Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 LEANDRO JOSE ECHENIQUE Case No.: 26-CV-4549 JAO (BJW) DALPONTE, 12 ORDER GRANTING IN PART Petitioner, 13 WRIT OF HABEAS CORPUS v. 14 (ECF No. 1) PATRICK DIVVER, et al., 15 Respondents. 16 17 18 Before the Court is Petitioner Leandro Jose Echenique Dalponte’s (“Petitioner”) 19 Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 (ECF No. 1). Also 20 before the Court is Respondents Patrick Divver’s (Field Office Director of Enforcement 21 and Removal Operations, San Diego Field Office, Immigration and Customs 22 Enforcement (“ICE”)), Todd M. Lyons’ (Acting Director, ICE), the United States 23 Department of Homeland Security’s (“DHS”), Markwayne Mullin’s (Secretary of the 24 DHS), Todd Blanche’s (Attorney General of the United States), Executive Office for 25 Immigration Review’s, and Christopher J. LaRose’s (Warden of Otay Mesa Detention 26 Facility) (collectively, “Respondents” or the “Government”) Return to the Petition (ECF 27 No. 4). 28 1 For the reasons set forth below, the Court GRANTS IN PART the Petition on due 2 process grounds. 3 4 BACKGROUND 5 Petitioner is a Venezuelan citizen who entered the United States on September 7, 6 2023. See ECF No. 1 at 2. He was granted humanitarian parole until June 12, 2025. See 7 id. at 21. On July 6, 2026, ICE pulled Petitioner over while Petitioner was driving in Fort 8 Myers, Florida, and arrested him. See id. at 2. ICE took him to the Otay Mesa Detention 9 Facility, where he has remained since. See id. He received no notice or pre-detention 10 hearing before being detained. See id. On July 29, DHS issued him a Notice to Appear 11 charging him as inadmissible. See id. at 16. Petitioner is set to have a hearing before an 12 immigration judge on August 19, 2026, see ECF No. 4, Ex. 1, meaning there is no final 13 order of removal against Petitioner. 14 LEGAL STANDARD 15 A federal prisoner challenging the execution of his or her sentence, rather than the 16 legality of the sentence itself, may file a petition for writ of habeas corpus in the district 17 of his confinement pursuant to 28 U.S.C. § 2241. See 28 U.S.C. § 2241(a). The sole 18 judicial body able to review challenges to final orders of deportation, exclusion, or 19 removal is the court of appeals. See generally 8 U.S.C. § 1252; see also Alvarez–Barajas 20 v. Gonzales, 418 F.3d 1050, 1052 (9th Cir. 2005) (citing REAL ID Act, Pub. L. No. 109- 21 13, 119 Stat. 231, § 106(a)). However, for claims challenging ancillary or collateral 22 issues arising independently from the removal process—for example, a claim of 23 indefinite detention—federal habeas corpus jurisdiction remains in the district court. 24 Nadarajah v. Gonzales, 443 F.3d 1069, 1076 (9th Cir. 2006), abrogated on other 25 grounds by Jennings v. Rodriguez, 583 U.S. 281 (2018); Alvarez v. Sessions, 338 F. 26 Supp. 3d 1042, 1048–49 (N.D. Cal. 2018) (citations omitted). 27 28 1 DISCUSSION 2 I. Jurisdiction 3 Respondents argue that this Court lacks jurisdiction under 8 U.S.C. § 1252(g). See 4 ECF No. 4 at 1–3. 8 U.S.C. § 1252(g) provides that “no court shall have jurisdiction to 5 hear any cause or claim by or on behalf of any alien arising from the decision or action by 6 the Attorney General to commence proceedings, adjudicate cases, or execute removal 7 orders against any alien under this chapter.” 8 U.S.C. § 1252(g). Respondents argue that 8 Petitioner’s claims arise from DHS’s decision to commence removal proceedings. See 9 ECF No. 4 at 2. The Court disagrees. 10 Section 1252(g) should be read “narrowly” as to apply “only to three discrete actions 11 that the Attorney General may take: her ‘decision or action’ to ‘commence proceedings, 12 adjudicate cases, or execute removal orders.’” Ibarra-Perez v. United States, No. 24-631, 13 2025 WL 2461663, at *6 (9th Cir. Aug. 27, 2025) (quoting Reno v. American-Arab Anti- 14 Discrimination Committee, 525 U.S. 471, 482, 487 (1999)). Section 1252(g) “does not 15 prohibit challenges to unlawful practices merely because they are in some fashion 16 connected to removal orders.” Id. at *7. Section 1252(g) does not bar due process claims. 17 Walters v. Reno, 145 F.3d 1032, 1052–53 (9th Cir. 1998) (finding that the petitioners’ 18 objective was not to review the merits of their proceeding, but rather “to enforce their 19 constitutional rights to due process in the context of those proceedings”). 20 Here, Petitioner does not challenge the decision to commence removal proceedings 21 or any act to adjudicate or execute a removal order. Rather, Petitioner is challenging his 22 re-detention without notice or justification. See ECF No. 1 at 7–8. Petitioner is enforcing 23 his “constitutional rights to due process in the context of the removal proceedings—not 24 the legitimacy of the removal proceedings or any removal order.” Garcia v. Noem, No. 25 25-CV-2180-DMS-MMP, 2025 WL 2549431, at *4 (S.D. Cal. Sept. 3, 2025); see also 26 Noori v. LaRose, 807 F. Supp. 3d 1146, 1160 (S.D. Cal. 2025). Therefore, § 1252(g) 27 does not strip the Court of jurisdiction. 28 1 II. Due Process 2 Petitioner argues that the summary revocation of his release from detention without 3 notice or a hearing violates the Due Process Clause. See ECF No. 1 at 3–7. Respondents 4 argue that Petitioner’s parole has expired and that he is subject to the mandatory 5 detention provisions of § 1225(b)(2). See ECF No. 4 at 3–5. The Court concludes that 6 Petitioner’s current detention violates the Due Process Clause. 7 The Fifth Amendment guarantees that “[n]o person shall be . . . deprived of life, 8 liberty, or property, without due process of law.” U.S. Const. amend. V. “[T]he Due 9 Process Clause applies to all ‘persons’ within the United States, including aliens, whether 10 their presence here is lawful, unlawful, temporary, or permanent.” Zadvydas v. Davis, 11 533 U.S. 678, 693 (9th Cir. 2001). “[I]t is well established that the Fifth Amendment 12 entitles aliens to due process of law in deportation proceedings.” Reno v. Flores, 507 13 U.S. 292, 306 (1993). The Due Process Clause generally “requires some kind of a 14 hearing before the State deprives a person of liberty or property.” Zinermon v. Burch, 15 494 U.S. 113, 127 (1990). “Even individuals who face significant constraints on their 16 liberty or over whose liberty the government wields significant discretion retain a 17 protected interest in their liberty.” Pinchi v. Noem, 792 F. Supp. 3d 1025, 1032 (N.D. 18 Cal. 2025) (citations omitted). Although the initial decision to detain or release an 19 individual may be within the government’s discretion, “the government’s decision to 20 release an individual from custody creates ‘an implicit promise,’ upon which that 21 individual may rely, that their liberty ‘will be revoked only if [they] fail[] to live up to the 22 . . . conditions [of release].’” Id. (quoting Morrissey v. Brewer, 408 U.S. 471, 482 23 (1972)). “Thus, even when ICE has the initial discretion to detain or release a noncitizen 24 pending removal proceedings, after that individual is released from custody she has a 25 protected liberty interest in remaining out of custody.” Pinchi, 792 F. Supp. 3d at 1032 26 (citing Romero v. Kaiser, 2022 WL 1443250, at *2 (N.D. Cal. May 6, 2022)). 27 Respondents contend that as an “applicant for admission” under 8 U.S.C. § 1225 28 Petitioner is subject to mandatory detention and therefore his alleged constitutional 1 violations fail. See ECF No. 4 at 5–6. The Court disagrees. Petitioner has been granted 2 humanitarian parole. See ECF No. 1 at 2. Petitioner is not a newly arrived noncitizen 3 seeking admission at the border, as Petitioner has been in the United States since 2023. See 4 id. Since his parole, Petitioner has complied with the law and conditions of his parole. See 5 id. at 3. Petitioner is thus not an “applicant for admission” at the border and has a protected 6 liberty interest in remaining out of custody. See, e.g., Pinchi, 2025 WL 2084921, at *4 7 (“[Petitioner’s] release from ICE custody after her initial apprehension reflected a 8 determination by the government that she was neither a flight risk nor a danger to the 9 community, and [Petitioner] has a strong interest in remaining at liberty unless she no 10 longer meets those criteria.”); Noori, 2025 WL 2800149, at *10 (“Petitioner is not an 11 ‘arriving’ noncitizen but one that has [been] present in our country for over a year. This 12 substantial amount of time indicates he is afforded the Fifth Amendment’s guaranteed due 13 process before removal.”); Matute v. Wofford, No. 25-cv-1206-KES-SKO (HC), 2025 WL 14 2817795, at *5 (E.D. Cal. Oct. 3, 2025) (finding petitioner had a protected liberty interest 15 in his release). 16 As Petitioner has a protected liberty interest, the Due Process Clause requires 17 procedural protections before he can be deprived of that interest.1 See Mathews v. 18 Eldridge, 424 U.S. 319, 335 (1976). To determine which procedures are constitutionally 19 sufficient to satisfy the Due Process Clause, the Court must apply the Mathews factors. 20 See Mathews, 424 U.S. at 335. Courts must consider: 21 (1) “the private interest that will be affected by the official action”; (2) “the risk of an erroneous deprivation of such interest 22 through the procedures used, and the probable value, if any, of 23 additional or substitute procedural safeguards”; and (3) “the 24 1 Contrary to Respondents’ arguments otherwise, see ECF No. 4 at 3–4, courts have repeatedly held that 25 liberty interests do not expire when parole does. See Totskii v. LaRose, No. 26-CV-1053-JES-JLB, 2026 WL 905331, at *2 (S.D. Cal. Apr. 2, 2026); Ramirez Tesara v. Wamsley, 800 F. Supp. 3d 1130, 1136 26 (W.D. Wash. 2025); Rodriguez Cabrera v. Mattos, 808 F. Supp. 3d 1159, 1179 (D. Nev. 2025); Omer G. G. v. Kaiser, No. 1:25-CV-01471-KES-SAB (HC), 2025 WL 3254999, at *5 (E.D. Cal. Nov. 22, 27 2025) (“[P]etitioner's liberty interest did not expire along with his parole.”). 28 1 Government’s interest including the function involved and the fiscal and administrative burdens that the additional or substitute 2 procedural requirement would entail.” 3 Id. 4 The Court finds that all three factors support a determination that the 5 Government’s re-detention of Petitioner without notification, reasoning, or an 6 opportunity to be heard, denied Petitioner of his due process rights. First, as discussed 7 above, Petitioner has a significant liberty interest in remaining out of custody pursuant to 8 his release in 2023. See ECF No. 1 at 2. “Freedom from imprisonment—from 9 government custody, detention, or other forms of physical restraint—lies at the heart of 10 the liberty [the Due Process Clause] protects.” Zadvydas, 533 U.S. at 690; see also 11 Morrissey, 408 U.S. 471 at 482 (“Subject to the conditions of his parole, he can be 12 gainfully employed and is free to be with family and friends and to form the other 13 enduring attachments of normal life.”). 14 Second, the risk of an erroneous deprivation of such interest is high as 15 Respondents revoked Petitioner’s release from custody without providing Petitioner with 16 notification, reasoning, or a hearing. See ECF No. 1 at 2. Since the government’s initial 17 determination in 2023 that Petitioner should be released because he posed no danger to 18 the community and was not a flight risk, there is no evidence that these findings have 19 changed. See Saravia v. Sessions, 280 F. Supp. 3d 1168, 1176 (N.D. Cal. 2017) 20 (“Release reflects a determination by the government that the noncitizen is not a danger 21 to the community or a flight risk.”). Indeed, after his release from custody, Petitioner has 22 apparently complied with all conditions of release. See ECF No. 1 at 7. “Once a 23 noncitizen has been released, the law prohibits federal agents from rearresting him 24 merely because he is subject to removal proceedings. Rather, the federal agents must be 25 able to present evidence of materially changed circumstances—namely, evidence that the 26 noncitizen is in fact dangerous or has become a flight risk[.]” Saravia, 280 F. Supp. 3d at 27 1176. “Where as here, ‘the petitioner has not received any bond or custody hearing,’ ‘the 28 1 [Petitioner] has had an opportunity to determine whether there is any valid basis for [his] 2 detention.” Pinchi, 792 F. Supp. 3d at 1035 (quoting Singh v. Andrews, 803 F. Supp. 3d 3 1035, 1047 (E.D. Cal. 2025)) (cleaned up). 4 Third, the Government’s interest in detaining Petitioner without notice, reasoning, 5 and a hearing is “low.” See Alvarenga Matute, 807 F. Supp. 3d at 1130; Pinchi, 792 F. 6 Supp. 3d at 1036; Ortega v. Bonnar, 415 F. Supp. 3d 963, 970 (N.D. Cal. 2019) (“If the 7 government wishes to re-arrest [Petitioner] at any point, it has the power to take steps 8 toward doing so; but its interest in doing so without a hearing is low.”). 9 Therefore, because Respondents detained Petitioner by revoking his release in 10 violation of the Due Process Clause, his detention is unlawful. See, e.g., Monroy 11 Martinez v. Lyons, 2026 WL 1047937, at * 5 (S.D. Cal. Apr. 17, 2026) (granting a writ of 12 habeas corpus on due process grounds where the petitioner’s release on bond was 13 revoked); Navarro Sanchez v. LaRose, 2025 WL 2770629, at *5 (S.D. Cal. Sept. 26, 14 2025) (granting a writ of habeas corpus releasing petitioner from custody to the 15 conditions of her preexisting parole on due process grounds). 16 CONCLUSION 17 Based on the foregoing, the Court GRANTS IN PART the Petition for Writ of 18 Habeas Corpus (ECF No. 1), and ORDERS Respondents to immediately release 19 Petitioner from custody subject to the conditions of his preexisting release. The Court 20 ORDERS, prior to any re-detention of Petitioner, that Petitioner is entitled to notice of 21 the reasons for revocation of his release on bond and a hearing before a neutral decision 22 maker to determine whether detention is warranted. The government shall bear the 23 burden of establishing, by clear and convincing evidence, that Petitioner poses a danger 24 to the community or a risk of flight. See, e.g., Pinchi, 792 F. Supp. 3d at 1038. The 25 Parties are ORDERED to file a Joint Status Report by September 11, 2026, confirming 26 that Petitioner has been released. 27 IT IS SO ORDERED. 28 1 Dated: September 2, 2026 csi 4 PU is 5 Jill A. Otake ai Ss United States District Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28