two reasons. First, Respondents do not contend that 28 charges are still pending in the body of their brief. See generally Ret. And second, the report was made 1 from custody she has a protected liberty interest in remaining out of custody.” Pinchi, 792 2 F. Supp at 1032 (citing Romero v. Kaiser, No. 22-cv-20508-TSH, 2022 WL 1443250, at 3 *2 (N.D. Cal. May 6, 2022)). 4 Here, Petitioner was briefly detained by ICE, after which he was paroled into the 5 United States, Pet. at 2, thus entitling Petitioner a protected liberty interest. Pinchi, 792 F. 6 Supp at 1032. As Petitioner has such an interest, the Due Process Clause requires 7 procedural protections before he can be deprived of that interest. See Matthews v. Eldridge, 8 424 U.S. 319, 335 (1976). To determine which procedures are constitutionally sufficient 9 to satisfy the Due Process Clause, the Court must apply the Matthews factors. See 10 Matthews, 424 U.S. at 335. Courts must consider: 11 (1) “the private interest that will be affected by the official action”; (2) “the risk of an erroneous deprivation of such interest 12 through the procedures used, and the probable value, if any, of 13 additional or substitute procedural safeguards”; and (3) “the Government’s interest including the function involved and the 14 fiscal and administrative burdens that the additional or substitute 15 procedural requirement would entail.” 16 Id. 17 The Court finds that all three factors support a finding that the Government’s 18 revocation of Petitioner’s parole without notification or an opportunity to be heard, denied 19 Petitioner of his due process rights. First, as discussed above, Petitioner has a significant 20 liberty interest in remaining out of custody pursuant to his parole. “Freedom from 21 imprisonment—from government custody, detention, or other forms of physical restraint— 22 lies at the heart of the liberty [the Due Process Clause] protects.” Zadvydas, 533 U.S. at 23 690. 24 Second, the risk of an erroneous deprivation of such interest is high as Petitioner’s 25 parole was revoked without providing him a reason for revocation or giving him an 26 opportunity to be heard. Pet. at 3. Since DHS’s initial determination that Petitioner should 27 be paroled because he posed no danger to the community and was not a flight risk, there is 28 no evidence that these findings have changed. See Saravia v. Sessions, 280 F. Supp. 3d 1 1168, 1760 (N.D. Cal. 2017) (“Release reflects a determination by the government that the 2 noncitizen is not a danger to the community or a flight risk.”). “Once a noncitizen has been 3 released, the law prohibits federal agents from rearresting him merely because he is subject 4 to removal proceedings. Rather, the federal agents must be able to present evidence of 5 materially changed circumstances—namely, evidence that the noncitizen is in fact 6 dangerous or has become a flight risk. . . .” Saravia, 280 F. Supp. 3d at 1760. And, as 7 explained above, Respondents’ Exhibit is not enough to prove that Petitioner was arrested, 8 much less a flight risk or dangerous. “Where as here, ‘the petitioner has not received any 9 bond or custody hearing,’ ‘the risk of an erroneous deprivation of liberty is high’ because 10 neither the government nor [Petitioner] has had an opportunity to determine whether there 11 is any valid basis for her detention.” Pinchi, 792 F. Supp at 1035 (quoting Singh v. 12 Andrews, 803 F. Supp. 3d 1035, 1042 (E.D. Cal. 2025)) (cleaned up). 13 Third, the Government’s interest in detaining Petitioner without notice, reasoning, 14 and a hearing is “low.” See Pinchi, 792 F. Supp at 1035; Matute v. Wofford, 807 F. Supp. 15 3d 1120, 1126 (E.D. Cal. 2025); Ortega v. Bonnar, 415 F. Supp. 3d 963, 970 (N.D. Cal. 16 2019) (“If the government wishes to re-arrest [Petitioner] at any point, it has the power to 17 take steps toward doing so; but its interest in doing so without a hearing is low.”). 18 Respondents fail to point to any burdens on the Government if it were to have provided 19 proper notice, reasoning, and a pre-deprivation hearing. See generally Ret. 20 Therefore, because Respondents detained Petitioner by revoking his parole in 21 violation of the Due Process Clause, his detention is unlawful. See, e.g., Alegria Palma v. 22 Larose et al., No. 25-cv-1942 BJC (MMP), slip op. 14 (S.D. Cal. Aug. 11, 2025) (granting 23 a TRO based on a procedural due process challenge to a revocation of parole without a pre- 24 deprivation hearing); Sanchez v. LaRose, No. 25-CV-2396-JES-MMP, 2025 WL 2770629, 25 at *5 (S.D. Cal. Sept. 26, 2025) (granting a writ of habeas corpus releasing petitioner from 26 custody to the conditions of her preexisting parole on due process grounds). 27 / / / 28 / / / I CONCLUSION 2 Based on the foregoing, the Court GRANTS Petitioner’s Amended Petition for Writ 3 |}of Habeas Corpus (ECF No. 5), and ORDERS Respondents to immediately release 4 Petitioner from custody subject to the conditions of his preexisting parole. The Court 5 |} ORDERS, prior to any re-detention of Petitioner, that Petitioner is entitled to notice of the 6 ||reasons for revocation of his parole and a hearing before a neutral decision maker to 7 ||determine whether detention is warranted. The government shall bear the burden of 8 ||establishing, by clear and convincing evidence, that Petitioner poses a danger to the 9 ||}community or a risk of flight. The Parties are ORDERED to file a Joint Status Report by 10 September 4, 2026, confirming that Petitioner has been released. As this concludes the 11 || litigation in this case, the Clerk of Court SHALL CLOSE the file. 12 IT IS SO ORDERED. 13 Dated: August 28, 2026 pen Janis L. Sammartino 15 United States District Judge 16 17 18 19 20 21 22 23 24 25 26 27 28