Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MAYKOL VIDAL SILVA MALLMA, Case No.: 26-cv-5399 JAO (SBC)

12 Petitioner, ORDER GRANTING PETITION 13 v. FOR WRIT OF HABEAS CORPUS 14 JEREMY CASEY, et al., (ECF No. 1) 15 Respondents. 16 17 18 Before the Court is Maykol Vidal Silva Mallma’s (“Petitioner”) Petition for Writ 19 of Habeas Corpus pursuant to 28 U.S.C. § 2241. ECF No. 1. Also before the Court is 20 Respondents’ Return to the Petition. ECF No. 4. 21 For the following reasons, the Court GRANTS Petitioner’s Petition for Writ of 22 Habeas Corpus on due process grounds. 23 BACKGROUND 24 Petitioner is a Peruvian national who last entered the United States on or about 25 January 27, 2023. ECF No. 1 ¶ 1. Department of Homeland Security (“DHS”) detained 26 Petitioner, processed him, and eventually paroled him into the country in March 2023. 27 See ECF No. 1 ¶ 17; ECF No. 4 at 2 (acknowledging that Petitioner was previously 28 released from immigration custody and paroled into the country). After his release, 1 Petitioner applied for asylum and complied with the terms of his parole. See ECF No. 1 2 ¶¶ 18–19, 22. An Immigration Judge denied Petitioner’s asylum application, but 3 Petitioner appealed to the Board of Immigration Appeals. See id. ¶ 20. Respondents then 4 took Petitioner into custody without notice on August 13, 2026. See id. ¶ 21; ECF No. 4- 5 1 at 3. 6 LEGAL STANDARD 7 A federal prisoner challenging the execution of her sentence, rather than the 8 legality of the sentence itself, may file a petition for writ of habeas corpus in the district 9 of her confinement pursuant to 28 U.S.C. § 2241. See 28 U.S.C. § 2241(a). The sole 10 judicial body able to review challenges to final orders of deportation, exclusion, or 11 removal is the court of appeals. See generally 8 U.S.C. § 1252; see also Alvarez–Barajas 12 v. Gonzales, 418 F.3d 1050, 1052 (9th Cir. 2005) (citing REAL ID Act, Pub. L. No. 109- 13 13, 119 Stat. 231, § 106(a)). However, for claims challenging ancillary or collateral 14 issues arising independently from the removal process—for example, a claim of 15 indefinite detention—federal habeas corpus jurisdiction remains in the district court. 16 Nadarajah v. Gonzales, 443 F.3d 1069, 1076 (9th Cir. 2006), abrogated on other 17 grounds by Jennings v. Rodriguez, 583 U.S. 281 (2018); Alvarez v. Sessions, 338 F. 18 Supp. 3d 1042, 1048–49 (N.D. Cal. 2018) (citations omitted). 19 DISCUSSION 20 Petitioner argues that his re-detention without notice or a pre-deprivation hearing 21 violates due process. See ECF No. 1 ¶¶ 33–39. Although Respondents maintain that 22 Petitioner is subject to mandatory detention under 8 U.S.C. § 1225(b)(2), and assert that 23 Rodriguez Vazquez v. Bostock, 183 F.4th 1160 (9th Cir. 2026) is inapplicable to 24 Petitioner, they recognize that courts in this district have rejected those positions. See 25 ECF No. 4 at 2–3. They thus decline to oppose the Petition and defer to the Court on the 26 appropriate relief. See id. at 3. The Court concludes that Petitioner’s re-detention 27 without notice violates due process and that only immediate release affords relief because 28 Petitioner is entitled to process before the revocation of his prior release. 1 The Fifth Amendment guarantees that “[n]o person shall be . . . deprived of life, 2 liberty, or property, without due process of law.” U.S. Const. amend. V. “[T]he Due 3 Process Clause applies to all ‘persons’ within the United States, including aliens, whether 4 their presence here is lawful, unlawful, temporary, or permanent.” Zadvydas v. Davis, 5 533 U.S. 678, 693 (9th Cir. 2001). “[I]t is well established that the Fifth Amendment 6 entitles aliens to due process of law in deportation proceedings.” Reno v. Flores, 507 7 U.S. 292, 306 (1993). The Due Process Clause generally “requires some kind of a 8 hearing before the State deprives a person of liberty or property.” Zinermon v. Burch, 9 494 U.S. 113, 127 (1990). “Even individuals who face significant constraints on their 10 liberty or over whose liberty the government wields significant discretion retain a 11 protected interest in their liberty.” Pinchi v. Noem, 792 F. Supp. 3d 1025, 1032 (N.D. 12 Cal. 2025) (citations omitted). Although the initial decision to detain or release an 13 individual may be within the government’s discretion, “the government’s decision to 14 release an individual from custody creates ‘an implicit promise,’ upon which that 15 individual may rely, that their liberty ‘will be revoked only if [they] fail[] to live up to the 16 . . . conditions [of release].’” Id. (quoting Morrissey v. Brewer, 408 U.S. 471, 482 17 (1972)). “Thus, even when ICE has the initial discretion to detain or release a noncitizen 18 pending removal proceedings, after that individual is released from custody she has a 19 protected liberty interest in remaining out of custody.” Pinchi, 792 F. Supp. 3d at 1032 20 (citing Romero v. Kaiser, 2022 WL 1443250, at *2 (N.D. Cal. May 6, 2022)). 21 Petitioner has been out of custody since 2023, when the government implicitly 22 determined he was not a danger to the community or a flight risk and paroled him into the 23 country. After his parole, he was allowed to remain at liberty for nearly three years as he 24 pursued his asylum claims. Further, there is no suggestion that Petitioner violated any 25 terms of his release in the years he has been out of detention. See generally ECF No. 4. 26 Petitioner thus has a protected liberty interest continuing to remain out of custody. See, 27 e.g., Pinchi, 792 F. Supp. 3d at 1034 (“[The petitioner’s] release from ICE custody after 28 her initial apprehension reflected a determination by the government that she was neither 1 a flight risk nor a danger to the community, and [the petitioner] has a strong interest in 2 remaining at liberty unless she no longer meets those criteria.”); Noori v. LaRose, 807 F. 3 Supp. 3d 1146, 1164 (“Petitioner is not an ‘arriving’ noncitizen but one that has [been] 4 present in our country for over a year. This substantial amount of time indicates he is 5 afforded the Fifth Amendment’s guaranteed due process before removal.”); Alvarenga 6 Matute v. Wofford, 807 F. Supp. 3d 1120, 1129 (E.D. Cal. 2025) (finding the petitioner 7 had a protected liberty interest in his release). 8 As Petitioner has a protected liberty interest, the Due Process Clause requires 9 procedural protections before he can be deprived of that interest. See Mathews v. 10 Eldridge, 424 U.S. 319, 335 (1976). To determine which procedures are constitutionally 11 sufficient to satisfy the Due Process Clause, the Court must apply the Mathews factors. 12 See Mathews, 424 U.S. at 335. Courts must consider: 13 (1) “the private interest that will be affected by the official action”; (2) “the risk of an erroneous deprivation of such interest 14 through the procedures used, and the probable value, if any, of 15 additional or substitute procedural safeguards”; and (3) “the Government’s interest including the function involved and the 16 fiscal and administrative burdens that the additional or substitute 17 procedural requirement would entail.” 18 Id. 19 The Court finds that all three factors support the conclusion that the Government’s 20 re-detention of Petitioner without notification, reasoning, or an opportunity to be heard, 21 denied Petitioner of his due process rights. First, as discussed above, Petitioner has a 22 significant liberty interest in remaining out of custody pursuant to his release in 2023. 23 “Freedom from imprisonment—from government custody, detention, or other forms of 24 physical restraint—lies at the heart of the liberty [the Due Process Clause] protects.” 25 Zadvydas, 533 U.S. at 690; see also Morrissey, 408 U.S. 471 at 482 (“Subject to the 26 conditions of his parole, he can be gainfully employed and is free to be with family and 27 friends and to form the other enduring attachments of normal life.”). 28 1 Second, the risk of an erroneous deprivation of such interest is high as 2 Respondents revoked Petitioner’s release from custody without providing Petitioner with 3 notification, reasoning, or a hearing. Since the government’s initial determination in 4 2023 that Petitioner should be released into the country, there is no evidence that these 5 findings have changed. See Saravia v. Sessions, 280 F. Supp. 3d 1168, 1176 (N.D. Cal. 6 2017) (“Release reflects a determination by the government that the noncitizen is not a 7 danger to the community or a flight risk.”). “Once a noncitizen has been released, the 8 law prohibits federal agents from rearresting him merely because he is subject to removal 9 proceedings. Rather, the federal agents must be able to present evidence of materially 10 changed circumstances—namely, evidence that the noncitizen is in fact dangerous or has 11 become a flight risk[.]” Saravia, 280 F. Supp. 3d at 1176. “Where as here, ‘the 12 petitioner has not received any bond or custody hearing,’ ‘the risk of an erroneous 13 deprivation of liberty is high’ because neither the government nor [Petitioner] has had an 14 opportunity to determine whether there is any valid basis for [her] detention.” Pinchi, 15 792 F. Supp. 3d at 1035 (quoting Singh v. Andrews, 803 F. Supp. 3d 1035, 1047 (E.D. 16 Cal. 2025)) (cleaned up). 17 Third, the government’s interest in detaining Petitioner without notice, reasoning, 18 and a hearing is “low.” See Alvarenga Matute, 807 F. Supp. 3d at 1130; Pinchi, 792 F. 19 Supp. 3d at 1036; Ortega v. Bonnar, 415 F. Supp. 3d 963, 970 (N.D. Cal. 2019) (“If the 20 government wishes to re-arrest [Petitioner] at any point, it has the power to take steps 21 toward doing so; but its interest in doing so without a hearing is low.”). 22 Therefore, because Respondents detained Petitioner by revoking his release in 23 violation of the Due Process Clause, his detention is unlawful. See, e.g., Monroy 24 Martinez v. Lyons, 2026 WL 1047937, at * 5 (S.D. Cal. Apr. 17, 2026) (granting a writ of 25 habeas corpus on due process grounds where the petitioner’s release on bond was 26 revoked); Navarro Sanchez v. LaRose, 2025 WL 2770629, at *5 (S.D. Cal. Sept. 26, 27 2025) (granting a writ of habeas corpus releasing petitioner from custody to the 28 conditions of her preexisting parole on due process grounds). I CONCLUSION 2 Based on the foregoing, the Court GRANTS Petitioner’s Petition for Writ of 3 || Habeas Corpus (ECF No. 1) on due process grounds, and ORDERS Respondents to 4 ||immediately release Petitioner from custody subject to the conditions of his preexisting 5 || parole. ! 6 The Court ORDERS, prior to any re-detention of Petitioner, that Petitioner is 7 || entitled to notice of the reasons for revocation of his parole and a hearing before a neutral 8 decision maker to determine whether detention is warranted. The government shall bear 9 || the burden of establishing, by clear and convincing evidence, that Petitioner poses a 10 || danger to the community or a risk of flight. See, e.g., Matute, 807 F. Supp. 3d at 1133; 11 || Pinchi, 792 F. Supp. 3d at 1038; Doe v. Becerra, 787 F. Supp. 3d 1083, 1097 (E.D. Cal. 12 2025); Martinez Hernandez v. Andrews, 2025 WL 2495767, at *14 (E.D. Cal. Aug. 28, 13 2025); Isaev, v. LaRose, et al., 2026 WL 1162758, at *3 (S.D. Cal. Apr. 29, 2026). The 14 || Parties ae ORDERED to file a Joint Status Report by October 9, 2026, confirming that 15 || Petitioner has been released. As this concludes the litigation in this case, the Clerk of 16 Court SHALL CLOSE the file. 17 || IT IS SO ORDERED. 18 Dated: September 25, 2026 19 20 go wT E>. = Gaye 22 : 3 □ Jill A. Otake > "a United States District Judge 24 “Qa; ie > 25 || ——_—_—_—_____——_ 26 ' Petitioner requested attorney’s fees, related expenses, and costs, presumably pursuant to 27 Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412. See ECF No. 1 at 9g || 12. 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).