Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JEAN JONY LOCHARD, Case No.: 26-CV-4817 JAO (DDL)

12 Petitioner, ORDER GRANTING WRIT OF 13 v. HABEAS CORPUS 14 CHRISTOPHER LAROSE, et al., (ECF No. 1) 15 Respondents. 16 17 18 Before the Court is Jean Jony Lochard’s Petition for Writ of Habeas Corpus 19 pursuant to 28 U.S.C. § 2241 (ECF No. 1). Also before the Court is Respondents’ 20 Response to the Petition (ECF No. 4) and Petitioner’s Reply (ECF No. 5). 21 For the reasons set forth below, the Court GRANTS the Petition on due process 22 grounds. 23 BACKGROUND 24 Petitioner is a native and citizen of Haiti who entered the United States on or about 25 June 12, 2021, and was apprehended by immigration authorities that same day. ECF No. 26 1 ¶¶ 2, 4. After approximately three days in custody, DHS released Petitioner, allowing 27 him to remain at liberty in the country. See id. ¶ 5. The precise form of his release is 28 somewhat unclear, but DHS instructed Petitioner to report to his local ICE office within 1 60 days or face removal. See id. ¶ 30; ECF No. 1-2 at 3. Thereafter, he remained out of 2 custody and interacted with immigration authorities as he applied for Temporary 3 Protected Status (“TPS”). ECF No. 1 ¶¶ 6, 30–32. As part of his TPS application, 4 USCIS required Petitioner to appear for a biometrics appointment, and he did so. See id. 5 ¶ 33. Petitioner also obtained work authorization valid through April 2030. See id. ¶ 34. 6 Nevertheless, on August 22, 2026, ICE officers took Petitioner into immigration 7 custody without prior notice or opportunity to be heard and identified no changed 8 circumstances that would justify the revocation of his release. See id. ¶¶ 8–10. DHS then 9 commenced removal proceedings against Defendant. See id. ¶ 8. 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 13 of his confinement pursuant to 28 U.S.C. § 2241. See 28 U.S.C. § 2241(a). The sole 14 judicial body able to review challenges to final orders of deportation, exclusion, or 15 removal is the court of appeals. See generally 8 U.S.C. § 1252; see also Alvarez–Barajas 16 v. Gonzales, 418 F.3d 1050, 1052 (9th Cir. 2005) (citing REAL ID Act, Pub. L. No. 109- 17 13, 119 Stat. 231, § 106(a)). However, for claims challenging ancillary or collateral 18 issues arising independently from the removal process—for example, a claim of 19 indefinite detention—federal habeas corpus jurisdiction remains in the district court. 20 Nadarajah v. Gonzales, 443 F.3d 1069, 1076 (9th Cir. 2006), abrogated on other 21 grounds by Jennings v. Rodriguez, 583 U.S. 281 (2018); Alvarez v. Sessions, 338 F. 22 Supp. 3d 1042, 1048–49 (N.D. Cal. 2018) (citations omitted). 23 DISCUSSION 24 Petitioner argues that his re-detention without notice or a pre-deprivation hearing 25 violates due process. See ECF No. 1 ¶¶ 58–63. Although Respondents acknowledge that 26 in light of Rodriguez Vazquez v. Bostock, 183 F.4th 1160 (9th Cir. 2026), Petitioner is 27 subject to detention under 8 U.S.C. § 1226(a) rather than mandatory detention under § 28 1225(a), they argue that the Court should order a bond hearing without reaching 1 Petitioner’s due process argument. See ECF No. 4 at 2 n.1. The Court, however, 2 concludes that Petitioner’s re-detention without notice violates due process and that only 3 immediate release affords relief because Petitioner is entitled to process before the 4 revocation of his prior release. 5 The Fifth Amendment guarantees that “[n]o person shall be . . . deprived of life, 6 liberty, or property, without due process of law.” U.S. Const. amend. V. “[T]he Due 7 Process Clause applies to all ‘persons’ within the United States, including aliens, whether 8 their presence here is lawful, unlawful, temporary, or permanent.” Zadvydas v. Davis, 9 533 U.S. 678, 693 (9th Cir. 2001). “[I]t is well established that the Fifth Amendment 10 entitles aliens to due process of law in deportation proceedings.” Reno v. Flores, 507 11 U.S. 292, 306 (1993). The Due Process Clause generally “requires some kind of a 12 hearing before the State deprives a person of liberty or property.” Zinermon v. Burch, 13 494 U.S. 113, 127 (1990). “Even individuals who face significant constraints on their 14 liberty or over whose liberty the government wields significant discretion retain a 15 protected interest in their liberty.” Pinchi v. Noem, 792 F. Supp. 3d 1025, 1032 (N.D. 16 Cal. 2025) (citations omitted). Although the initial decision to detain or release an 17 individual may be within the government’s discretion, “the government’s decision to 18 release an individual from custody creates ‘an implicit promise,’ upon which that 19 individual may rely, that their liberty ‘will be revoked only if [they] fail[] to live up to the 20 . . . conditions [of release].’” Id. (quoting Morrissey v. Brewer, 408 U.S. 471, 482 21 (1972)). “Thus, even when ICE has the initial discretion to detain or release a noncitizen 22 pending removal proceedings, after that individual is released from custody she has a 23 protected liberty interest in remaining out of custody.” Pinchi, 792 F. Supp. 3d at 1032 24 (citing Romero v. Kaiser, 2022 WL 1443250, at *2 (N.D. Cal. May 6, 2022)). 25 Petitioner has been out of custody since 2021, when the government implicitly 26 determined he was not a danger to the community or a flight risk and released him from 27 his initial detention upon apprehension. While the exact nature of his release is 28 ambiguous, there was some form of supervision as he was ordered to report to his local 1 ICE office within 60 days and was then allowed to remain at liberty for more than five 2 years. Further, there is no suggestion that Petitioner violated any terms of his release in 3 the years he has been out of detention. See generally ECF No. 4. Petitioner thus has a 4 protected liberty interest continuing to remain out of custody. See, e.g., Pinchi, 792 F. 5 Supp. 3d at 1034 (“[The petitioner’s] release from ICE custody after her initial 6 apprehension reflected a determination by the government that she was neither a flight 7 risk nor a danger to the community, and [the petitioner] has a strong interest in remaining 8 at liberty unless she no longer meets those criteria.”); Noori v. LaRose, 807 F. Supp. 3d 9 1146, 1164 (“Petitioner is not an ‘arriving’ noncitizen but one that has [been] present in 10 our country for over a year. This substantial amount of time indicates he is afforded the 11 Fifth Amendment’s guaranteed due process before removal.”); Alvarenga Matute v. 12 Wofford, 807 F. Supp. 3d 1120, 1129 (E.D. Cal. 2025) (finding the petitioner had a 13 protected liberty interest in his release). 14 As Petitioner has a protected liberty interest, the Due Process Clause requires 15 procedural protections before he can be deprived of that interest. See Mathews v. 16 Eldridge, 424 U.S. 319, 335 (1976). To determine which procedures are constitutionally 17 sufficient to satisfy the Due Process Clause, the Court must apply the Mathews factors. 18 See Mathews, 424 U.S. at 335. Courts must consider: 19 (1) “the private interest that will be affected by the official action”; (2) “the risk of an erroneous deprivation of such interest 20 through the procedures used, and the probable value, if any, of 21 additional or substitute procedural safeguards”; and (3) “the Government’s interest including the function involved and the 22 fiscal and administrative burdens that the additional or substitute 23 procedural requirement would entail.” 24 Id. 25 The Court finds that all three factors support a determination that the 26 Government’s re-detention of Petitioner without notification, reasoning, or an 27 opportunity to be heard, denied Petitioner of his due process rights. First, as discussed 28 above, Petitioner has a significant liberty interest in remaining out of custody pursuant to 1 his release in 2021. “Freedom from imprisonment—from government custody, 2 detention, or other forms of physical restraint—lies at the heart of the liberty [the Due 3 Process Clause] protects.” Zadvydas, 533 U.S. at 690; see also Morrissey, 408 U.S. 471 4 at 482 (“Subject to the conditions of his parole, he can be gainfully employed and is free 5 to be with family and friends and to form the other enduring attachments of normal 6 life.”). 7 Second, the risk of an erroneous deprivation of such interest is high as 8 Respondents revoked Petitioner’s release from custody without providing Petitioner with 9 notification, reasoning, or a hearing. Since the government’s initial determination in 10 2021 that Petitioner should be released into the country, there is no evidence that these 11 findings have changed. See Saravia v. Sessions, 280 F. Supp. 3d 1168, 1176 (N.D. Cal. 12 2017) (“Release reflects a determination by the government that the noncitizen is not a 13 danger to the community or a flight risk.”). “Once a noncitizen has been released, the 14 law prohibits federal agents from rearresting him merely because he is subject to removal 15 proceedings. Rather, the federal agents must be able to present evidence of materially 16 changed circumstances—namely, evidence that the noncitizen is in fact dangerous or has 17 become a flight risk[.]” Saravia, 280 F. Supp. 3d at 1176. “Where as here, ‘the 18 petitioner has not received any bond or custody hearing,’ ‘the risk of an erroneous 19 deprivation of liberty is high’ because neither the government nor [Petitioner] has had an 20 opportunity to determine whether there is any valid basis for [her] detention.” Pinchi, 21 792 F. Supp. 3d at 1035 (quoting Singh v. Andrews, 803 F. Supp. 3d 1035, 1047 (E.D. 22 Cal. 2025)) (cleaned up). 23 Third, the Government’s interest in detaining Petitioner without notice, reasoning, 24 and a hearing is “low.” See Alvarenga Matute, 807 F. Supp. 3d at 1130; Pinchi, 792 F. 25 Supp. 3d at 1036; Ortega v. Bonnar, 415 F. Supp. 3d 963, 970 (N.D. Cal. 2019) (“If the 26 government wishes to re-arrest [Petitioner] at any point, it has the power to take steps 27 toward doing so; but its interest in doing so without a hearing is low.”). 28 l Therefore, because Respondents detained Petitioner by revoking his release in 2 || violation of the Due Process Clause, his detention is unlawful. See, e.g., Monroy 3 || Martinez v. Lyons, 2026 WL 1047937, at * 5 (S.D. Cal. Apr. 17, 2026) (granting a writ of 4 || habeas corpus on due process grounds where the petitioner’s release on bond was 5 revoked); Navarro Sanchez v. LaRose, 2025 WL 2770629, at *5 (S.D. Cal. Sept. 26, 6 || 2025) (granting a writ of habeas corpus releasing petitioner from custody to the 7 || conditions of her preexisting parole on due process grounds). 8 CONCLUSION 9 Based on the foregoing, the Court GRANTS the Petition for Writ of Habeas 10 || Corpus (ECF No. 1), and ORDERS Respondents to immediately release Petitioner from 11 || custody subject to the conditions of his preexisting release. The Court ORDERS, prior 12 || to any re-detention of Petitioner, that Petitioner is entitled to notice of the reasons for 13 ||revocation of his release and a hearing before a neutral decision maker to determine 14 || whether detention is warranted. The government shall bear the burden of establishing, by 15 and convincing evidence, that Petitioner poses a danger to the community or a risk 16 flight. See, e.g., Pinchi, 792 F. Supp. 3d at 1038. The Parties are ORDERED to file a 17 || Joint Status Report by September 17, 2026, confirming that Petitioner has been released.! 18 IT IS SO ORDERED. 19 Dated: September 4, 2026 20 <a Gi Py, * U7” 22 7 23 % Jill A. Otake 2 a S United States District Judge 24 Sy, aaa Se 25 26 ' Petitioner requested attorney’s fees, related expenses, and costs pursuant to the Equal 27 || Access to Justice Act (“EAJA”), 28 U.S.C. § 2412. See ECF No. | at 14. Petitioner’s 2g counsel may submit an appropriate EAJA fee application within 30 days of the issuance of this Order. See 28 U.S.C. § 2412(d)(1)(B).