Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 KEIVIS LORETO PEREZ, Case No.: 26-CV-4811 JAO (MMP)

12 Petitioner, ORDER GRANTING WRIT OF 13 v. HABEAS CORPUS 14 MARKWAYNE MULLIN, et al., (ECF No. 1) 15 Respondents. 16 17 18 Before the Court is Petitioner Keivis Loreto Perez’s Petition for Writ of Habeas 19 Corpus pursuant to 28 U.S.C. § 2241 (ECF No. 1). Also before the Court is 20 Respondents’ Response to the Petition (ECF No. 4). 21 For the reasons set forth below, the Court GRANTS the Petition on due process 22 grounds. 23 BACKGROUND 24 Petitioner is a Venezuelan citizen who arrived in the United States on or about 25 May 8, 2022, and was released into the country on parole. See ECF No. 1 ¶¶ 1, 3. He 26 later submitted an asylum application, which remains pending, and obtained employment 27 authorization. See id. ¶¶ 3, 19. However, on August 10, 2026, Petitioner was driving to 28 work and was taken into immigration custody without notice. See id. ¶¶ 2, 48. 1 LEGAL STANDARD 2 A federal prisoner challenging the execution of his or her sentence, rather than the 3 legality of the sentence itself, may file a petition for writ of habeas corpus in the district 4 of his confinement pursuant to 28 U.S.C. § 2241. See 28 U.S.C. § 2241(a). The sole 5 judicial body able to review challenges to final orders of deportation, exclusion, or 6 removal is the court of appeals. See generally 8 U.S.C. § 1252; see also Alvarez–Barajas 7 v. Gonzales, 418 F.3d 1050, 1052 (9th Cir. 2005) (citing REAL ID Act, Pub. L. No. 109- 8 13, 119 Stat. 231, § 106(a)). However, for claims challenging ancillary or collateral 9 issues arising independently from the removal process—for example, a claim of 10 indefinite detention—federal habeas corpus jurisdiction remains in the district court. 11 Nadarajah v. Gonzales, 443 F.3d 1069, 1076 (9th Cir. 2006), abrogated on other 12 grounds by Jennings v. Rodriguez, 583 U.S. 281 (2018); Alvarez v. Sessions, 338 F. 13 Supp. 3d 1042, 1048–49 (N.D. Cal. 2018) (citations omitted). 14 DISCUSSION 15 Petitioner argues that his detention violates his right to due process because 16 Respondents took him into custody him without notice and without identifying any 17 changed circumstances that would justify his re-detention. See ECF No. 1 ¶¶ 30–48. 18 Respondents acknowledge that in light of Rodriguez Vazquez v. Bostock, 183 F.4th 1160 19 (9th Cir. 2026), Petitioner is subject to detention under 8 U.S.C. § 1226(a) rather than 20 mandatory detention under § 1225(a), and that Petitioner was previously released from 21 immigration custody on parole. See ECF No. 4 at 1. They thus do not oppose the 22 Petition. See id. at 2. 23 The Fifth Amendment guarantees that “[n]o person shall be . . . deprived of life, 24 liberty, or property, without due process of law.” U.S. Const. amend. V. “[T]he Due 25 Process Clause applies to all ‘persons’ within the United States, including aliens, whether 26 their presence here is lawful, unlawful, temporary, or permanent.” Zadvydas v. Davis, 27 533 U.S. 678, 693 (9th Cir. 2001). “[I]t is well established that the Fifth Amendment 28 entitles aliens to due process of law in deportation proceedings.” Reno v. Flores, 507 1 U.S. 292, 306 (1993). The Due Process Clause generally “requires some kind of a 2 hearing before the State deprives a person of liberty or property.” Zinermon v. Burch, 3 494 U.S. 113, 127 (1990). “Even individuals who face significant constraints on their 4 liberty or over whose liberty the government wields significant discretion retain a 5 protected interest in their liberty.” Pinchi v. Noem, 792 F. Supp. 3d 1025, 1032 (N.D. 6 Cal. 2025) (citations omitted). Although the initial decision to detain or release an 7 individual may be within the government’s discretion, “the government’s decision to 8 release an individual from custody creates ‘an implicit promise,’ upon which that 9 individual may rely, that their liberty ‘will be revoked only if [they] fail[] to live up to the 10 . . . conditions [of release].’” Id. (quoting Morrissey v. Brewer, 408 U.S. 471, 482 11 (1972)). “Thus, even when ICE has the initial discretion to detain or release a noncitizen 12 pending removal proceedings, after that individual is released from custody she has a 13 protected liberty interest in remaining out of custody.” Pinchi, 792 F. Supp. 3d at 1032 14 (citing Romero v. Kaiser, 2022 WL 1443250, at *2 (N.D. Cal. May 6, 2022)). 15 Petitioner has been out of custody since 2022, when the government implicitly 16 determined he was not a danger to the community or a flight risk and released him from 17 detention. There is no suggestion that Petitioner violated the terms of his release in the 18 years he has been out of detention. See generally ECF No. 4. Petitioner thus has a 19 protected liberty interest continuing to remain out of custody. See, e.g., Pinchi, 792 F. 20 Supp. 3d at 1034 (“[The petitioner’s] release from ICE custody after her initial 21 apprehension reflected a determination by the government that she was neither a flight 22 risk nor a danger to the community, and [the petitioner] has a strong interest in remaining 23 at liberty unless she no longer meets those criteria.”); Noori v. LaRose, 807 F. Supp. 3d 24 1146, 1164 (“Petitioner is not an ‘arriving’ noncitizen but one that has [been] present in 25 our country for over a year. This substantial amount of time indicates he is afforded the 26 Fifth Amendment’s guaranteed due process before removal.”); Alvarenga Matute v. 27 Wofford, 807 F. Supp. 3d 1120, 1129 (E.D. Cal. 2025) (finding the petitioner had a 28 protected liberty interest in his release). 1 As Petitioner has a protected liberty interest, the Due Process Clause requires 2 procedural protections before he can be deprived of that interest. See Mathews v. 3 Eldridge, 424 U.S. 319, 335 (1976). To determine which procedures are constitutionally 4 sufficient to satisfy the Due Process Clause, the Court must apply the Mathews factors. 5 See Mathews, 424 U.S. at 335. Courts must consider: 6 (1) “the private interest that will be affected by the official action”; (2) “the risk of an erroneous deprivation of such interest 7 through the procedures used, and the probable value, if any, of 8 additional or substitute procedural safeguards”; and (3) “the Government’s interest including the function involved and the 9 fiscal and administrative burdens that the additional or substitute 10 procedural requirement would entail.” 11 Id. 12 The Court finds that all three factors support a determination that the 13 Government’s re-detention of Petitioner without notification, reasoning, or an 14 opportunity to be heard, denied Petitioner of his due process rights. First, as discussed 15 above, Petitioner has a significant liberty interest in remaining out of custody pursuant to 16 his release on parole in 2022. “Freedom from imprisonment—from government custody, 17 detention, or other forms of physical restraint—lies at the heart of the liberty [the Due 18 Process Clause] protects.” Zadvydas, 533 U.S. at 690; see also Morrissey, 408 U.S. 471 19 at 482 (“Subject to the conditions of his parole, he can be gainfully employed and is free 20 to be with family and friends and to form the other enduring attachments of normal 21 life.”). 22 Second, the risk of an erroneous deprivation of such interest is high as 23 Respondents revoked Petitioner’s release from custody without providing Petitioner with 24 notification, reasoning, or a hearing. Since the government’s initial determination in 25 2022 that Petitioner should be released because he posed no danger to the community and 26 was not a flight risk, there is no evidence that these findings have changed. See Saravia 27 v. Sessions, 280 F. Supp. 3d 1168, 1176 (N.D. Cal. 2017) (“Release reflects a 28 determination by the government that the noncitizen is not a danger to the community or 1 a flight risk.”). Indeed, after his release from custody, Petitioner has apparently complied 2 with all conditions of release. “Once a noncitizen has been released, the law prohibits 3 federal agents from rearresting him merely because he is subject to removal proceedings. 4 Rather, the federal agents must be able to present evidence of materially changed 5 circumstances—namely, evidence that the noncitizen is in fact dangerous or has become 6 a flight risk[.]” Saravia, 280 F. Supp. 3d at 1176. “Where as here, ‘the petitioner has not 7 received any bond or custody hearing,’ ‘the risk of an erroneous deprivation of liberty is 8 high’ because neither the government nor [Petitioner] has had an opportunity to 9 determine whether there is any valid basis for [her] detention.” Pinchi, 792 F. Supp. 3d 10 at 1035 (quoting Singh v. Andrews, 803 F. Supp. 3d 1035, 1047 (E.D. Cal. 2025)) 11 (cleaned up). 12 Third, the Government’s interest in detaining Petitioner without notice, reasoning, 13 and a hearing is “low.” See Alvarenga Matute, 807 F. Supp. 3d at 1130; Pinchi, 792 F. 14 Supp. 3d at 1036; Ortega v. Bonnar, 415 F. Supp. 3d 963, 970 (N.D. Cal. 2019) (“If the 15 government wishes to re-arrest [Petitioner] at any point, it has the power to take steps 16 toward doing so; but its interest in doing so without a hearing is low.”). 17 Therefore, because Respondents detained Petitioner by revoking his release in 18 violation of the Due Process Clause, his detention is unlawful. See, e.g., Monroy 19 Martinez v. Lyons, 2026 WL 1047937, at * 5 (S.D. Cal. Apr. 17, 2026) (granting a writ of 20 habeas corpus on due process grounds where the petitioner’s release on bond was 21 revoked); Navarro Sanchez v. LaRose, 2025 WL 2770629, at *5 (S.D. Cal. Sept. 26, 22 2025) (granting a writ of habeas corpus releasing petitioner from custody to the 23 conditions of her preexisting parole on due process grounds). 24 CONCLUSION 25 Based on the foregoing, the Court GRANTS the Petition for Writ of Habeas 26 Corpus (ECF No. 1), and ORDERS Respondents to immediately release Petitioner from 27 custody subject to the conditions of his preexisting release. The Court ORDERS, prior 28 to any re-detention of Petitioner, that Petitioner is entitled to notice of the reasons for 1 || revocation of his release and a hearing before a neutral decision maker to determine 2 || whether detention is warranted. The government shall bear the burden of establishing, by 3 and convincing evidence, that Petitioner poses a danger to the community or a risk 4 flight. See, e.g., Pinchi, 792 F. Supp. 3d at 1038. The Parties are ORDERED to file a 5 || Joint Status Report by September 23, 2026, confirming that Petitioner has been released.! 6 IT IS SO ORDERED. 7 || Dated: September 9, 2026 8 <(eally; & sage V7 11 % Jill A. Otake 12 b> “" @ — United States District Judge 13 “ey ma 14 15 16 17 18 19 20 21 22 23 24 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. 1 at 18. Petitioner’s || 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).