Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ELISEO LOPEZ-GAYTAN, Case No.: 3:26-cv-04754-RBM-DDL 12 Petitioner, ORDER GRANTING PETITION 13 v. FOR WRIT OF HABEAS CORPUS 14 MARKWAYNE MULLIN, Secretary, U.S. [Doc. 1] Department of Homeland Security, et al., 15 Respondents. 16 17 18 Before the Court is Petitioner Eliseo Lopez-Gaytan’s (“Petitioner”) Petition for Writ 19 of Habeas Corpus Pursuant to 28 U.S.C. § 2241 (“Petition”). (Doc. 1.) For the reasons 20 below, the Court GRANTS the Petition. 21 I. BACKGROUND 22 Petitioner, a citizen of Mexico, entered the United States without inspection in or 23 about 2004. (Doc. 1-2 at 12.) Petitioner “was subjected to administrative voluntary 24 departure to Mexico on three separate occasions” during the next two years. (Doc. 1 ¶ 36.) 25 He most recently entered the United States in or about September 2006, and has resided 26 here since then. (Id.) On May 21, 2018, Department of Homeland Security (“DHS”) 27 agents detained Petitioner and issued him a Notice to Appear, initiating removal 28 proceedings against him. (Doc. 1 ¶ 4.) That same day, Petitioner was released on an Order 1 of Release on Recognizance. (See Doc. 1-2 at 3–6.) On June 13, 2024, an immigration 2 judge granted Petitioner’s unopposed motion to terminate the removal proceedings on the 3 basis that the Notice to Appear was defective. (Doc. 1 ¶ 5.) 4 On or about August 12, 2026, Petitioner was detained while outside his home by 5 Immigration and Customs Enforcement. (Id. ¶¶ 1, 41.) Petitioner represents that he was 6 never shown a warrant, and the agents explained only that “they were arresting him because 7 he has an immigration problem.” (Id. ¶¶ 42–43.) He was taken to Otay Mesa Detention 8 Center, where he remains today. (Id.) 9 On August 19, 2026, Petitioner filed his Petition. (Doc. 1.) The Court set a briefing 10 schedule the next day. (Doc. 2.) Respondents filed their Response to Petition on August 11 27, 2026. (Doc. 5.) Petitioner filed his Reply on August 31, 2026. (Doc. 6.) 12 II. LEGAL STANDARD 13 A writ of habeas corpus is “available to every individual detained within the United 14 States.” Hamdi v. Rumsfeld, 542 U.S. 507, 525 (2004) (citing U.S. Const., Art. I, § 9, cl. 2). 15 “The essence of habeas corpus is an attack by a person in custody upon the legality of that 16 custody, and . . . the traditional function of the writ is to secure release from illegal 17 custody.” Preiser v. Rodriguez, 411 U.S. 475, 484 (1973). “Writs of habeas corpus may 18 be granted by the Supreme Court, any justice thereof, the district courts and any circuit 19 judge within their respective jurisdictions.” 28 U.S.C. § 2241(a). The petitioner bears the 20 burden of demonstrating that “[h]e is in custody in violation of the Constitution or laws or 21 treaties of the United States.” Id. § 2241(c)(3). 22 III. DISCUSSION 23 Petitioner argues that his detention violates the Administrative Procedure Act, 24 8 U.S.C. § 1357(a)(2)’s prohibition on warrantless arrests, the Fourth Amendment, and the 25 Fifth Amendment’s Due Process Clause. (Doc. 1 ¶¶ 54–88.) Respondents argue that 26 Petitioner was issued an administrative warrant, but do not otherwise substantively respond 27 to Petitioner’s arguments, stating only that they “do not oppose an order from this Court 28 directing a bond hearing be held pursuant to 8 U.S.C. § 1226(a).” (Doc. 5 at 2–3.) 1 The Parties agree that Petitioner is detained pursuant to 8 U.S.C. § 1226(a). (See id. 2 (citing Rodriguez Vazquez v. Bostock, 183 F.4th 1160 (9th Cir. 2026)); Doc. 1 ¶ 27.) 3 Therefore, and in light of Respondents’ non-opposition, the Court GRANTS the Petition. 4 The Court finds that immediate release, rather than a bond hearing, is the appropriate 5 remedy. See E.A. T.-B. v. Wamsley, 795 F. Supp. 3d 1316, 1324 (W.D. Wash. 2025) 6 (“Although the Government notes that Petitioner may request a bond hearing while 7 detained, such a post-deprivation hearing cannot serve as an adequate procedural safeguard 8 because it is after the fact and cannot prevent an erroneous deprivation of liberty.”); Jorge 9 M.F. v. Jennings, 534 F. Supp. 3d 1050, 1055 (N.D. Cal. 2021) (“if Petitioner is detained, 10 he will already have suffered the injury he is now seeking to avoid”); Domingo v. Kaiser, 11 Case No. 25-cv-05893 (RFL), 2025 WL 1940179, at *3 (N.D. Cal. July 14, 2025) (“Even 12 if Petitioner[] received a prompt post-detention bond hearing under 8 U.S.C. § 1226(a) and 13 was released at that point, he will have already suffered the harm that is the subject of his 14 motion; that is, his potentially erroneous detention.”). 15 Finally, Petitioner requests that Respondents “be enjoined from adding DHS 16 monitoring requirements to his release conditions, as [he] was not subject to electronic 17 monitoring per the terms of the Order of Release on Recognizance issued by Respondents 18 on May 21, 2018.” (Doc. 6 at 6; Doc. 1, Prayer for Relief (praying for immediate release 19 and a return “to the status quo ante, subject to the conditions of his preexisting Order of 20 Release on Own Recognizance”).) Given Respondents’ non-opposition to this request, and 21 the fact that Petitioner’s 2018 Order of Release on Recognizance does not include a 22 requirement that Petitioner be electronically monitored, the Court finds it appropriate to 23 grant this request as well. See Singh v. Noem, CASE NO. C26-0302JLR, 2026 WL 879247, 24 at *5 (W.D. Wash. Mar. 31, 2026); A.S. v. Noem, Case No. 5:26-cv-00316-MWC-DTB, 25 2026 WL 849279, at *6 (C.D. Cal. Jan. 29, 2026); Garcia v. Albarran, Case No. 26-cv- 26 04839-EKL, 2026 WL 1879641, at *8 (N.D. Cal. June 30, 2026). 27 / / / 28 / / / I IV. CONCLUSION?! 2 For 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 terms of his preexisting Order of Release on Recognizance. 5 Respondents MAY NOT subject Petitioner to any electronic monitoring that was 6 not a condition of Petitioner’s preexisting Order of Release on Recognizance. 7 2. The Court ORDERS, prior to any re-detention of Petitioner, that Petitioner shall 8 receive a hearing before an immigration judge pursuant to 8 U.S.C. § 1226(a) to 9 determine whether detention is warranted. At any such hearing, the noncitizen 10 SHALL BEAR the burden of establishing, by a preponderance of the evidence, that 1] he is not a flight risk or a danger to the community. See Rodriguez Diaz v. Garland, 12 53 F.4th 1189, 1197 (9th Cir. 2022). 13 3. At any such hearing, if the immigration judge determines that bond is appropriate, 14 the immigration judge SHALL consider alternative conditions of release and the 15 noncitizen’s ability to pay. See Hernandez v. Sessions, 872 F.3d 976, 990-91 (9th 16 Cir. 2017) (“A bond determination process that does not include consideration of 17 financial circumstances and alternative release conditions is unlikely to result in a 18 bond amount that is reasonably related to the government’s legitimate interests.”’). 19 IT IS SO ORDERED. 20 || DATE: September 1, 2026 2 ep Besrnidlr, Moats D ON. RUTH BERMGDEZ! MONTENEGRO UNITED STATES DISTRICT JUDGE 23 24 25 26 27 28 ' Tn light of the disposition herein, the Court declines to address the Petition’s remaining grounds for relief.