1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 * * *

7 MACARIO MIJAEL LIVIA VICHARRA, Case No. 2:25-cv-02336-RFB-EJY

8 Petitioner, ORDER

9 v.

10 BRIAN HENKEY, et al., 11 Respondents. 12

13 14 I. INTRODUCTION 15 This case is one of a rapidly growing number before this Court challenging the federal 16 government’s reading of the Immigration and Nationality Act (INA) to authorize mandatory 17 detention of all noncitizens charged with entering the United States without inspection.1 The 18 19 1 This Court has already granted petitioners relief—both preliminary and on the merits— in forty-three similar challenges. See Escobar Salgado v. Mattos, No. 2:25-cv-01872-RFB- 20 EJY

(D. Nev. Nov. 17, 2025); see also Herrera v. Knight, No. 2:25-CV-01366- 21 RFB-DJA,

(D. Nev. Sept. 5, 2025); Vazquez v. Feeley, No. 2:25-CV-01542- RFB-EJY,

(D. Nev. Sept. 17, 2025); Roman v. Noem, No. 2:25-CV-01684- 22 RFB-EJY,

(D. Nev. Sept. 23, 2025); Carlos v. Noem, No. 2:25-CV-01900- RFB-EJY,

(D. Nev. Oct. 10, 2025); E.C. v. Noem, No. 2:25-CV-01789-RFB- 23 BNW,

(D. Nev. Oct. 14, 2025); Perez Sanchez v. Bernacke, No. 2:25-CV- 24 01921-RFB-MDC (D. Nev. Oct. 17, 2025); Aparicio v. Noem, No. 2:25-CV-01919-RFB-DJA,

(D. Nev. Oct. 23, 2025); Dominguez-Lara v. Noem, No. 2:25-CV-01553-RFB- 25 EJY,

(D. Nev. Oct. 24, 2025); Bautista-Avalos v. Bernacke, 2:25-CV-01987- RFB-BNW (D. Nev. Oct 27, 2025); Arce-Cervera v. Noem, No. 2:25-CV-01895-RFB-NJK, 2025

(D. Nev. Oct. 28, 2025); Alvarado Gonzalez v. Mattos, No. 2:25-CV-01599-RFB- 27 NJK (D. Nev. Oct. 30, 2025); Rodriguez Cabrera v. Mattos, No. 2:25-cv-01551-RFB-EJY,

(D. Nev. Nov. 3, 2025); Berto Mendez v. Noem, No. 2:25-cv-02602-RFB-MDC, 28

(D. Nev. Nov. 7, 2025); Cornejo-Mejia v. Bernacke, No. 2:25-cv-02139-RFB- 1 executive branch now takes the position that the INA, specifically

(b)(2)(A), 2 requires the detention of all undocumented individuals during the pendency of their removal 3 proceedings, which can take months or years. According to this interpretation, detention without 4 a hearing is mandatary, no matter how long a noncitizen has resided in the country, and without 5 any due process to ensure the government has a legitimate, individualized interest in detaining 6 them. 7 According to a leaked internal memo, the Department of Homeland Security (DHS), in 8 conjunction with the Department of Justice (DOJ) adopted this new legal position on a nationwide 9 10

11 BNW,

(D. Nev. Nov. 18, 2025); Lucero Ortiz v. Bernacke, No. 2:25-cv-01833- 12 RFB-NJK,

(D. Nev. Nov. 19, 2025); Perez Sales v. Mattos, No. 2:25-cv-01819- RFB-BNW,

(D. Nev. Nov. 19, 2025); Hernandez Duran v. Bernacke, No. 2:25- 13 cv-02105-RFB-EJY,

(D. Nev. Nov. 19, 2025); Cabrera-Cortes v. Knight, No. 2:25-cv-01976-RFB-MDC,

(D. Nev. Nov. 20, 2025); Jacobo Ramirez 14 v. Noem, No. 2:25-cv-02136-RFB-MDC,

(D. Nev. Nov. 24, 2025); Garcia- 15 Arauz v. Noem, No. 2:25-cv-02117-RFB-EJY,

(D. Nev. Dec. 3, 2025); Silva Hernandez v. Noem, No. 2:25-cv-02304-RFB-EJY,

(D. Nev. Dec. 3, 16 2025); Reyes Cristobal v. Bernacke, No. 2:25-cv-02231-RFB-EJY,

(D. Nev. Dec. 4, 2025); Carrillo Fernandez v. Knight, No. 2:25-cv-02221-RFB-BNW,

17 (D. Nev. Dec. 4, 2025); Pilar Torres v. Bernacke, No. 2:25-cv-02270-RFB-EJY,

3514615 (D. Nev. Dec. 8, 2025); Nolasco-Gomez v. Noem, No. 2:25-cv-02217-RFB-DJA,

(D. Nev. Dec. 8, 2025); Ramirez-Contreras v. Noem, No. 2:25-cv-02218-RFB-EJY, 19

(D. Nev. Dec. 8, 2025); Rodas v. Noem, No. 2:25-cv-02216-RFB-BNW,

(D. Nev. Dec. 8, 2025); Perdomo-Gonzalez v. Noem, No. 2:25-cv-02121-RFB-EJY, 20

(D. Nev. Dec. 8, 2025); Hernandez Isidoro v. Bernacke, No. 2:25-cv-02312- 21 RFB-NJK,

(D. Nev. Dec. 8, 2025); Serrano Gonzalez v. Knight, No. 2:25-cv- 02081-RFB-BNW,

(D. Nev. Dec. 9, 2025); Morales Rondon v. Bernacke, No. 22 2:25-cv-01979-RFB-BNW,

(D. Nev. Dec. 9, 2025); Marquez v. Knight, No. 2:25-cv-02203-RFB-NJK,

(D. Nev. Dec. 9, 2025); Flores-Garcia v. Bernacke, 23 No. 3:25-cv-00688-RFB-CSD,

(D. Nev. Dec. 9, 2025); Garcia Soto v. Knight, 24 No. 2:25-cv-02138-RFB-BNW,

(D. Nev. Dec. 10, 2025); Quinonez Orosco v. Lyons, No. 2:25-cv-02240-RFB-EJY,

(D. Nev. Dec. 10, 2025); Salguero v. 25 DHS, No. 2:25-cv-02328-RFB-NJK,

(D. Nev. Dec. 10, 2025); Gallegos Rangel v. Knight, No. 2:25-cv-02161-RFB-BNW,

(D. Nev. Dec. 10, 2025); Mejia Soto 26 v. DHS, No. 2:25-cv-02281-RFB-EJY,

(D. Nev. Dec. 11, 2025); Perez 27 Gonzalez v. Noem, No. 2:25-cv-02137-RFB-DJA,

(D. Nev. Dec. 11, 2025); Ramirez v. Noem, No. 2:25-cv-02110-RFB-DJA (D. Nev. Dec. 12, 2025); Reyes v. Henkey, No. 28 2:25-cv-02206-RFB-NJK (D. Nev. Dec. 12, 2025); Sanchez-Camacho, No. 2:25-cv-02343-RFB- DJA (D. Nev. Dec. 12, 2025). 1 basis on July 8, 2025.2 It subjects millions of undocumented U.S. residents to prolonged detention 2 without the opportunity for release on bond, in contravention of decades of agency practice and 3 robust due process protections hitherto afforded to such residents under

(a).3 On 4 September 5, 2025, the Bureau of Immigration Appeals (BIA) issued a precedential decision 5 adopting this new interpretation of the government’s detention authority under the INA. See Matter 6 of Yajure Hurtado,

(BIA 2025) (“Hurtado”). After Hurtado, immigration judges 7 no longer have authority to hear bond requests or grant bond to noncitizens present in the U.S. 8 who entered without inspection.

9 The overwhelming majority of district courts across the country, including this Court, that 10 have considered the government’s new statutory interpretation have found it incorrect and 11 unlawful. See Escobar Salgado v. Mattos, No. 2:25-CV-01872-RFB-EJY,

(D. 12 Nev. Nov. 17, 2025) (finding “that the plain meaning of the relevant statutory provisions, when 13 interpreted according to fundamental canons of statutory construction,” as well as the legislative 14 history and decades of consistent agency practice establish “that the government's new 15 interpretation and policy under [§ 1225(b)(2)(A)] is unlawful.”); see also Barco Mercado v. 16 Francis, No. 1:25-CV-06852, at *9-10 (S.D.N.Y. Nov. 26, 2025) (collecting over 350 decisions by 17 over 160 different district judges finding the application of §1225(b)(2)(A) to noncitizens residing 18 in the United States unlawful). A nationwide class has also been certified, and declaratory relief 19 granted to all class members holding that they are being detained without a bond hearing 20 unlawfully. See Bautista v. Santacruz, No. 5:25-CV-01873-SSS-BFM,

(C.D. 21 Cal. Nov. 20, 2025); Bautista v. Santacruz, No. 5:25-CV-01873-SSS-BFM,

22 (C.D. Cal. Nov. 25, 2025). 23 Petitioner is currently detained without the opportunity for release on bond in the custody 24 of Federal Respondents at Nevada Southern Detention Center (NSDC), pursuant to this new

25 2 See ICE Memo: Interim Guidance Regarding Detention Authority for Applications for 26 Admission, AILA Doc. No. 25071607 (July 8, 2025), https://perma.cc/5GKM-JYGX. 27 3 See Kyle Cheney & Myah Ward, Trump’s new detention policy targets millions of immigrants. Judges keep saying its illegal., Politico (Sept. 20, 2025 at 4:00 p.m. EDT), 28 https://www.politico.com/news/2025/09/20/ice-detention-immigration-policy-00573850, https://perma.cc/L686-E97L. 1 detention “policy.” He asserts the application of § 1225(b)(2) to him is unlawful under the INA, 2 and his continued detention violates the Due Process Clause of the Fifth Amendment. He seeks a 3 writ of habeas corpus requiring that he be released unless Respondents provide him with a bond 4 hearing under § 1226(a) within seven days of the Court’s Order. For the reasons set forth below, 5 the Petition is granted and the Court orders Respondents to provide Petitioner a constitutionally 6 adequate bond hearing by December 18, 2025, or release him. 7 8 II. PROCEDURAL HISTORY 9 On November 24, 2025, Petitioner filed his Petition for a Writ of Habeas Corpus ECF No. 10 1. On November 25, 2025, this case was transferred to the undersigned judge as related to three 11 pending putative class actions pending before the Court. ECF No. 3. On November 26, 2025, the 12 Court ordered Respondents to show cause why the Petition should not be granted. ECF No. 5. 13 December 1, 2025, Respondents’ counsel filed a notice of appearance and a motion to 14 extend time to December 4, 2025, to file a response to the Order to Show Cause, citing the 15 Thanksgiving holiday and personnel taking leave as good cause. ECF Nos 6; 7 at 3. Respondents 16 then filed their Return to the Petition on December 4, 2025. ECF No. 9. On December 10, 2025, 17 Petitioner filed their Traverse. ECF No. 10. 18 The Court’s Order follows. 19 20 III. BACKGROUND 21 A. Legal Background 22 The Court fully incorporates by reference the legal background regarding the government’s 23 detention authority and removal proceedings under the INA, as well as the government’s new 24 statutory reading and mass detention “policy,” set forth in its ruling in Escobar Salgado,

3205356, at *2-6 (D. Nev. Nov. 17, 2025). 26 B. Petitioner Macario Mijael Livia Vicharra 27 The Court makes the following findings of fact. Mr. Livia Vicharra is a native and citizen 28 of Peru who has resided in the United States since 2017, when he entered without inspection. ECF 1 No. 1 at 10. He lives in Idaho with his wife and two-year-old U.S. citizen child.

Petitioner has 2 no criminal convictions and no prior encounters with immigration enforcement. Id. at 10-11. 3 Mr. Livia Vicharra has been detained in the custody of DHS since October 29, 2025, after 4 being encountered by ICE in the Gooding County Jail on October 20, 2025. ECF No. 9-3. 5 Petitioner had been arrested and detained at the county jail based on an attempted strangulation 6 allegation on October 19, 2025, however, that case was dismissed. Id. DHS commenced removal 7 proceedings against Petitioner by filing a Notice to Appear on October 29, 2025, charging 8 Petitioner as being inadmissible under

(a)(6)(A)(i) and without valid immigration 9 documents under

(a)(7)(A)(i)(I). ECF No. 9-2. He has now been detained at NSDC 10 for over six weeks and is unable to obtain a bond hearing due to Hurtado. 11 12 IV. LEGAL STANDARDS 13 The Constitution guarantees that the writ of habeas corpus is “available to every individual 14 detained within the United States.” Hamdi v. Rumsfeld,

(2004) (citing U.S. 15 Const., Art I, § 9, cl. 2). “Its province, shaped to guarantee the most fundamental of all rights, is 16 to provide an effective and speedy instrument by which judicial inquiry may be had into the legality 17 of the detention of a person.” Carafas v. LaVallee,

(1968). “The essence of 18 habeas corpus is an attack by a person in custody upon the legality of that custody, and . . . the 19 traditional function of the writ is to secure release from illegal custody.” Preiser v. Rodriguez, 411

, 484 (1973). A writ of habeas corpus may be granted to a petitioner who demonstrates 21 that he is in custody in violation of the Constitution or federal law.

(c)(3). 22 Historically, “the writ of habeas corpus has served as a means of reviewing the legality of 23 Executive detention, and it is in that context that its protections have been strongest.” I.N.S. v. St. 24 Cyr,

(2001). Accordingly, a district court's habeas jurisdiction includes 25 challenges to immigration-related detention. Zadvydas v. Davis,

(2001); see 26 also Demore v. Kim,

(2003); Trump v. J. G. G.,

(2025) 27 (describing immigration detainees’ challenge to their confinement and removal as falling “within 28 the ‘core’ of the writ of habeas corpus.”) (per curiam) (citations omitted). “The application for the 1 writ usurps the attention and displaces the calendar of the judge or justice who entertains it and 2 receives prompt action from him within the four corners of the application.” Yong v. I.N.S., 208

(9th Cir. 2000) (citation omitted). 4 5 V. DISCUSSION 6 As an initial matter, the Court grants Respondents’ Motion to Extend Time (ECF No. 7) to 7 file their Return, nunc pro tunc. Under Federal Rule of Civil Procedure 6(b), a court may “for good 8 cause,” extend a deadline so long as the request is made before the original deadline. Fed. R. Civ.

(b)(1)(A). The Court finds that this request was made prior to the Respondents’ original 10 deadline of December 1, 2025, and that there was good cause sufficient to grant Respondents’ brief 11 extension to December 4, 2025, given the federal holiday. 12 A. Jurisdiction 13 The Court has habeas jurisdiction to review Petitioner’s challenge to the lawfulness of his 14 detention, because the relevant jurisdiction stripping provisions of the INA,

do 15 not apply. See Escobar Salgado,

, at *8-10; Hernandez Duran v. Bernacke, 2:25- 16 cv-2105-RFB-EJY,

, at *4 (Nov. 19, 2025). In evaluating the jurisdiction 17 stripping provisions of the INA, the Court is guided “by the general rule to resolve any ambiguities 18 in a jurisdiction-stripping statue in favor of the narrower interpretation and by the strong 19 presumption in favor of judicial review.” Arce v. United States, 899 F. F.3d 796, 801 (9th Cir. 20 2018) (per curiam) (internal quotations and citations omitted). Respondents do not challenge this 21 Court’s jurisdiction over the instant case. 22 In their Return, Respondents assert that Petitioner’s habeas challenge to the lawfulness of 23 his detention is jurisdictionally barred by

(g), 1252(a)(5), and 1252(b)(9). As this 24 Court has previously ruled, and which is incorporated by reference herein, Respondents’ 25 arguments under those jurisdiction stripping provisions of the INA are foreclosed by Ninth Circuit 26 and Supreme Court precedent. See Escobar Salgado,

, at *8-10. 27 B. Statutory Question 28 Petitioner Livia Vicharra challenges the government’s new interpretation of the INA, and 1 his detention thereunder, as unlawful. While Respondents assert that § 1225(b)(2) applies to 2 Petitioner and mandates his detention without a bond hearing, Petitioner argues Respondents’ 3 interpretation of the statutory scheme of §§ 1225 and 1226 is flawed, contradicting both the 4 statutory framework and the decades of agency practice applying § 1226(a) to people like 5 Petitioner. This Court agrees with Petitioner and fully incorporates by reference its holding and 6 findings in Escobar Salgado v. Mattos.

, at *10-22. 7 Petitioner is a longtime U.S. resident, who entered the country without inspection several 8 years ago, and who was arrested and detained by ICE in Idaho, far from any port of entry. In 9 addition, Petitioner has no criminal convictions that would subject him to detention under § 10 1226(c). Accordingly, the Court finds Petitioner is subject to detention under § 1226(a) and its 11 implementing regulations, not § 1225(b)(2)(A), and that the government’s new interpretation and 12 policy under that provision is unlawful. Escobar Salgado,

, at *10-22. 13 C. Due Process4 14 Petitioner also challenges his ongoing detention without the opportunity for release on 15 bond under § 1225(b)(2) as unconstitutional under the Due Process Clause of the Fifth 16 Amendment. Even if this Court were to accept the government’s new reading of § 1225(b)(2), it 17 would still have to contend with Petitioner’s due process challenge on this basis. Respondents 18 assert that Petitioner’s due process rights are not violated by detention without opportunity for 19 release on bond, citing to the Supreme Court’s upholding of detention without bond hearings under 20 § 1226(c) in Demore. See ECF No. 9-5 at 19 (citing Demore,

). However, 21 Demore’s holding was based on the government establishing a particular interest in detaining a 22 limited class of noncitizens who had been convicted of certain crimes and were therefore 23 statistically more likely to abscond from removal proceedings. Demore,

. In 24 addition, the Court noted that detention without bond of noncitizens in that narrow class satisfied 25 26 4 In the section of his brief that discusses the due process claim, Petitioner includes one mention of the Fourth Amendment: “Petitioner was arrested and is detained in violation of his 27 rights under the Fourth Amendment of the United States Constitution.” ECF No. 1 at 12. However, because there is no further mention nor argument on this point, and the section otherwise addresses 28 Fifth Amendment due process concerns, the Court does not address the Fourth Amendment in this Order. 1 due process because the convictions had been obtained with the “full procedural protections our 2 criminal justice system offer.”

. That interest is plainly not implicated in this case, 3 where Petitioner has no qualifying criminal convictions. Furthermore, the government has not 4 shown it has an individualized purpose in detaining Petitioner. 5 This Court further incorporates by reference the legal authorities and standards set forth in 6 Escobar Salgado v. Mattos regarding the due process rights of noncitizens.

, at 7 *22-24. For the following reasons, the Court finds that Petitioner is currently being detained 8 without the opportunity for release on bond in violation of his procedural and substantive due 9 process rights. 10 1. Procedural Due Process 11 To determine whether detention violates procedural due process, courts apply the three- 12 part test set forth in Mathews v. Eldridge,

(1976). See Rodriguez Diaz v. Garland, 13

, 1203-07 (9th Cir. 2022) (collecting cases and applying the Mathews test in a similar 14 immigration detention context and holding “[u]ltimately, Mathews remains a flexible test that can 15 and must account for the heightened governmental interest in the immigration detention context”). 16 Under Mathews, the courts weigh the following three factors: (1) “the private interest that 17 will be affected by the official action”; (2) “the risk of an erroneous deprivation of such interest 18 through the procedures used, and the probable value, if any, of additional or substitute procedural 19 safeguards”; and (3) “the Government's interest, including the function involved and the fiscal and 20 administrative burdens that the additional or substitute procedural requirement would entail.” 21 Mathews,

. 22 The first Mathews factor considers the private interest affected by the government's 23 ongoing detention of Petitioner without the opportunity for release on bond. See Mathews, 424 24 U.S. at 335. Here, that is Petitioner’s interest in being free from imprisonment, “the most elemental 25 of liberty interests.” Hamdi,

. In this country, liberty is the norm and detention “is 26 the carefully limited exception.” United States v. Salerno,

(1987); see also 27 Rodriguez Diaz, 53 F.4th At 1207 (“An individual's private interest in freedom from prolonged 28 detention is unquestionably substantial.”) (citations omitted). 1 Additionally, Petitioner’s liberty interest is not diminished by any final order of removal, 2 or the availability of any existing process to challenge Respondents’ decision to detain him without 3 bond. Cf. id. at 1208 (holding the habeas petitioner's liberty interest was diminished by the fact 4 that he was subject to a final order of removal, had already been afforded an individualized bond 5 hearing, and had additional process available to him through a further bonding hearing before an 6 IJ upon a showing of materially changed circumstances). 7 Second, the Court considers “the risk of an erroneous deprivation of [Petitioner’s] interest 8 through the procedures used, and the probable value, if any, of additional procedures.” Mathews, 9

. There are no existing procedures whatsoever for Petitioner to challenge his 10 detention pending the conclusion of his removal proceedings without the opportunity for release 11 on bond. The risk of erroneous deprivation is extraordinarily high where ICE and DHS agency 12 officials have sole, unguided, and unreviewable discretion to detain Petitioner without any 13 individualized showing of why his detention is warranted, nor any process for Petitioner to 14 challenge the exercise of that discretion. The likelihood of erroneous deprivation caused by this 15 lack of process is demonstrated by numerous prior cases before this Court where an IJ held a bond 16 hearing for a petitioner prior to Hurtado and found that the government had not established a 17 justification for detention. See, e.g., Escobar Salgado,

; Aparicio v. Noem, No. 18 2:25-CV-01919-RFB-DJA,

(D. Nev. Oct. 23, 2025); Berto Mendez v. Noem, 19 No. 2:25-cv-02602-RFB-MDC,

(D. Nev. Nov. 7, 2025). Moreover, given that 20 Petitioner has significant familial and financial ties in the country given his several years of 21 residency, and Respondents have not asserted he is dangerous or a flight risk, the Court finds that 22 he is being arbitrarily and unjustifiably deprived of his liberty. 23 The additional procedures afforded under § 1226(a), including an individualized custody 24 redetermination by an immigration judge, i.e., a bond hearing, substantially mitigate the risk of 25 erroneous deprivation of Petitioner’s liberty, because those procedures require the government to 26 establish that Petitioner presents a flight risk or danger to the community. This would account for 27 the constitutional requirement that “once the flight risk justification evaporates, the only special 28 circumstance [ ] present is the alien's removable status itself, which bears no relation to a detainee's 1 dangerousness.” Zadvydas, 553 U.S. at 691-92. An adverse decision by an immigration judge in a 2 bond hearing can further be appealed, and Petitioner could seek additional custody 3 redeterminations based on changed circumstances, such that the outcome of a bond hearing would 4 be subject to “numerous levels of review, each offering [Petitioner] the opportunity to be heard by 5 a neutral decisionmaker.” Rodriguez Diaz, 53 F.4th at 1210 (finding the bond hearing procedures 6 available through the implementing regulations of § 1226(a) would render “the risk of erroneous 7 deprivation . . . relatively small.”) (citation omitted). As such, the second Mathews factor also 8 weighs heavily in favor of granting Petitioner the procedural protections under § 1226(a). 9 The third and final Mathews factor considers the “Government's interest, including the 10 function involved and the fiscal and administrative burdens that the additional or substitute 11 procedural requirement would entail.”

. The Court acknowledges that the 12 government's interests in enforcing immigration laws, including “protecting the public from 13 dangerous criminal aliens” and “securing an alien's ultimate removal,” are “interests of the highest 14 order.” Rodriguez Diaz, 53 F.4th at 1188-89. These interests are in fact served by the 15 individualized determination by an immigration judge, based on a review of evidence presented 16 by the government and the noncitizen, as to whether an individual is dangerous or at risk of fleeing 17 removal proceedings, under existing, well-established procedures. In failing to articulate any 18 individualized reason why detaining Petitioner is necessary to enforce immigration law, the 19 question arises “whether the detention is not to facilitate deportation, or to protect against risk of 20 flight or dangerousness, but to incarcerate for other reasons.” Demore,

-33 21 (Kennedy, J. concurring). And the government has no interest in the unjustified deprivation of a 22 person's liberty. 23 Further, the Court finds that limiting the use of detention to only those noncitizens who are 24 dangerous or a flight risk through existing bond procedures serves the government and public's 25 interest by reducing the fiscal and administrative burdens attendant to immigration detention. 26 Hernandez v. Sessions,

(9th Cir. 2017) (Noting in 2017 that “the costs to the 27 public of immigration detention are staggering: $158 each day per detainee, amounting to a total 28 daily cost of $6.5 million. Supervised release programs cost much less by comparison: between 17 1 cents and 17 dollars each day per person.”). 2 In sum, the Court finds the Mathews factors weigh heavily in factor of Petitioner, and 3 therefore, his detention without the opportunity for release on bond violates his procedural due 4 process rights. 5 2. Substantive Due Process 6 Immigration detention violates the Due Process Clause unless it is ordered in a criminal 7 proceeding with adequate procedural protections, or in non-punitive circumstances “where a 8 special justification . . . outweighs the individual's constitutionally protected interest in avoiding 9 physical restraint.” Zadvydas,

. 10 Respondents have asserted no individualized justification—let alone a special or 11 compelling justification—to continue to deprive Petitioner of his physical liberty. Accordingly, 12 in addition to finding that the challenged regulation violates procedural due process, this Court 13 further finds that Petitioner is currently detained in violation of his substantive due process rights. 14 See Escobar Salgado,

, at *25. 15 D. Scope of Relief 16 The federal habeas corpus statute “does not limit the relief that may be granted to discharge 17 of the applicant from physical custody.” Carafas v. LaVallee,

(1968). “Its 18 mandate is broad with respect to the relief that may be granted.”

“It provides that ‘[t]he court 19 shall . . . dispose of the matter as law and justice require.’”

(quoting

). 20 Here, Petitioner faces the specific harm of being detained for months without a bond 21 hearing pursuant to § 1226(a). The Court finds that harm is remedied by ordering a bond hearing 22 by December 18, 2025. Given the due process rights at stake, if a bond hearing is not provided 23 promptly within that time frame, Petitioner shall be immediately released until it is determined 24 that his detention is warranted under

(a). 25 E. Attorneys’ Fees 26 The Court defers on ruling on the matter of attorneys’ fees and costs. Should Petitioner’s 27 counsel wish to pursue a claim for attorneys’ fees and costs under the Equal Access to Justice Act 28 (EAJA), they are instructed to file a separate motion on the issue in accordance with LR 54-14. 1 VI. CONCLUSION 2 Based on the foregoing IT IS HEREBY ORDERED that the Petition (ECF No. 1) is | GRANTED. 4 IT IS FURTHER ORDERED that Respondents must provide Petitioner with a bond 5 | hearing pursuant to

(a) no later than December 18, 2025. 6 IT IS FURTHER ORDERED that Respondents are enjoined from denying Petitioner 7 | release on bond on the basis that he is subject to mandatory detention pursuant to

| 1225(b)(2). Thus, in the event that bond is granted, the Court ORDERS that Respondents are 9 | enjoined from invoking the automatic stay to continue Petitioner’s detention, as the Court has 10 | already found the automatic stay unconstitutional and adopts that finding here. Herrera v. Knight, No. 2:25-CV-01366-RFB-DJA,

, at *13 (D. Nev. Sept. 5, 2025). 12 In the event that bond is granted, Respondents are ORDERED to immediately release 13 | Petitioner. The Court has received notice of the hardship other petitioners have incurred in their efforts to satisfy bond, and therefore, the Court FURTHER ORDERS that Petitioner be afforded 15 | 45 days from the date of release to satisfy any monetary bond conditions. 16 IT IS FURTHER ORDERED that if the individualized bond hearing is not conducted by December 18, 2025, Petitioner shall be immediately released until it is determined that his 18 | detention is warranted under

(a). 19 IT IS FURTHER ORDERED that the parties shall file a status report on the status of 20 | Petitioner’s bond hearing by December 19, 2025. The status report shall detail if and when the 21 | bond hearing occurred, if bond was granted or denied, and if denied, the reasons for that denial. 22 IT IS FURTHER ORDERED that Respondents’ Motion to Extend Time (ECF No. 7) is 23 | GRANTED, nunc pro tunc. 24 DATED: December 12, 2025.

7 RICHARD F. BOULWARE, II UNITED STATES DISTRICT JUDGE 28

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