(HC) Moreno Tovar v. Johnson et al

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United States District Court
	Eastern District of California
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
AXEL SANTIAGO MORENO TOVAR,
Petitioner,
v.
TODD BLANCHE, et al.,
Respondents.
Case No. 	1:26-cv-05066 (EJD)
ORDER DISMISSING FIRST
AMENDED PETITION FOR WRIT OF
HABEAS CORPUS
Re: Dkt. No. 12
Petitioner Axel Santiago Moreno Tovar is an immigration detainee currently in the custody
of U.S. Immigration and Customs Enforcement (“(ICE”). Before the Court is his Amended
Petition for Writ of Habeas Corpus (“FAP”) seeking his immediate release from custody (Dkt. No.
12 at 16–17) and Respondents’ Motion to Dismiss the FAP (Dkt. No. 16). For the reasons that
follow, the Court dismisses the FAP without prejudice.
I. 	BACKGROUND
Based on the parties’ submissions, the Court finds the following facts. Petitioner is a native
of Venezuela who entered the United States approximately eight years ago on a B-2 visitor visa
with an expiration of June 29, 2018. Dkt. No. 12 at 2. 4; Dkt. No. 15-2 at 4. Following the
expiration of his visa, Petitioner was granted temporary protected status (“TPS”) and applied for
asylum. Dkt. No. 12 at 4–5. Petitioner’s TPS was terminated on February 3, 2025, and neither
party has confirmed the present status of his asylum application. Id. at 4.
Sometime around the filing of his asylum application, Petitioner was arrested by
immigration authorities and briefly detained. Id. He was released by an Immigration Judge (“IJ”)
on a $5,000 bond on February 7, 2019 on the condition that he not be arrested in the future. Id.;
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Dkt. No. 15 at 1.
On April 21, 2026, Petitioner and his long-term partner got into a loud verbal argument,
prompting a neighbor to call the police. Dkt. No. 12 at 5. Though Petitioner’s partner maintained
that the fight was only a verbal disagreement, the police arrested Petitioner on charges of domestic
violence. Id. at 6. Petitioner was transferred to ICE custody by the police the following day. Id.
While Petitioner was detained, the State of Florida declined to prosecute the domestic assault case,
dismissing all charges on May 15, 2026. Id.
Following the dismissal, Petitioner, through his immigration counsel, filed a Motion for
Bond Determination with the Immigration Court. See Dkt. No. 15-5 at 2. The bond hearing was
held on June 9, 2026. See Dkt. No. 15-7 at 1. At the outset of the bond hearing, the Government
indicated that Petitioner was released by an IJ on bond on February 7, 2019, with one of the
conditions being that he not be arrested. Dkt. No. 15-6 at 1. Petitioner’s counsel also presented
argument, explaining that the arrest should not be held against Petitioner given that the criminal
case was ultimately dismissed, and that the circumstances surrounding the arrest indicated that
Petitioner did not engage in any violent conduct. Id. at 2–3. However, the IJ found that he “had no
choice,” but to deny bond given that Petitioner had been arrested, violating the bond condition that
he not be arrested. Id. at 3–4.
II. 	LEGAL STANDARD
The Constitution guarantees the availability of the writ of habeas corpus “to every
individual detained within the United States.” Hamdi v. Rumsfeld, 542 U.S. 507, 525 (2004)
(citing U.S. Const., art. I, § 9, cl. 2). “The essence of habeas corpus is an attack by a person in
custody upon the legality of that custody, and ... the traditional function of the writ is to secure
release from illegal custody.” Preiser v. Rodriguez, 411 U.S. 475, 484 (1973). A writ of habeas
corpus may be granted to a petitioner who demonstrates that he is in custody in violation of the
Constitution or federal law. 28 U.S.C. § 2241(c)(3). Historically, “the writ of habeas corpus has
served as a means of reviewing the legality of Executive detention, and it is in that context that its
protections have been strongest.” I.N.S. v. St. Cyr, 533 U.S. 289, 301 (2001). Accordingly, a
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district court’s habeas jurisdiction includes challenges to immigration detention. See Zadvydas v.
Davis, 533 U.S. 678, 687 (2001).
III. 	DISCUSSION
Though Petitioner appears to accept that his detention is correctly controlled by 8 U.S.C. §
1226(a) and that he received a bond hearing pursuant to that statute, he maintains that his
continued detention violates due process. Specifically, he argues that his continued detention is
unconstitutional because the IJ “did not require the government to prove by clear and convincing
evidence that Respondent posed a danger to the community or risk of failing to appear” at his
bond hearing. Dkt. No. 12 at 10–11. He further maintains that he was entitled to notice and a pre-
deprivation hearing prior to his re-detention, and the Government’s failure to provide pre-
deprivation process violates both his procedural and substantive due process rights. Id. at 12–16.
Respondents oppose relief, arguing that the FAP should be dismissed because (1) Petitioner must
exhaust his administrative remedy by appealing the IJ’s bond determination to the Board of
Immigration Appeals (“BIA”) before seeking habeas relief, and (2) the bond hearing satisfied due
process. Dkt. No. 16 at 3–6. The Court first addresses exhaustion before turning to the merits of
Petitioner’s due process claim.
A. 	Exhaustion
“On habeas review under § 2241, exhaustion is a prudential rather than jurisdictional
requirement.” Singh v. Holder, 638 F.3d 1196, 1203 n.3 (9th Cir. 2011). “Courts may require
prudential exhaustion if (1) agency expertise makes agency consideration necessary to generate a
proper record and reach a proper decision; (2) relaxation of the requirement would encourage the
deliberate bypass of the administrative scheme; and (3) administrative review is likely to allow the
agency to correct its own mistakes and to preclude the need for judicial review.” Puga v. Chertoff,
488 F.3d 812, 815 (9th Cir. 2007) (internal quotation marks omitted). Nevertheless, even if these
factors weigh in favor of requiring exhaustion, “there are a number of exceptions to the general
rule requiring exhaustion, covering situations such as where administrative remedies are
inadequate or not efficacious, pursuit of administrative remedies would be a futile gesture,
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irreparable injury will result, or the administrative proceedings would be void.” Laing v. Ashcroft,
370 F.3d 994, 1000 (9th Cir. 2004).
To the extent that Petitioner challenges the IJ’s finding that he had violated one of the
conditions of his prior release, the Puga factors weigh in favor of requiring Petitioner to exhaust
his administrative remedies. First, the BIA is the subject-matter expert for appeals of custody
redetermination and bond decisions. Accordingly, BIA consideration of the IJ’s decision is
necessary to generate a proper record and reach a proper decision. Second, permitting Petitioner to
bypass the administrative scheme that governs appeals from bond and custody decisions by
challenging this finding through habeas relief, see 8 C.F.R. § 1236.1(d), would likely encourage
deliberate bypassing of this scheme. Third, BIA review of a bond and custody redetermination
decision is likely to facilitate correction of any mistakes by the IJ and preclude the need for
judicial review.
However, an exception applies to Petitioner’s due process claim. Petitioner alleges that his
right to due process was violated because the IJ imposed the incorrect burden of proof at his bond
hearing, and that he was entitled to notice and pre-deprivation process prior to his re-detention.
See Dkt. No. 12 at 10–11, 13, 15. “Because this claim is not within the jurisdiction of the [Board
of Immigration Appeals], requiring administrative exhaustion would be futile.” Rufino Ligario
Hernandez v. Mark Wayne Mullin, et al., No. 5:26-CV-00585-JAK-ADS, 2026 WL 846037, at *8
(C.D. Cal. Mar. 24, 2026) (excusing prudential administrative exhaustion as futile); Yero v. U.S
Gen. Att’y, No. 1:26-CV-04312-DAD-JDP, 2026 WL 1707102, at *3 (E.D. Cal. June 12, 2026)
(excusing exhaustion requirement where due process claim alleged Petitioner was entitled to
notice and pre-deprivation process prior to his re-arrest by ICE). Accordingly, the Court turns next
to the merits of Petitioner’s due process claim.
B. 	Due Process
Petitioner’s constitutional challenge is analyzed “in two steps: the first asks whether there
exists a protected liberty interest under the Due Process Clause, and the second examines the
procedures necessary to ensure any deprivation of that protected liberty interest accords with the
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Constitution.” Garcia v. Andrews, No. 2:25-CV-01884-TLN-SCR, 2025 WL 1927596, at *2 (E.D.
Cal. July 14, 2025) (citing Kentucky Dep’t. of Corrections v. Thompson, 490 U.S. 454, 460
(1989)). For the reasons that follow, the Court finds that Petitioner’s continued detention does not
violate his right to due process.
1. 	Liberty Interest
“[E]ven when an initial decision to detain or release an individual is discretionary, the
government’s subsequent release of the individual from custody creates ‘an implicit promise’ that
the individual’s liberty will be revoked only if they fail to abide by the conditions of their
release.” Calderon v. Kaiser, No. 25-CV-6695 AMO, 2025 WL 2430609, at *2 (N.D. Cal. Aug.
22, 2025) (quoting Morrissey v. Brewer, 408 U.S. 471, 482 (1972)). As such, Courts have found
that noncitizens in removal proceedings who have previously been released by immigration
authorities obtain a protected liberty interest in their continued freedom. See, e.g., Ortega v.
Bonnar, 415 F. Supp. 3d 963, 969 (N.D. Cal. 2019) (“Just as people on preparole, parole, and
probation status have a liberty interest, so too does [the noncitizen] have a liberty interest in
remaining out of custody on bond.”); Pinchi v. Noem, 792 F.Supp. 3d 1025, 1032 (N.D. Cal.
2025) (“[E]ven when ICE has the initial discretion to detain or release a noncitizen pending
removal proceedings, after that individual is released from custody she has a protected liberty
interest in remaining out of custody.”); He v. Lyons, No. 25-cv-10639-JSC, 2026 WL 280074, at
*3 (N.D. Cal. Feb. 3, 2026) (“Courts throughout the Ninth Circuit have concluded individuals
released from immigration custody on bond have a protectable liberty interest in remaining out of
custody on bond.”). As Petitioner was previously released by immigration authorities on bond in
2019, he has a protected liberty interest in his continued freedom.
2. 	Mathews Factors
Turning next to what process is due, many courts have applied the test established by the
Supreme Court in Mathews v. Eldridge in considering what process is due in the immigration
context. See Rodriguez Diaz v. Garland, 53 F.4th 1189, 1206 (9th Cir. 2022). There are three
factors relevant to the due process inquiry under the Mathews framework: (1) “the private interest
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that will be affected by the official action,” (2) “the risk of an erroneous deprivation ... and the
probable value, if any, of additional or substitute procedural safeguards,” and (3) “the
Government’s interest, including the function involved and the fiscal and administrative burdens
that the additional or substitute procedural requirement would entail.” Mathews v. Eldridge, 424
U.S. 319, 335 (1976). Here these factors weigh in the Government’s favor.
The first factor—the private interest that will be affected if Petitioner’s detention
continues—favors Petitioner. He has been detained for over five months, and prior to his re-
detention he had been at liberty for over seven years. “Freedom from imprisonment—from
government custody, detention, or other forms of physical restraint—lies at the heart of the liberty
that [Due Process] Clause protects.” Zadvydas, 533 U.S. at 690. A noncitizen’s private interest in
“freedom from prolonged detention” is “unquestionably substantial.” Singh v. Holder, 638 F.3d
1196, 1208 (9th Cir. 2011).
The second factor considers “the risk of an erroneous deprivation of [Petitioner’s] interest
through the procedures used, and the probable value, if any, of additional or substitute procedural
safeguards[.]” Mathews, 424 U.S. at 335. This factor tips in the Government’s favor. Though the
“risk of an erroneous deprivation of [a petitioner’s] interest is high” where a detainee “has not
received any bond or custody redetermination hearing,” Petitioner has received a bond hearing
here. Jimenez v. Wolf, No. 19-CV-07996-NC, 2020 WL 510347, at *3 (N.D. Cal. Jan. 30, 2020).
At the hearing the IJ concluded that Petitioner had violated one of the conditions of his prior
release given that he was recently arrested. See Dkt. No. 15-6 at 3–4. Further, the Court cannot
find that providing this hearing before he was re-detained would have prevented an erroneous
deprivation of Petitioner’s liberty as ICE had a prima facie basis for revocation of Petitioner’s
release at the time of his arrest. Indeed, Petitioner had only the day before been arrested and
charged with a domestic violence related offense. Courts in this district have found that pre-
deprivation process is not necessary in circumstances where “Respondents may well have a
legitimate interest in Petitioner’s detention based on the nature and recency of Petitioner’s
encounters with law enforcement[,]” and instead any due process violation can be remedied by
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post-deprivation process. Novais Delgado v. Warden of the California City Det. Facility, No.
1:26-CV-07027-JLT-EPG, 2026 WL 2718830, at *2 (E.D. Cal. Sept. 15, 2026); see also, Galindo
Vega v. Warden, Golden State Annex Det. Facility, No. 1:26-CV-03604 DC SCR, 2026 WL
1707804, at *1 (E.D. Cal. June 12, 2026) (finding that post-arrest hearing was sufficient process
where Petitioner was detained immediately following his arrest and has criminal charges pending
against); Addemys N.R. v. Warden of California City Det. Facility, No. 1:26-CV-03892-MWJS,
2026 WL 1831763, at *3 (E.D. Cal. June 25, 2026) (similar). That is effectively what occurred
here.
Further, the Court cannot conclude that the IJ’s failure to impose a clear and convincing
standard on the Government at the bond hearing resulted in an erroneous deprivation of
Petitioner’s liberty. The Ninth Circuit has rejected the argument that due process requires the
Government to justify detention under § 1226(a) by clear and convincing evidence as a general
matter. Rodriguez Diaz v. Garland, 53 F.4th 1189, 1210–12 (9th Cir. 2022); see also, Peter P. v.
Blanche, No. 1:26-CV-03085-MWJS, 2026 WL 1593627, at *3 (E.D. Cal. June 3, 2026) (noting
that shifting the burden of proof to the Government in § 1226(a) bond hearings is not required per
Rodriguez Diaz). Further, the IJ based his denial on the fact that Petitioner had violated a
condition of his prior release—a finding which he does not appear to be in dispute. Accordingly,
the Court cannot find that applying a clear and convincing standard was required under these
circumstances.
The third factor—the Government’s interest, including the function involved and the fiscal
and administrative burdens that the additional or substitute procedural requirement would entail—
weighs in the Government’s favor as well. The Government’s aim of “protecting the public from
dangerous criminal aliens” and “increas[ing] the chance that, if ordered removed, the aliens will be
successfully removed” are “interests of the highest order that only increase with the passage of
time.” Rodriguez Diaz, 53 F.4th at 1208 (quotations omitted). As other courts have recognized,
however, the key Government interest at stake here “is not the continued detention of Petitioner,
but the government’s ability to detain him without a bond hearing.” Zagal-Alcaraz v. ICE Field
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Office Director, No 19-CV-01358-SB, 2020 WL 1862254, at *7 (D. Or. March 25, 2020)
(collecting cases). Here, the Government held a bond hearing for Petitioner in June where it
considered his prior release, and determined that circumstances had changed since that release.
Given the fiscal and administrative burdens on the Government if it were required to release
Petitioner and then hold a renewed hearing in order to re-detain him, this factor favors the
Government.
Under these circumstances, the Mathews factors weigh in the Government’s favor and
outweigh Petitioner’s interest in release and pre-deprivation process prior to his detention. To the
extent Petitioner takes issue with the bond hearing itself, Petitioner can exercise his appellate
rights before the BIA or seek a renewed bond hearing under 8 U.S.C. § 1226(a) should his
circumstances materially change.
IV. 	CONCLUSION AND ORDER
For the foregoing reasons, the Petition is dismissed without prejudice. The Clerk of Court
is directed to close this case and enter judgment for Respondents. This order resolves all pending
motions.
IT IS SO ORDERED.
Dated: October 13, 2026
EDWARD J. DAVILA
United States District Judge
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