3:25-cv-09302
N.D. Cal.
Nov 19, 2025

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA LESBIA JESENIA LEIVA FLORES, Case No. 25-cv-09302-AMO Plaintiff, ORDER GRANTING v. PRELIMINARY INJUNCTION SERGIO ALBARRAN, et al.,

Defendants. Petitioner Lesbia Jesenia Leiva Flores is an asylum seeker who was detained at an Immigration and Customs Enforcement (“ICE”) check-in on October 28, 2025. Leiva Flores filed a petition for writ of habeas corpus and a motion for a temporary restraining order (“TRO”) seeking release from detention. See Dkt. Nos. 1, 3. On October 29, 2025, this Court issued a TRO requiring Sergio Albarran, Todd Lyons, Kristi Noem, and Pamela Bondi (“Respondents”) to release Leiva Flores and enjoining them from re-detaining her without notice and a pre-arrest hearing before a neutral decisionmaker, and ordered Respondents to show cause why a preliminary injunction should not issue. See Dkt. No. 4 at 3-4. On November 7, 2025, Respondents filed their response, Dkt. No. 10, and Leiva Flores’s reply followed on November 12, 2025, Dkt. No. 11. Having carefully considered the parties’ papers and the arguments made therein and at the hearing, as well as the relevant legal authority, the Court hereby GRANTS Leiva Flores’s motion for preliminary injunction for the following reasons.

I. BACKGROUND

A. Factual Background Leiva Flores is an asylum seeker from Nicaragua. Pet. for Writ of Habeas Corpus (“Pet.”) ¶ 1, Dkt. No. 1. She entered the United States in July 2021 and U.S. Border Patrol detained her. Deportation Officer Decl., Dkt. No. 10-1. A day after her detention, a Border Patrol Agent began to fill out a Form I-860 Notice and Order of Expedited Removal (“I-860”) for Leiva Flores. See Dkt. No. 10-1 at 9. The I-860 stated that Leiva Flores was subject to expedited removal under 8 U.S.C. § 1225(b)(1) because she was not a citizen of the United States, she was a native and citizen of Nicaragua, and because she was not in possession of a valid entry document. Id. The I- 860 was never completed. Id . The “Order of Removal” section of the I-860 is blank, indicating that no order was ever issued. Id. The I-860 also lacks a signed certificate of service, indicating that it was never served on Leiva Flores as required by 8 C.F.R. § 235.3(b)(2). While detained, Leiva Flores expressed that she had a fear of returning to her country. Dkt. No. 10 at 14. Leiva Flores was never ordered removed pursuant to Section 1225(b)(1).

On August 8, 2021, Leiva Flores was released from custody pursuant to Fraihat v. ICE , 445 F. Supp. 3d 709 (C.D. Cal. Apr. 20, 2020), which required the temporary release of noncitizens with certain risk factors related to the Covid-19 pandemic. Dkt No. 10-1 at 18-19. On September 14, 2021, Leiva Flores attended a scheduled ICE check-in and was issued a Form I- 220, which stated that she was being released on her own recognizance (“OREC”) “[i]n accordance with section 236 of the Immigration and Nationality Act [8 U.S.C. § 1226].” Dkt. No. 3-2 at 7. Respondents contend that this document was issued erroneously to Leiva Flores. Dkt. No. 10 at 11. Since her release, Leiva Flores has attended every scheduled ICE check-in. Dkt. No. 11 at 16. She has no criminal record anywhere in the world. Id.

In January 2022, Leiva Flores affirmatively applied for asylum before the United States Citizenship and Immigration Service (“USCIS”) Asylum Office. Id. at 11; Dkt. No. 11 at 7 . On June 12, 2025, Leiva Flores received a “Notice of Dismissal of Form I-589” indicating that USCIS was dismissing her asylum application because she had been placed in expedited removal proceedings. Dkt. No. 10 at 7. On October 28, 2025, Leiva Flores reported for a scheduled ICE check-in and was detained. Id. ¶ 3.

Leiva Flores filed this habeas petition and moved for a TRO on October 29, 2025. See Dkt. Nos. 1, 3. The Court granted Leiva Flores’s request for a TRO as modified the same day and ordered Leiva Flores’s release. See Dkt. No. 4. Respondents confirmed that Leiva Flores was released by 7:00 a.m. on October 30, 2025. See Dkt. No. 7.

B. Statutory Framework The statutory scheme governing immigration detention and removal is complex. Two removal statutes are at issue in this case. Leiva Flores and Respondents disagree to which removal statute Leiva Flores is subject. The Court summarizes both removal statutes below before engaging the parties’ arguments.

i. 8 U.S.C. § 1226 (Full Removal Proceedings and Discretionary Detention)

Title 8 U.S.C. § 1226 governs removal proceedings for noncitizens who were lawfully admitted into the United States but are deportable and subject to removal proceedings. Section 1226(a) provides that noncitizens “may be arrested and detained” while their removal proceedings are pending or the government may release the noncitizen on “conditional parole.” 8 U.S.C. § 1226(a)(2); see also Dep’t of Homeland Sec. v. Thuraissigiam , 591 U.S. 103, 108 (2020). An ICE officer makes an initial determination when a person is apprehended under Section 1226(a) as to whether the noncitizen should be taken into custody. 8 C.F.R. § 236.1(c)(8). Noncitizens are released if they “demonstrate to the satisfaction of the [ICE] officer that such release would not pose a danger to property or persons, and that the alien is likely to appear for any future proceeding.” Rodriguez Diaz v. Garland , 53 F.4th 1189, 1196 (9th Cir. 2022) (citing 8 C.F.R. § 236.1(c)(8)).

If a noncitizen is detained, they are entitled to a bond hearing before an Immigration Judge. Jennings v. Rodriguez , 583 U.S. 281, 306 (2018) (citing 8 CFR § 236.1(d)(1)). The Immigration Judge will order the noncitizen’s release if the noncitizen “demonstrates by the preponderance of the evidence that he or she is not ‘a threat to national security, a danger to the community at large, likely to abscond, or otherwise a poor bail risk[.]’ ” Salcedo Aceros v. Kaiser , No. 25-CV-06924- EMC (EMC), 2025 WL 2637503, at *1 (N.D. Cal. Sept. 12, 2025) (quoting Rodriguez Diaz , 53 F.4th at 1197). Under Section 1226(b), “the DHS has authority to revoke a noncitizen’s bond or parole ‘at any time,’ even if that individual has previously been released.” Ortega v. Bonnar , 415 F. Supp. 3d 963, 968 (N.D. Cal. 2019). But if it was previously determined that a noncitizen should be released on bond, “DHS may not re-arrest that noncitizen absent a change in circumstance.” Salcedo Aceros , 2025 WL 2637503, at *1 (citing Panosyan v. Mayorkas , 854 F. App’x 787, 788 (9th Cir. 2021)) (noting changed circumstance standard applies whether an immigration judge or ICE officer had previously released a noncitizen on bond).

ii. 8 U.S.C. § 1225 (Expedited Removal and Mandatory Detention) Title 8 U.S.C. § 1225 lays out the procedures by which the government may mandatorily detain “an applicant for admission”, who 8 U.S.C. § 1225(a)(1) defines as a noncitizen “present in the United States who has not been admitted or who arrives in the United States.” Applicants for admission “fall into one of two categories, those covered by § 1225(b)(1) and those covered by § 1225(b)(2),” both of which are subject to mandatory detention. Jennings , 583 U.S. at 287 (“[R]ead most naturally, §§ 1225(b)(1) and (b)(2) mandate detention for applicants for admission until certain proceedings have concluded.”). Neither Leiva Flores nor Respondents argue that Leiva Flores is subject to Section 1225(b)(2), so the Court does not engage that provision further. Section 1225(b)(1) applies to “arriving” noncitizens “initially determined to be inadmissible due to fraud, misrepresentation, or lack of valid documentation.” 8 U.S.C. §§ 1225(b)(1)(A)(i), (iii). If a noncitizen “indicates either an intention to apply for asylum” or “a fear of persecution,” Section 1225(b)(1) provides that an immigration officer “shall refer the[m] for an interview by an asylum officer.” §§ 1225(b)(1)(A)(i)–(ii). Detention of the noncitizen is “mandatory” “pending a final determination of credible fear of persecution and if found not to have such a fear, until removed.” § 1225(b)(1)(B)(iii)(IV).

II. DISCUSSION

Leiva Flores seeks a preliminary injunction to prevent Respondents from re-detaining her absent notice and a pre-deprivation hearing before an Immigration Judge to evaluate whether her re-detention is warranted.

A. Legal Standard To obtain preliminary injunctive relief, the moving party must show: (1) a likelihood of success on the merits, (2) a likelihood of irreparable harm to the moving party in the absence of preliminary relief, (3) the balance of equities tips in the favor of the moving party, and (4) an injunction is in the public interest. Winter v. Natural Res. Def. Council, Inc. , 555 U.S. 7, 20 (2008). Where the government is a party, courts merge the analysis of the final two Winter factors, the balance of equities and the public interest. Drakes Bay Oyster Co. v. Jewell , 747 F.3d 1073, 1092 (9th Cir. 2014) (citing Nken v. Holder , 556 U.S. 418, 435 (2009)). Courts “explore the relative harms to applicant and respondent, as well as the interests of the public at large.” Barnes v. E-Sys., Inc. Grp. Hosp. Med. & Surgical Ins. Plan , 501 U.S. 1301, 1305 (1991) (internal quotation marks and citation omitted). The Winter factors may be evaluated on a sliding scale, such that preliminary relief may be issued when the moving party demonstrates “that serious questions going to the merits were raised and the balance of hardships tips sharply in the plaintiff’s favor.” All. for the Wild Rockies v. Cottrell , 632 F.3d 1127, 1134-35 (9th Cir. 2011) (citation omitted). To grant preliminary injunctive relief, a court must find that “a certain threshold showing [has been] made on each factor.” Leiva-Perez v. Holder , 640 F.3d 962, 966 (9th Cir. 2011) (per curiam). B. Likelihood of Success on the Merits Leiva Flores asserts that her re-detention violates her substantive and procedural rights to due process. Under the Due Process Clause of the Fifth Amendment to the United States Constitution, no person shall be “deprived of life, liberty, or property, without due process of law.” U.S. Const. amend. V. “The Fifth Amendment guarantees due process in deportation

proceedings.” Torres-Aguilar v. I.N.S. , 246 F.3d 1267, 1270 (9th Cir. 2001) ( citing Campos- Sanchez v. I.N.S. , 164 F.3d 448, 450 (9th Cir. 1999), superseded by statute on other grounds as stated in Arizmendi-Medina v. Garland , 69 F.4th 1043, 1053 (9th Cir. 2023)).

As an initial matter, because it is disputed by the parties, the Court must resolve whether Leiva Flores is subject to detention under Section 1225 or 1226. According to Respondents, Leiva Flores “lack[s] a liberty interest in additional procedures including a custody redetermination or pre-detention bond hearing . . . [because her] conditional parole status does not provide [her] with additional rights above and beyond the specific process already provided by Congress in § 1225.” Id. at 18 (emphasis in original). The Court finds that Leiva Flores was paroled under Section 1226 and therefore is not subject to mandatory detention. While the incomplete I-860 that Respondents point to may establish that a border patrol agent at one time intended to put Leiva Flores into expedited removal proceedings pursuant to Section 1225, that form was not completed, and decidedly did not actually put her into expedited removal proceedings. The Order of Removal on Leiva Flores’s I-860 is blank and unsigned. See Dkt. No. 10-1 at 9. 8 C.F.R. § 235.3(b)(2) requires that an officer seek supervisory concurrence before issuing an expedited removal order on a Form I-860. 8 C.F.R. § 235.3(b)(7) adds that “[a]ny removal order entered by an examining immigration officer pursuant to section 235(b)(1) of the Act must be reviewed and approved by the appropriate supervisor before the order is considered final.” Leiva Flores’s I-860 lacks signatures of both the immigration officer who allegedly ordered her removed and any concurring supervisor. See Dkt. No. 10-1 at 9. Thus, Respondents have provided no evidence that an expedited removal order pursuant to Section 1225 was ever issued against Leiva Flores. By contrast, Leiva Flores provides affirmative evidence that she was placed in removal proceedings pursuant to Section 1226(a). ICE issued Leiva Flores a Form I-220 expressly stating that she was being released on her own recognizance “[i]n accordance with section 236 of the Immigration and Nationality Act [8 U.S.C. § 1226].” Dkt. No. 3-2 at 7. A noncitizen released on an “Order of Release on Recognizance” necessarily must have been detained and released under Section 1226. See Ortega-Cervantes v. Gonzales , 501 F.3d 1111, 1115-16 (9th Cir. 2007). Respondents argue this document was issued erroneously because (1) this document is issued to noncitizens in Section 1226 removal proceedings, but Leiva Flores was in Section 1225 removal proceedings, and (2) Leiva Flores was already paroled pursuant to Fraihat v. ICE . Dkt. No. 10 at 11. These arguments are unpersuasive. As discussed supra , Leiva Flores was never actually put into Section 1225 removal proceedings because the “Order of Removal” section of the I-860 was left blank. Additionally, OREC and temporary parole pursuant to Fraihat are not mutually exclusive. Indeed, parole pursuant to Fraihat and parole pursuant to OREC serve two different purposes. The former was a temporary, one-year release given Leiva Flores’s medical conditions during the global pandemic, and the latter is a more permanent finding that Leiva Flores did not represent a flight risk or danger to the community.

For these reasons, the Court finds that Leiva Flores was originally placed into Section 1226 removal proceedings. To the extent Respondents argue that Leiva Flores is subject to removal under Section 1225 now, even if she was not initially put into Section 1225 removal proceedings, the Court rejects this argument. The Court is persuaded by the many district courts that have found Section 1225 inapplicable to noncitizens who were conditionally released in the past under Section 1226. See, e.g. , Salcedo Aceros v. Kaiser , No. 25-CV-06924-EMC, 2025 WL 2637503 (N.D. Cal. Sept. 12, 2025); Hernandez Nieves v. Kaiser , No. 25-CV-06921-LB, 2025 WL 2533110 (N.D. Cal. Sept. 3, 2025); Jimenez Garcia v. Kaiser , No. 4:25-cv-06916-YGR (N.D. Cal. Aug. 29, 2025); Ramirez Clavijo v. Kaiser , No. 25-CV-06248-BLF, 2025 WL 2419263 (N.D. Cal. Aug. 21, 2025). Respondents rely on a recent Board of Immigration Appeals (“BIA”) decision, In re Yajure Hurtado , 29 I & N. Dec. 216 (BIA 2025), for the proposition that noncitizens who have lived in the United States for years can still be considered “applicants for admission” subject to mandatory detention under Section 1225. Dkt. No. 10 at 12-13. The Court finds that Yajure Hurtado “merit[s] little deference due to its inconsistency with earlier BIA decisions” and because “its reasoning is [] at odds with the text of sections 1225 and 1226.” Valencia Zapata v. Kaiser , No. 25-CV-07492-RFL, 2025 WL 2741654, at *10 (N.D. Cal. Sept. 26, 2025). Accordingly, Respondents’ argument that Leiva Flores is subject to mandatory detention under Section 1225 and has no interest in “additional process” must fail. 1. Procedural Due Process

The Court next decides what procedural process is due, and considers well-trodden factors set forth by the Supreme Court: (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 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). The Ninth Circuit has “assume[d] without deciding” that Mathews applies in the immigration detention context. See Rodriguez Diaz v. Garland , 53 F.4th 1189, 1206-8 (9th Cir. 2022) (applying Mathews to § 1226(a) and explaining “it remains a flexible test”). And many district courts in this Circuit regularly apply Mathews in due process challenges to removal proceedings. See Pinchi v. Noem , No. 5:25-CV-05632-PCP, 2025 WL 2084921, at *3 n.2 (N.D. Cal. July24, 2025) (collecting cases). The Court therefore joins the many district courts in this Circuit that have applied Mathews in this context. See E.A. T.-B. v. Wamsley , No. C25-1192- KKE, 2025 WL 2402130, at *3 n.1 (W.D. Wash. Aug. 19, 2025) (collecting cases). The Court considers each factor in turn.

i. Private Interest Leiva Flores has a substantial private interest in remaining out of custody. If detained, Leiva Flores would be unable to continue working, remaining in her home, and building connections in her community. Leiva Flores holds an employment authorization document and is gainfully employed as a cleaner at the San Francisco International Airport. Dkt. No. 3-2 ¶ 12; Dkt. No. 3-1 at 11. The first Matthews factor therefore weighs in Leiva Flores’s favor. See Pinchi , 2025 WL 2084921, at *4 (finding petitioner had a substantial interest “in remaining in her home, continuing her employment, providing for her family, obtaining necessary medical care, maintaining her relationships in the community, and continuing to attend her church.”); see also Castellon v. Kaiser , No. 1:25-CV-00968 JLT EPG, 2025 WL 2373425, at *9 (E.D. Cal. Aug. 14, 2025) (finding petitioner “has a substantial private interest in being out of custody, which would allow her to continue” working, attending community college, building connections in the community, and obtaining necessary medical care).

ii. Risk of Erroneous Deprivation Second, there is a risk Respondents will erroneously deprive Leiva Flores of her liberty interest if the Government does not provide her with a pre-detention hearing. Where an individual has not received a bond or redetermination hearing, “the risk of an erroneous deprivation [of liberty] is high.” Singh v. Andrews , No. 1:25-CV-00801, 2025 WL 1918679, at *7 (E.D. Cal. July 11, 2025). In Singh , the court noted that,

Petitioner has no criminal history and . . . has attended every check- in and court hearing . . . Nonetheless, ICE agents arrested [him] without a warrant as he exited a courtroom following his regularly scheduled immigration hearing. Petitioner has not since been provided any procedural safeguards to determine whether his detention is justified. Such is the case here. Leiva Flores has no criminal history anywhere in the world and has consistently attended her ICE check-ins, which occur once or twice a year. Dkt. No. 11 at 16. For this reason, “the probable value of additional procedural safeguards . . . is high.” Id. (citing A.E. v. Andrews , No. 1:25-cv-00107-KES-SKO, 2025 WL 1424382, at *5 (E.D. Cal. May 16, 2025)). The second Mathews factor therefore weighs in Leiva Flores’s favor.

iii. Burden on Respondents Versus Petitioner’s Interest

Finally, any countervailing government interest here is minimal. Respondents have identified no legitimate interest that would support detaining Leiva Flores without a pre-detention hearing. See Ortega v. Bonnar , 415 F. Supp. 3d 963, 970 (N.D. Cal. 2019) (finding the third factor favored petitioner, noting the government “has the power to take steps toward” re-arresting petitioner, but “its interest in doing so without a hearing is low”). Neither have Respondents asserted that the cost of providing a hearing would impose a financial or administrative burden. “In immigration court, custody hearings are routine and impose a ‘minimal’ cost.” Singh , 2025 WL 1918679, at *8 (citing Doe v. Becerra , No. 2:25-cv-00647-DJC-DMC, 2025 WL 691664, at *2 (E.D. Cal. Mar. 3, 2025)); see also Pinchi , 2025 WL 2084921, at *6 (“[I]t is likely that the cost to the government of detaining [petitioner] pending any bond hearing would significantly exceed the cost of providing her with a predetention hearing.”). In conclusion, the Mathews factors weigh in favor of Leiva Flores, and she has therefore shown a likelihood of success on the merits of her claim that she is entitled to a hearing before a neutral decisionmaker prior to any detention.

2. Substantive Due Process Even if Leiva Flores did not show a likelihood of success on her procedural due process claim, she has demonstrated a serious question going to the merits of her substantive due process claim. [1] Substantive due process requires that all forms of civil detention, including immigration detention, bear a “reasonable relation” to a non-punitive purpose. See Jackson v. Indiana , 406 U.S. 715, 738 (1972). The Supreme Court has recognized only two permissible non-punitive purposes for immigration detention: ensuring a noncitizen’s appearance at immigration proceedings and preventing danger to the community. Zadvydas v. Davis , 533 U.S. 678, 690-92 (2001). Leiva Flores was released on her own recognizance after an ICE agent found that she was neither a flight risk nor a danger to the community. Dkt. No. 3-2 at 7; Dkt. No. 11 at 8, 13. Additionally, Leiva Flores has no criminal record and has attended every scheduled ICE check-in. Dkt. No. 11 at 16. Respondents have not argued that Leiva Flores’s re-detention resulted from changed circumstances that show she is a flight risk or a danger to the community. Leiva Flores has therefore demonstrated at least a serious question as to whether her re-detention would violate her substantive due process rights by failing to serve a non-punitive purpose.

C. Irreparable Harm The Court next considers the second Winter factor and finds that Leiva Flores would likely suffer immediate and irreparable harm absent injunctive relief. Specifically, she would face “the risk of immediate re-detention by ICE, likely in violation of her constitutional rights and with potentially devastating consequences for her economic livelihood . . . and her health.” Pinchi , 2025 WL 2084921, at *6. This constitutes immediate and irreparable harm. “[D]eprivation of constitutional rights ‘unquestionably constitutes irreparable injury,’” Hernandez , 872 F.3d at 994- 95 (citing Melendres v. Arpaio , 695 F.3d 990, 1002 (9th Cir. 2012)), and “most courts hold that no further showing of irreparable injury is necessary,” Warsoldier v. Woodford , 418 F.3d 989, 1001- 02 (9th Cir. 2005).

D. Balance of Equities and Public Interest Because the party opposing the motion is the Government, the final two Winter factors merge. Nken , 556 U.S. at 435. Here, these factors weigh heavily in favor of granting a preliminary injunction. There is a strong public interest in “upholding procedural protections against unlawful detention” as well as “in the efficient allocation of the government’s fiscal resources,” Vargas v. Jennings , No. 20-CV-5785-PJH, 2020 WL 5074312, at *4 (N.D. Cal. Aug. 23, 2020) (citing Hernandez v. Sessions , 872 F.3d 976, 996 (9th Cir. 2017) (internal quotations omitted)), so this factor supports preliminary injunctive relief. And while the potential harm to Leiva Flores is significant, the “potential harm to the government is minimal.” Pinchi , 2025 WL 2084921, at *7. At most, the Government’s injury would be a short delay in detaining Leiva Flores, and despite its contention that it has a “compelling interest in the steady enforcement of its immigration laws,” Dkt. No. 10 at 19, it “cannot reasonably assert that it is harmed in any legally cognizable sense by being enjoined from constitutional violations,” Zepeda v. U.S. Immigr. & Nat. Serv. , 753 F.2d 719, 727 (9th Cir. 1983). The balance of hardships therefore tips sharply in favor of Leiva Flores. Accordingly, the final two Winter factors weigh in favor of a preliminary injunction.

III. CONCLUSION For the foregoing reasons, the Court hereby GRANTS Leiva Flores’s Motion for a Preliminary Injunction. Respondents are ENJOINED AND RESTRAINED from re-detaining Leiva Flores without notice and a pre-deprivation hearing before an Immigration Judge to evaluate whether her re-detention is warranted based on changed circumstances establishing Leiva Flores is a flight risk or a danger to the community. No security bond is required, as the government provides no evidence of costs it will incur due to Leiva Flores’s release. By December 3, 2025, the parties SHALL FILE a joint statement with a proposed case management schedule. IT IS SO ORDERED. Dated: November 19, 2025

A RACELI M ARTÍNEZ -O LGUÍN United States District Judge

Notes

[1] Because, as discussed infra , Leiva Flores has established that the balance of hardships tips sharply in her favor, a preliminary injunction is warranted when she establishes a serious question as to the merits of her Due Process Claims. See All. for the Wild Rockies , 865 F.3d at 1131-1132.