Opinion

1 UNITED STATES DISTRICT COURT 2 SOUTHERN DISTRICT OF CALIFORNIA 3

4 ROSE MIRTHA FRANCOIS, Case No.: 3:26-cv-04667-LEK-GC 5 Plaintiff/Petitioner, 6 ORDER GRANTING IN PART AND v. DENYING IN PART VERIFIED 7 PETITION FOR WRITS OF 8 CHRISTOPHER LAROSE, Warden of HABEAS CORPUS AND the Otay Mesa Detention Center; IMMEDIATE RELEASE FROM 9 GREGORY ARCHAMBEAULT, ICE CUSTODY AND COMPLAINT 10 Director of the San Diego Field Office, FOR DECLARATORY AND United States Immigration and Customs INJUNCTIVE RELIEF 11 Enforcement; MARKWAYNE MULLIN, 12 Secretary, United States Department of Homeland Security; TODD BLANCHE, 13 Attorney General, United States 14 Department of Justice; DAVID VENTURELLA, Acting Director of the 15 United States Immigration and Customs 16 Enforcement; and DOES 1-5, Defendants/Respondents. 17 19 Before this Court is Plaintiff/Petitioner Rose Mirtha Francois’s 20 (“Petitioner”) Verified Petition for Writs of Habeas Corpus and Immediate Release from 21 ICE Custody and Complaint for Declaratory and Injunctive Relief (“Petition”), filed on 22 August 15, 2026. [Dkt. no. 1.] The defendants/respondents, identified in the Petition as 23 Christopher LaRose, Warden of the Otay Mesa Detention Center; Gregory Archambeault, 24 Director of the San Diego Field Office, United States Immigration and Customs 25 Enforcement (“ICE”); Markwayne Mullin, Secretary, United States Department of 26 Homeland Security (“DHS”); Todd Blanche, Attorney General, United States 27 1 Department of Justice; and David Venturella, Acting Director of ICE (collectively 2 “Respondents”), filed a response to the Petition (“Response”) on August 24, 2026. [Dkt. 3 no. 5.] Petitioner filed a traverse on August 27, 2026. [Dkt. no. 6.] 4 BACKGROUND 5 Petitioner, a citizen and native of Haiti, entered the United States on 6 January 14, 2022. Two days later, Petitioner was paroled into the United States on order 7 of recognizance. See Petition at ¶¶ 19-20; see also Petition, Exh. 1 (pg. 1 of DHS Notice 8 to Appear, Form I-862, dated 1/16/22 (“Form I-862”));1 id., Exh. 2 (DHS Notice of 9 Custody Determination, Form I-286, dated 1/16/22 (“Form I-286)).2 Petitioner is a single 10 mother and has two minor daughters. She asserts that she has no criminal history. 11 [Petition at ¶ 10.] On August 6, 2026, ICE officers detained Petitioner while she was 12 driving to work. See id. at ¶¶ 10, 23. Petitioner asserts that she was provided no notice 13 explaining why she was being detained and that the ICE officers did not present a warrant 14 to her. See id. at ¶¶ 24-25. Prior to her August 6, 2026 detention, Petitioner attended all 15 of her regularly scheduled immigration appointments with ICE and the United States 16 Citizenship and Immigration Services. See id. at ¶ 22. As of the filing of the Petition, 17 Petitioner was detained at the Otay Mesa Detention Center in Otay Mesa, California. See 18 id. at ¶ 31. Petitioner’s primary argument is that her re-detention is unlawful, in that it 19 violates: her due process rights, [id. at pgs. 19-22]; and the Immigration and Nationality 20 21 22 23 1 The exhibits attached to the Petition are not labeled, although the Petition refers to Exhibits 1 through 5. See, e.g., Petition at ¶ 19 (referring to Exhibit 1); id. at ¶ 20 24 (referring to Exhibits 2 & 3); id. at ¶ 23 (referring to Exhibit 4); id. at ¶ 28 (referring to 25 Exhibit 5); id. at ¶ 32 (referring to Exhibit 6). This Court, having reviewed the Petition and its exhibits, refers to the document at PageID.31 of the Petition as Exhibit 1. 26 27 2 The document at PageID.32 of the Petition is referred to as Exhibit 2. See supra Footnote 1. 28 1 Act (“INA”), specifically Title 8 United States Code Section 1226(a); see id. at pgs. 23- 2 24. Petitioner alleges she is entitled to, inter alia, immediate release. See id. at pg. 26. 3 Respondents acknowledge that “[o]n July 30, 2026, the Ninth Circuit [Court 4 of Appeals] held and clarified that unadmitted aliens present in the interior of the United 5 States are subject to 8 U.S.C. § 1226 and not subject to 8 U.S.C. § 1225.” Response at 1; 6 see also Rodriguez Vazquez v. Bostock, 183 F.4th 1160, 1165 (9th Cir. 2026) (holding 7 that noncitizens “present without admission who are apprehended in the interior of the 8 United States are subject to the detention regime of § 1226, not § 1225(b)(2)(A)”). 9 Respondents therefore admit that “Petitioner is subject to detention under 8 U.S.C. 10 § 1226(a).” [Response at 1.] Respondents also “acknowledge[] that Petitioner was 11 previously released from immigration custody on conditional parole issued under 8 12 U.S.C. § 1226(a).” [Id. at 1-2.] While “Respondents do not oppose an order from this 13 Court directing a bond hearing be held pursuant to 8 U.S.C. § 1226(a),” [id.,] they also do 14 not expressly oppose Petitioner’s request for immediate release. 15 DISCUSSION 16 There is no dispute that the discretionary detention procedures of 17 Section 1226(a) govern Petitioner’s detention. See Response at 1-2. Accordingly, this 18 Court turns to Petitioner’s argument that she is entitled to immediate release. 19 While Respondents request that this Court decline to address, inter alia, 20 Petitioner’s due process arguments, see id. at 2 n.1, they do not request that this Court 21 deny Petitioner’s request for immediate release. This Court construes Respondents’ non- 22 opposition to Petitioner’s request for immediate release as a concession that Petitioner’s 23 re-detention violates her due process rights. 24 In Noori v. LaRose, 807 F. Supp. 3d 1146 (S.D. Cal. 2025), this district 25 court ruled that the respondents violated the petitioner’s Fifth Amendment due process 26 rights when the respondents revoked the petitioner’s parole by sending a mass, generic 27 notification one morning and arresting the petitioner later that day at his immigration 28 1 hearing. Id. at 1155, 1166. This district court concluded that the petitioner had “a 2 protectable expectation of his due process rights in his removal proceedings and the fair 3 procedures this country guarantees. . . . Particularly, he was entitled to both notification 4 of revocation and the reasoning for revocation, if not also an opportunity to be heard and 5 contest the determination.” Id. at 1165. The district court ordered the petitioner’s 6 immediate release. Id. at 1154.3 7 In the instant action, Petitioner received even less due process than the 8 petitioner in Noori. Petitioner received no notification or individualized reason as to why 9 her release on her own recognizance was being revoked before she was summarily 10 detained on August 6, 2026. See Petition at ¶ 24. Nor have Respondents explained, even 11 after they filed the Response, what circumstances have changed to warrant Petitioner’s 12 re-detention. Providing Petitioner a bond hearing would not remedy the Fifth Amendment 13 violation she has already experienced. Only release from detention can accomplish that 14 now.4 15 Petitioner has also requested that this Court award her attorney’s fees and 16 costs. See Petition at pg. 27. This Court will consider an application requesting 17 reasonable attorney’s fees and costs that is filed within thirty days of the entry of 18 judgment. This Court, therefore, denies Petitioner’s request for attorney’s fees and costs 19 without prejudice. 20 21 22 3 The district court had previously issued a truncated order ordering the petitioner’s 23 immediate release. See Noori, 807 F. Supp. 3d at 1154. The 807 F. Supp. 3d 1146 order was issued to “provide[] a fuller legal analysis and legal basis for the September 26, 2025 24 Order.” Id. 25 4 In light of this Court’s determination that Petitioner is entitled to immediate 26 release, this Court need not address Petitioner’s Fourth Amendment claim, [Petition at 27 pgs. 22-23,] her warrantless arrest claim under the INA, [id. at pgs. 24-25,] or her regulatory claims, [id. at pgs. 25-26]. 28 l CONCLUSION 2 For the foregoing reasons, Plaintiff/Petitioner Rose Mirtha Francois’s 3 || Verified Petition for Writs of Habeas Corpus and Immediate Release from ICE Custody 4 ||and Complaint for Declaratory and Injunctive Relief, filed August 15, 2026, is 5 || GRANTED IN PART insofar as Respondents are ORDERED to immediately release 6 || Petitioner from custody under the same conditions that existed immediately prior to 7 || Petitioner’s detention on August 6, 2026. Further, Respondents are ENJOINED AND 8 || RESTRAINED from re-detaining Petitioner unless Respondents demonstrate, by clear 9 convincing evidence at a pre-deprivation hearing before a neutral decisionmaker, that 10 || Petitioner presents a flight risk or danger to the community such that her physical custody 11 legally justified. Further, the Petition is DENIED WITHOUT PREJUDICE as to 12 || Petitioner’s request for attorney’s fees and costs. 13 The parties are ORDERED to file a joint status report by September 9, 14 2026, confirming that Petitioner has been released. 15 IT IS SO ORDERED. 16 DATED AT HONOLULU, HAWAIL, September 2, 2026. 17 ee, % 18 oy) /s! Leslie E. Kobayashi 19 Leslie E. Kobayashi □□ ad Senior U.S. District Judge 21 22 ROSE MIRTHA FRANCOIS VS. GHRISTOPHER LAROSE, ETC., ET AL; 23 || CASE NO. 3:26-CV-04667-LEK-GC; ORDER GRANTING IN PART AND A DENYING IN PART VERIFIED PETITION FOR WRITS OF HABEAS CORPUS AND IMMEDIATE RELEASE FROM ICE CUSTODY AND COMPLAINT FOR 25 || DECLARATORY AND INJUNCTIVE RELIEF 26 27 28