Perez Garcia v. Larose et al

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25-CV-3750 JLS (DEB)
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
ELMIN ADALID PEREZ GARCIA,
Petitioner,
v.
CHRISTOPHER LAROSE, Warden, Otay
Mesa Detention Center, et al.,
Respondents.
Case No.: 25-CV-3750 JLS (DEB)
ORDER GRANTING PETITION
FOR WRIT OF HABEAS CORPUS
(ECF No. 1)
Presently before the Court is Petitioner Elmin Adalid Perez Garcia’s Petition for
Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 (“Pet.,” ECF No. 1). Also before the
Court is Respondents Christopher J. LaRose’s (Senior Warden, Otay Mesa Detention
Center), Daniel A. Brightman’s (Acting Field Office Director, San Diego Office of
Detention and Removal), Todd M. Lyons’s (Acting Director, U.S. Immigration and
Customs 	Enforcement), 	Sirce 	Owen’s 	(Acting 	Director 	for 	Executive 	Office 	for
Immigration Review), Kristi Noem’s (Secretary of the Department of Homeland Security),
and Pam Bondi’s (Attorney General of the United States) (collectively, “Respondents”)
Response to Petition (“Ret.,” ECF No. 7) and Petitioner’s Traverse (“Traverse,” ECF
No. 8). For the reasons set forth below, the Court GRANTS Petitioner’s Petition for Writ
of Habeas Corpus.
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BACKGROUND
Petitioner, a citizen of Honduras, alleges that he has been detained by the United
States Department of Homeland Security’s Immigration and Customs Enforcement
division at the Otay Mesa Detention Center since September 12, 2025, when he was
arrested at the Salt Lake City airport. Pet. ¶ 14. Petitioner first entered the United States
on July 15, 2006, and was removed. Ret. at 2. On March 16, 2017, Petitioner returned to
the United States with his teenage son because his family was subject to death threats in
Honduras. 	Pet. ¶¶ 11–12. 	Petitioner was released on an Order of Supervision “after a
determination that he was neither a flight risk nor a danger to the community” and “that
there was no substantial likelihood that he could be removed in the reasonably foreseeable
future.” 	Id. ¶ 13. 	Prior to his re-detention, Petitioner attended all his ICE check-ins,
worked full time to support his family, lived “an exemplary life,” and “built extensive ties
in the community.” 	Id. ¶ 15. Petitioner now argues his re-detention without notice or an
opportunity to be heard violates the Due Process Clause and the Administrative Procedure
Act. Id. at 27–30.
LEGAL STANDARD
A federal prisoner challenging the execution of his or her sentence, rather than the
legality of the sentence itself, may file a petition for writ of habeas corpus in the district of
his confinement pursuant to 28 U.S.C. § 2241. See 28 U.S.C. § 2241(a). The sole judicial
body able to review challenges to final orders of deportation, exclusion, or removal is the
court of appeals. 	See generally 8 U.S.C. § 1252; see also Alvarez–Barajas v. Gonzales,
418 F.3d 1050, 1052 (9th Cir. 2005) (citing REAL ID Act, Pub. L. No. 109-13, 119 Stat.
231, § 106(a)). 	However, for claims challenging ancillary or collateral issues arising
independently from the removal process—for example, a claim of indefinite detention—
federal habeas corpus jurisdiction remains in the district court. 	Nadarajah v. Gonzales,
443 F.3d 1069, 1076 (9th Cir. 2006), abrogated on other grounds by Jennings v. Rodriguez,
138 S. Ct. 830 (2018); Alvarez v. Sessions, 338 F. Supp. 3d 1042, 1048–49 (N.D. Cal.
2018) (citations omitted).
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DISCUSSION
I. 	Due Process
Petitioner argues that the summary revocation of his order of supervised release
without notice or a hearing violates the Due Process Clause. Pet. ¶ 59. The Court agrees.
The Fifth Amendment guarantees that “[n]o person shall be . . . deprived of life,
liberty, or property, without due process of law.” 	U.S. Const. amend. V. 	“[T]he Due
Process Clause applies to all ‘persons’ within the United States, including aliens, whether
their presence here is lawful, unlawful, temporary, or permanent.” Zadvydas v. Davis, 533
U.S. 678, 693 (9th Cir. 2001). “[I]t is well established that the Fifth Amendment entitles
aliens to due process of law in deportation proceedings.” 	Reno v. Flores, 507 U.S. 292,
306 (1993). The Due Process Clause generally “requires some kind of a hearing before the
State deprives a person of liberty or property.” 	Zinermon v. Burch, 494 U.S. 113, 127
(1990). “Even individuals who face significant constraints on their liberty or over whose
liberty the government wields significant discretion retain a protected interest in their
liberty.” Pinchi v. Noem, No. 25-cv-5632-PCP, 2025 WL 2084921, at *3 (N.D. Cal. July
25, 2025) (citations omitted). 	Although the initial decision to detain or release an
individual may be within the government’s discretion, “the government’s decision to
release an individual from custody creates ‘an implicit promise,’ upon which that
individual may rely, that their liberty ‘will be revoked only if [they] fail[] to live up to the
. . . conditions [of release].’” Id. (quoting Morrissey v. Brewer, 408 U.S. 471, 482 (1972)).
“Thus, even when ICE has the initial discretion to detain or release a noncitizen pending
removal proceedings, after that individual is released from custody [he] has a protected
liberty interest in remaining out of custody.” 	Pinchi, 2025 WL 2084921, at *3 (citing
Romero v. Kaiser, No. 22-cv-20508, 2022 WL 1443250, at *2 (N.D. Cal. May 6, 2022)).
Respondents argue that Petitioner is subject to mandatory detention under 8 U.S.C.
§ 1231. 	See Ret. at 2. 	The Court disagrees. 	The Court agrees with Petitioner that the
framework discussed by Respondents is inapplicable in the present instance. See Traverse
at 3–4. In March 2017, Petitioner was determined to not be a danger to the community or
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a flight risk and was released. Pet. ¶ 13. Petitioner has complied with all conditions of his
release. 	Id. 	Petitioner works, has friends, and has developed a community. 	Id. ¶ 15.
Petitioner was previously released on an order of supervised release, and Petitioner has a
protected liberty interest in remaining out of custody. See, e.g., Pinchi, 2025 WL 2084921,
at *4 (“[Petitioner’s] release from ICE custody after her initial apprehension reflected a
determination by the government that she was neither a flight risk nor a danger to the
community, and [Petitioner] has a strong interest in remaining at liberty unless she no
longer meets those criteria.”); Noori, 2025 WL 2800149, at *10 (“Petitioner is not an
‘arriving’ noncitizen but one that has [been] present in our country for over a year. This
substantial amount of time indicates he is afforded the Fifth Amendment’s guaranteed due
process before removal.”); Matute v. Wofford, No. 25-cv-1206-KES-SKO (HC), 2025 WL
2817795, at *5 (E.D. Cal. Oct. 3, 2025) (finding petitioner had a protected liberty interest
in his release).
As Petitioner has a protected liberty interest, the Due Process Clause requires
procedural protections before he can be deprived of that interest. See Matthews v. Eldridge,
424 U.S. 319, 335 (1976). To determine which procedures are constitutionally sufficient
to satisfy the Due Process Clause, the Court must apply the Matthews factors. 	See
Matthews, 424 U.S. at 335. 	Courts must consider: (1) “the private interest that will be
affected by the official action”; (2) “the risk of an erroneous deprivation of such interest
through the procedures used, and the probable value, if any, of additional or substitute
procedural safeguards”; and (3) “the [g]overnment’s interest, including the function
involved and the fiscal and administrative burdens that the additional or substitute
procedural requirement would entail.” Id.
The Court finds that all three factors support a finding that the government’s
revocation of Petitioner’s order of supervised release without notification, reasoning, or an
opportunity to be heard, denied Petitioner of his due process rights. 	First, as discussed
above, Petitioner has a significant liberty interest in remaining out of custody pursuant to
his parole. “Freedom from imprisonment—from government custody, detention, or other
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forms of physical restraint—lies at the heart of the liberty [the Due Process Clause]
protects.” 	Zadvydas, 533 U.S. at 690. 	Petitioner has an interest in remaining with his
community and family, working, and continuing to live “an exemplary life.” Pet. ¶ 15; see
Morrissey, 408 U.S. 471 at 482 (“Subject to the conditions of his parole, he can be gainfully
employed and is free to be with family and friends and to form the other enduring
attachments of normal life.”).
Second, the risk of an erroneous deprivation of such interest is high as Petitioner’s
parole was revoked without providing him a reason for revocation or giving him an
opportunity to be heard. Pet. ¶ 14. Since DHS’s initial determination that Petitioner should
be paroled because he posed no danger to the community and was not a flight risk, there is
no evidence that these findings have changed. 	See Saravia v. Sessions, 280 F. Supp. 3d
1168, 1760 (N.D. Cal. 2017) (“Release reflects a determination by the government that the
noncitizen is not a danger to the community or a flight risk.”). Petitioner has no criminal
record, has not been arrested or otherwise in criminal trouble, has an established
community, and is working full-time to support his family. Pet. ¶ 15. “Once a noncitizen
has been released, the law prohibits federal agents from rearresting him merely because he
is subject to removal proceedings.” Saravia, 280 F. Supp. 3d at 1760. “Rather, the federal
agents must be able to present evidence of materially changed circumstances—namely,
evidence that the noncitizen is in fact dangerous or has become a flight risk. . . .” Id.
Respondents, failing to address Petitioner’s Due Process argument in their response,
do not point to any material circumstances that have changed that would warrant
reconsideration of his order of supervised release. 	See generally Ret. 	“Where, as here,
‘the petitioner has not received any bond or custody hearing,’ ‘the risk of an erroneous
deprivation of liberty is high’ because neither the government nor [Petitioner] has had an
opportunity to determine whether there is any valid basis for [his] detention.” Pinchi, 2025
WL 2084921, at *5 (quoting Singh v. Andrews, No. 25-cv-801-KES-SKO (HC), 2025 WL
1918679, at *7 (E.D. Cal. July 11, 2025)) (cleaned up).
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Third, the government’s interest in detaining Petitioner without notice, reasoning,
and a hearing is “low.” See Pinchi, 2025 WL 2084921, at *5; Matute, 2025 WL 2817795,
at *6; Ortega v. Bonnar, 415 F. Supp. 3d 963, 970 (N.D. Cal. Nov. 22, 2019) (“If the
government wishes to re-arrest [Petitioner] at any point, it has the power to take steps
toward doing so; but its interest in doing so without a hearing is low.”). Respondents fail
to point to any burdens on the government if it were to have provided proper notice,
reasoning, and a pre-deprivation hearing. See generally Ret.
Therefore, because Respondents detained Petitioner by revoking his order of
supervised release in violation of the Due Process Clause, his detention is unlawful. 	See,
e.g., Alegria Palma v. Larose et al., No. 25-cv-1942 BJC (MMP), slip op. at 14 (S.D. Cal.
Aug. 11, 2025) (granting a TRO based on a procedural due process challenge to a
revocation of parole without a pre-deprivation hearing); Navarro Sanchez, 2025 WL
2770629, at *5 (granting a writ of habeas corpus releasing petitioner from custody to the
conditions of her preexisting parole on due process grounds).1
II. 	Attorney’s Fees
Petitioner has requested costs and attorney’s fees in this action pursuant to the Equal
Access to Justice Act (“EAJA”), 28 U.S.C. § 2412. Pet. at 31. The EAJA provides in part:
A party seeking an award of fees and other expenses shall, within
thirty days of final judgment in the action, submit to the court an
application for fees and other expenses which shows that the
party is a prevailing party and is eligible to receive an award
under this subsection, and the amount sought, including an
itemized statement from any attorney . . . representing or
appearing in behalf of the party stating the actual time expended
and 	the 	rate 	at 	which 	fees 	and 	other 	expenses 	were
1 The Court need not address Petitioner’s claim arising under the APA because the Petition can be resolved
on due process grounds. However, the Court notes that other courts have found violations of the APA
based on similar grounds. See, e.g., Navarro Sanchez, 2025 WL 2770629, at *4 (finding revocation of
petitioner’s parole arbitrary and capricious because respondents did not state any reasons for the
revocation); Noori, 2025 WL 2800149, at *3 (“Petitioner’s parole was revoked without an individualized
determination or provided reasoning, which violated the APA.”).
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computed. The party shall also allege that the position of the
United States was not substantially justified. Whether or not the
position of the United States was substantially justified shall be
determined on the basis of the record . . . which is made in the
civil action for which fees and other expenses are sought.
28 U.S.C. § 2412(d)(1)(B).
The Court will consider an application requesting reasonable fees and costs under
the EAJA that is filed within thirty days of the judgment.
CONCLUSION
Based on the foregoing, the Court GRANTS Petitioner’s Petition for Writ of Habeas
Corpus (ECF No. 1), and ORDERS Respondents to immediately release Petitioner from
custody subject to the conditions of his preexisting order of supervised release. The Court
ORDERS, prior to any re-detention of Petitioner, that Petitioner is entitled to notice of the
reasons for revocation of his release and a hearing before a neutral decision maker to
determine whether detention is warranted. 	The government shall bear the burden of
establishing, by clear and convincing evidence, that Petitioner poses a danger to the
community or a risk of flight.2 The Parties are ORDERED to file a Joint Status Report by
January 13, 2026, confirming that Petitioner has been released. 	Lastly, Petitioner’s
attorney is directed to submit an attorney fee application and corresponding billing records
within thirty (30) days of this Order, and Respondents are instructed to file any opposition
within fourteen (14) days of Petitioner’s attorney fee application.
IT IS SO ORDERED.
Dated: January 9, 2026
2 This relief has been granted in similar matters. See, e.g., Matute, 2025 WL 2817795, at *8; Pinchi, 2025
WL 2084921, at *5; Doe v. Becerra, 787 F. Supp. 3d 1083, 1097 (E.D. Cal. 2025); Martinez Hernandez
v. Andrews, No. 25-CV-1035 JLT HBK, 2025 WL 2495767, at *14 (E.D. Cal. Aug. 28, 2025).
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