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UNITED STATES DISTRICT COURT 
SOUTHERN DISTRICT OF CALIFORNIA 
 
DONALD ANTONIO GUTIERREZ-
PANIAGUA, 
Petitioner, 
v. 
MARKWAYNE MULLIN, Secretary of 
the Department of Homeland Security; 
TODD BLANCHE, Acting Attorney 
General; TODD M. LYONS, Acting 
Director, Immigration and Customs 
Enforcement; JESUS ROCHA, Acting 
Field Office Director, San Diego Field 
Office; CHRISTOPHER LAROSE, 
Warden at Otay Mesa Detention Center, 
Respondents. 

 
ORDER GRANTING SECOND 
AMENDED PETITION FOR WRIT 
OF HABEAS CORPUS 
 
[ECF No. 21] 
 
Before the Court is Petitioner Donald Antonio Gutierrez -Paniagua (“Petitioner”)’s 
second amended petition for a writ of habeas corpus. ECF No. 21. For the reasons outlined 
below, the Court GRANTS the petition and ORDERS Petitioner’s immediate release. 
// 
// 
// 
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BACKGROUND 
I. Initial Habeas Proceedings 
This is Petitioner’s second time seeking habeas relief before this Court. Petitioner 
has been in immigration detention since May 2025. ECF No. 21, at 2. In November 2025, 
Petitioner filed a habeas petition arguing only that he was being wrongly detained without 
a bond hearing under 8 U.S.C. § 1225(b) , when his detention should be governed by 
§ 1226(a). See Gutierrez-Paniagua v. Noem et al , Case No. 3:25 -cv-03250- GPC-AHG, 
Dkt. No. 1. The petition included no information about any previous arrests or release. The 
Court found that § 1226(a) governed Petitioner’s detention and ordered Respondents to 
provide Petitioner with a bond hearing. See Gutierrez-Paniagua v. Noem et al , Case No. 
3:25-cv-03250- GPC-AHG, Dkt. No. 7, at 14. Per Rodriguez Diaz v. Garland, at a § 1226 
bond hearing the noncitizen bears the burden of showing that he is not a flight risk or danger 
to the community by a preponderance of the evidence. 52 F. 4th 1189, 1197 (9th Cir. 2022). 
Respondents provided Petitioner with a bond hearing on December 19, 2025. ECF 
No. 23-1, at 2. At the hearing, the Immigration Judge (“IJ”) denied bond based on a finding 
that Petitioner was subject to mandatory detention under 8 U.S.C. § 1226(c). Id. 
II. Additional Facts Now Before the Court 
In April 2026, Petitioner filed a new petition for a writ of habeas corpus in this Court. 
ECF No. 1. This Court subsequently appointed the Federal Defenders to represent 
Petitioner. ECF No. 16. The Federal Defenders have now filed a second amended petition 
for a writ of habeas corpus on Petitioner’s behalf. ECF No. 21. 
 Both the Federal Defenders and Respondents have presented the Court with new 
information regarding Petitioner’s immigration background that was not addressed in 
Petitioner’s initial habeas proceedings. In July 2022, Petitioner came to the United States 
to seek asylum. ECF No. 1, at 3. Upon entry, Petitioner was immediately detained by 
Respondents. Id. Respondents released Petitioner four days later , and Petitioner went to 
live with his brother, a United States citizen, in Florida. Id. 
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 In May 2025, Petitioner was arrested for burglary, illegal use of credit cards, and 
petit theft. ECF No. 23, at 2. The day after Petitioner’s arrest, he was taken into immigration 
custody directly from the jail. Id.; ECF No. 23-1, at 6. Before being taken into immigration 
custody, Petitioner did not receive any written notification of revocation of his parole, nor 
was he provided with a hearing. ECF No. 21, at 6. Petitioner was not formally charged with 
the crimes for which he was arrested. ECF No. 24, at 3-4. 
These underlying facts —wherein Petitioner has been (1) previously detained by 
Respondents, (2) released by Respondents, (3) arrested but not charged for or convicted of 
theft and burglary, and (4) re-detained by Respondents without a hearing—raise several 
distinct legal issues, none of which were presented to the Court by either Petitioner or 
Respondents during Petitioner’s previous habeas proceedings in 2025. 
III. Procedural Posture 
 On December 12, 2025, this Court ordered Respondents to provide Petitioner with a 
§ 1226 hearing, which Respondents provided on December 19, 2025. ECF No. 23-1, at 2. 
At the hearing, the IJ found that Petitioner was ineligible for bond on the grounds that he 
is in mandatory detention under § 1226(c). ECF No. 23-1, at 2. 
On January 6, 2026, Petitioner’s asylum case was denied, and he was ordered 
removed. ECF No. 21, at 3. Petitioner has appealed both his denial of asylum relief and his 
bond denial to the Board of Immigration Appeals (“BIA”). ECF No. 23, at 2. Those appeals 
remain pending. Id. Thus, there is no administratively final order of removal at this time. 
ECF No. 23, at 2. 
 Petitioner now seeks relief on grounds that were not presented to the Court in 2025. 
Namely, Petitioner argues that Respondents violated the Administrative Procedures Act 
and Petitioner’s due process rights by improperly revoking Petitioner’s parole witho ut 
notice or a hearing. ECF No. 21, at 4 -8. Petitioner also argues that Petitioner’s prolonged 
detention—now over one year—violates the due process clause of the Fifth Amendment. 
Id. at 8-14. Petitioner seeks immediate release from custody. Id. at 15. 
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 Respondents oppose on the grounds that (1) Petitioner is lawfully detained under 8 
U.S.C. 1226(c) and (2) Petitioner must first exhaust his administrative remedies before 
bringing his claims before this Court. ECF No. 23, at 2-6. 
DISCUSSION 
I. Exhaustion 
Habeas claims are generally accompanied by a prudential exhaustion requirement. 
Hernandez v. Sessions, 872 F.3d 976, 988 (9th Cir. 2017) (“The exhaustion requirement is 
prudential, rather than jurisdictional, for habeas claims”). A district court may require 
prudential exhaustion when: 
(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. 
Id. (quoting Puga v. Chertoff, 488 F.3d 812, 815 (9th Cir. 2007)). 
When a petitioner does not exhaust prudentially required administrative remedies, 
the district court “ordinarily should either dismiss the petition without prejudice or stay the 
proceedings until the petitioner has exhausted remedies.” Id. (quoting Leonardo v. 
Crawford, 646 F.3d 1157, 1160 (9th Cir. 2011) ). However, a court may waive the 
prudential exhaustion requirement if: (1) “ administrative remedies are inadequate or not 
efficacious”; (2) “ pursuit of administrative remedies would be a futile gesture ”; ( 3) 
“irreparable injury will result”; or (4) “the administrative proceedings would be 
void.” Laing v. Ashcroft, 370 F.3d 994, 1000 (9th Cir. 2004). 
A. The Puga Factors Do Not Require Prudential Exhaustion 
Under these circumstances, it does not appear that the Puga factors weigh in favor 
of requiring prudential exhaustion. 
Agency expertise is not necessary to generate a proper record and reach a proper 
decision on the questions now before the Court . The only question before the BIA that is 
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relevant to the current petition is whether the IJ properly denied bond by finding that 
Petitioner is subject to mandatory detention under § 1226(c). Thus, “an administrative 
appellate record is not necessary to resolve the purely legal question[] presented by 
[Petitioner’s] challenge to” the IJ’s conclusion that Petitioner is detained under § 1226(c). 
Hernandez v. Sessions, 872 F.3d 976, 989 (9th Cir. 2017); see also Tiboko-Tifuh v. Noem 
et al., No. 26-CV-1215-JO-DEB, 2026 WL 1603795, at *3 (S.D. Cal. June 4, 2026) (“[T]he 
Court is doubtful that agency expertise is necessary to resolve Petitioner’s challenge to the 
bond determination[.]”). 
Next, it does not appear that relaxation of the requirement in this circumstance would 
encourage deliberate bypass of the administrative scheme in the future. Petitioner’s 
situation is unique. In his first habeas petition, neither Petitioner’s counsel nor Respondents 
addressed Petitioner’s prior detention and release, nor did Petitioner’s counsel raise 
essential and potentially dispositive due process arguments regarding Petitioner’s 
revocation of parole. Petitioner was then denied bond at a hearing that li kely would not 
have occurred had Petitioner’s counsel appropriately argued Petitioner’s case. The bond 
was subsequently denied on grounds not a rgued by Respondents before this Court, who 
insisted that Petitioner was subject to detention under § 1225(b), not § 1226(c). Petitioner 
now seeks to remedy an alleged constitutional violation that occurred in May 2025 but has 
not yet been properly raised before this Court. Thus, Petitioner’s unique situation will not 
encourage deliberate bypass of the administrative scheme by future petitioners. 
Lastly, it is not clear that administrative review will allow the agency to correct its 
own mistakes and preclude the need for judicial review. Indeed, the narrow question before 
the BIA on appeal is whether the IJ properly denied bond by finding Petitione r subject to 
mandatory detention under § 1226(c). However, the issues highlighted by the petition 
before this Court point to a larger concern: that the bond hearing itself was the result of 
erroneous legal arguments from both Petitioner’s previous counsel and Respondents, 
which led this Court to order a § 1226(a) bond hearing when an entirely different remedy 
was likely appropriate due to the constitutional violations at play. This broader question is 
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not currently before the BIA, and the BIA review of the IJ’s bond determination will not 
correct the larger legal errors that have clouded Petitioner’s detention and habeas 
proceedings over the past thirteen months. 
Accordingly, the Puga factors do not counsel that prudential exhaustion is required. 
Petitioner is not required to exhaust his appeal to the BIA before presenting his arguments 
to this Court. 
II. Petitioner Is Not Subject to Mandatory Detention Under § 1226(c) 
Respondents further argue that Petitioner is lawfully detained under § 1226(c)(1)(E). 
ECF No. 23, at 2 -3. As discussed below, looming due process violations undermine the 
legality of Petitioner’s current immigration detention under any statute. Even so, the Court 
will briefly address Respondents’ § 1226(c) argument. 
Section 1226(c)(1)(E)—also known as the Laken Riley Act —requires detention of 
an inadmissible noncitizen who is “charged with, [or] is arrested for . . . burglary [or] 
theft[.]” 8 U.S.C. § 1226(c)(1)(E). Respondents note that Petitioner was taken into 
immigration custody after being arrested for burglary, illegal use of credit cards, and petit 
theft. ECF No. 23, at 2. Thus, because Petitioner was arrested for burglary and theft —
crimes outlined in § 1226(c)(1)(E) —Respondents argue that Petitioner is now lawf ully 
subject to mandatory detention. ECF No. 23, at 2-3. 
Petitioner counters that the charges against Petitioner were never formally filed. ECF 
No. 24, at 4-5. In support, Petitioner provides the Case Information from the incident which 
describes each charge against Petitioner as “No Action,” which means that th e State 
Attorney’s Office declined to prosecute the case. ECF No. 24 , at 4 (citing ECF No. 24 -1, 
at 2; Domestic Assistance Response Team Brochure, Miami-Dade State Attorney’s Office 
at https://miamisao.com/wp-content/uploads/2020/10/dart-brochure.pdf (defining the term 
no-action)). Because Petitioner was not formally charged with burglary or theft, Petitioner 
argues that § 1226(c)(1)(E) does not require his mandatory detention. 
The Court agrees with Petitioner. “[T]o alleviate due process concerns where a non-
citizen’s detention is based on an arrest or charges that were dismissed ‘courts have 
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construed the Laken Riley Act to apply only where an individual is currently charged with 
or arrested for the enumerated crimes, and concluding mandatory detention is not required 
when charges are never filed.’” Makhlouf v. Warden, California City Corr. Ctr., No. 1:26-
CV-03455 (VC), 2026 WL 1431056 , at *2 (E.D. Cal. May 21, 2026) (quoting Singh v. 
Chestnut, No. 1:26-CV-00546-DJC-AC, 2026 WL 266021, at *2 (E.D. Cal. Feb. 2, 2026)); 
see also Mendoza v. Mullin et al., No. 26-CV-2825 JLS (AHG), 2026 WL 1507832, at *2 
(S.D. Cal. May 29, 2026) ; Gopal B. v. Albarran , No. 1:26 -CV-01083-TLN-CKD, 2026 
WL 504736, at *3 (E.D. Cal. Feb. 24, 2026) ; Flores Martines v. Mattos , No. 2:26 -CV-
00606-ART-MDC, 2026 WL 1362529, at *6 (D. Nev. May 15, 2026); Helbrum v. Williams 
Olson, No. 4:25 -CV-00349-SHL-SBJ, 2025 WL 2840273 , at *6 (S.D. Iowa Sept. 30, 
2025). 
While Respondents provide a DHS report from the day after Petitioner’s arrest to 
show that Petitioner was arrested for the identified crimes, ECF No. 23-1, at 7, Respondents 
offer no information as to whether the charges were pursued or dropped. From the record, 
it appears as though the Petitioner was not formally charged with burglary or theft. Thus, 
Petitioner is not subject to mandatory detention under § 1226(c). See Mendoza, 2026 WL 
1507832, at *2. 
III. Petitioner’s Detention Violates Due Process 
Petitioner argues that his re-detention without notice or a chance to be heard violated 
his Fifth Amendment due process rights. ECF No. 21, at 4-8. 
Under the Due Process Clause of the Fifth Amendment, no person shall be “deprived 
of life, liberty, or property, without due process of law.” U.S. Const. Amend. V. Indeed, 
“[f]reedom from imprisonment—from government custody, detention, or other forms of 
physical restraint —lies at the heart of the liberty that [the Due Process] Clause 
protects.” Zadvydas v. Davis , 533 U.S. 678, 690 (2001) . Due process rights apply to 
noncitizens, including those whose presence in the United States is unlawful. Id. at 693. 
As applied to cases like Petitioner’s: “even when ICE has the initial discretion to 
detain or release a noncitizen pending removal proceedings, after that individual is released 
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from custody [he] has a protected liberty interest in remaining out of custody.” Pinchi v. 
Noem, 792 F. Supp. 3d 1025 , 1032 (N.D. Cal. 2025). See also Doe v. Becerra, No. 2:25-
CV-00647-DJC-DMC, 2025 WL 691664, at *4 (E.D. Cal. Mar. 3, 2025); Padilla v. U.S. 
Immigr. & Customs Enf't, 704 F. Supp. 3d 1163, 1172 (W.D. Wash. 2023); Ortiz Donis v. 
Chestnut, No. 1:25 -CV-01228-JLT-SAB, 2025 WL 2879514 , at *11 (E.D. Cal. Oct. 9, 
2025). In fact, the government’s initial release of an 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-06695-AMO, 2025 WL 
2430609, at *2 (N.D. Cal. Aug. 22, 2025) (quoting Morrissey v. Brewer, 408 U.S. 471, 482 
(1972)). An initial release from ICE custody further reflects “a determination by the 
government that [an individual is] neither a flight risk nor a danger to the community.” 
Pinchi, 792 F. Supp. 3d at 1034; Salcedo Aceros v. Kaiser , No. 25 -CV-06924-EMC 
(EMC), 2025 WL 2637503, *7 (N.D. Cal. Sept. 12, 2025). Thus, DHS may generally not 
re-arrest a previously released noncitizen “absent a change in circumstances.” Salcedo 
Aceros 2025 WL 2637503 , at *1 (citing Panosyan v. Mayorkas , 854 F. App ’x 787, 788 
(9th Cir. 2021); Saravia v. Sessions, 280 F. Supp. 3d 1168, 1197 (N.D. Cal. 2017)). 
Here, because Petitioner was detained and then released from ICE custody in 2022, 
he maintained a protected liberty interest in remaining out of custody. The Court must next 
determine “what process is due.” Morrissey, 408 U.S. at 481. 
“The constitution typically ‘requires some kind of a hearing before the State deprives 
a person or liberty or property.’” G.S. v. Bostock , No. 2:25 -CV-01255-JNW-TLF, 2025 
WL 3014274 (W.D. Wash. Oct. 8, 2025), report and recommendation adopted sub nom. 
G.S. v. Bostock, No. 2:25-CV-01255-JNW-TLF, 2025 WL 3014035 (W.D. Wash. Oct. 28, 
2025) (quoting Zinermon v. Burch, 494 U.S. 113, 127 (1990) (emphasis in original)). To 
determine what procedures are required by due process, the Court evaluates the three-part 
test set forth in Mathews v. Eldridge , 424 U.S. 319, 334 -335 (1976). See Ortiz Donnis , 
2025 WL 2879514, at *12. Under Mathews, a court must consider (1) “the private interest” 
at stake, (2) “the risk of an erroneous deprivation” without additional procedures and “the 
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probable value . . . of additional or substitute procedural safeguards,” and (3) the 
“Government's interest, including the function involved and the fiscal and administrative 
burdens imposed by the additional procedures.” 424 U.S. at 335. 
As to the first Mathews factor, Petitioner has a significant private interest in his 
continued liberty. Thus, this factor favors Petitioner. See Salcedo, 2025 WL 2637503, *12; 
Ortiz Donis, 2025 WL 2879514, at *12; Pinchi, 792 F. Supp. 3d at 1034-35. 
Turning to the second Mathews factor, “it is clear that there is a significant risk that 
the government will erroneously deprive [Petitioner] of that liberty interest if it does not 
provide [him] with a pre -detention hearing.” Pinchi, 792 F. Supp. 3d at 1035. Where, as 
here, petitioner has not received any hearing, “‘the risk for erroneous deprivation [of 
liberty] is high’ because neither the government nor [Petitioner] has had an opportunity to 
determine whether there is any valid ba sis for [his] detention .” Id. (quoting Singh v. 
Andrews, 803 F. Supp. 3d 1035, 1046 (E.D. Cal. 2025)). Further, courts have noted that 
“civil immigration detention must be ‘nonpunitive in purpose’ and bear a ‘reasonable 
relation’ to the authorized statutory purposes of preventing flight and danger to the 
community.” G.S., 2025 WL 3014274, at *8. By releasing Petitioner in 2022, immigration 
officers determined that he was neither a flight risk nor a danger to his community. See id.; 
Ortiz Donis, 2025 WL 2879514, at *1; Pinchi, 792 F. Supp. 3d at 1034. Accordingly, this 
factor also favors Petitioner. 
Respondents do not argue that Petitioner’s May 2025 arrest for theft and burglary 
constitutes a sufficient change in circumstance to justify Petitioner’s re -detention without 
notice or a hearing. Any such argument would be unsuccessful. See Vargas Monsalve v. 
Chestnut, No. 1:26-CV-00626-DAD-CKD, 2026 WL 242066, at *2 (E.D. Cal. Jan. 29, 
2026) (“[R]espondents provide no legal authority in support of the proposition that 
petitioner's DUI arrest justifies re -detaining him without prior notice or a pre -detention 
hearing. . . . Accordingly, the court . . . concludes that petitioner's detention violates due 
process.”); Elias C.M. v. Warden of Golden State Annex Det. Facility, No. 1:25-cv-02043-
TLN-EFB, 2026 WL 127612, at *3 (E.D. Cal. Jan. 16, 2026) (finding that the petitioner 
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who was released on parole and then re-detained without prior notice or a hearing because 
he was arrested for misdemeanor spousal battery had a protected liberty interest and that 
the arrest did not alter the Mathews analysis); Rodriguez Cruz v. Warden of the Golden 
State Annex, No. 1:26-CV-00348 DAD SCR, 2026 WL 453561, at *2 (E.D. Cal. Feb. 18, 
2026), report and recommendation adopted , No. 1:26 -CV-00348-DAD-SCR, 2026 WL 
564588 (E.D. Cal. Feb. 27, 2026) (finding re -detention violated due process where 
petitioner was arrested for a DUI but it was “undisputed [petitioner] was not convicted” 
and “undisputed that petitioner did not receive prior notice or a hearing before his re -
detention.”). Thus, Petitioner’s arrest does not alter the Mathews analysis when considering 
whether Petitioner’s re-detention without notice or a hearing violated Petitioner’s protected 
liberty interest. 
Finally, the Government “has failed to show any countervailing interest against 
providing a pre -detention hearing.” G.S. v. Bostock , 2025 WL 3014274, at *9; Salcedo 
Aceros, 2025 WL 2637503, at *12. Indeed, “in immigration court, custody hearings are 
routine and impose a minimal cost.” Singh, 2025 WL 1918679, at *8 (internal quotation 
marks and citation omitted). There is also no concern that a hearing will delay or obstruct 
Respondents efforts to remove Petitioner, as Petitioner has already been placed in f ull 
removal proceedings and ordered removed—an order Petitioner has appealed. ECF No. 23, 
at 2; ECF No. 23 -1, at 9-12. See also G.S. v. Bostock, 2025 WL 3014274, at *9; Salcedo 
Aceros, 2025 WL 2637503, at *12. In sum, the Government's interest in detaining 
Petitioner without a hearing is low. Singh, 2025 WL 1918679, at *8. 
Each of the Mathews factors favors Petitioner. Thus, Petitioner was entitled to a pre-
deprivation hearing before a neutral decisionmaker where the government bore the burden 
of demonstrating by clear and convincing that re-detention was necessary to prevent danger 
to the community or flight. Pinchi, 792 F. Supp. 3d at 1038; see also Ortiz Donis, 2025 
WL 2879514, at *15. Respondents provided Petitioner with no such hearing . Thus, the 
Court concludes that Petitioner’s detention violates his due process rights. Perez v. Noem, 
No. 3:25 -CV-03777-CAB-JLB, 2026 WL 102643, at *2 (S.D. Cal. Jan. 14, 2026) 
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(“Petitioner’s sudden re -detention without notice, an individualized determination, or an 
opportunity to be heard violates the Due Process Clause.”). 
In light of such a violation, Petitioner’s release from custody is appropriate. See, e.g., 
Quiroz v. Larose, No. 26-CV-866 JLS (DEB), 2026 WL 673822, at *3 (S.D. Cal. Mar. 10, 
2026); Aliyev v. LaRose , No. 3:26 -CV-01119-CAB-JLB, 2026 WL 699818 , at *3 (S.D. 
Cal. Mar. 12, 2026) ; Devilmar v.LaRose , No. 3:26-CV-01748-JES-MSB, 2026 WL 
1042439, at *2 (S.D. Cal. Apr. 17, 2026); Perez, 2026 WL 102643, at *2.1 
Respondents lament that Petitioner is seeking a “second bite of the habeas apple.” 
ECF No. 23, at 2. However, Respondents provide no authority or argument as to why 
Petitioner should be prohibited from raising the constitutional arguments now before the 
Court. Further, Respondents’ argument neglects to acknowledge Respondents’ own role in 
the incomplete factual background provided to the Court during Petitioner’s prior habeas 
proceedings. Thus, the Court gives this point little weight. 
CONCLUSION 
For the foregoing reasons, the Court ORDERS as follows: 
• The Court GRANTS Petitioner’s second amended petition for writ of habeas 
corpus, ECF No. 21. 
• The Court ORDERS Respondents to immediately release Petitioner from 
custody under the same conditions of release that existed immediately prior 
to his May 28, 2025, detention, if any. 
• Respondents SHALL NOT re-arrest or re-detain Petitioner absent compliance 
with constitutional protections, which include, at a minimum, pre-deprivation 
notice of at least seven days before a pre -deprivation hearing at which the 
government will bear the bur den of demonstrating by clear and convincing 
 
1 Having reached this conclusion on Petitioner’s parole-based due process claims, the Court 
declines to reach the merits of Petitioner’s prolonged detention claims. 
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evidence that Petitioner is likely to flee or pose a danger to the community if 
not detained. 
• The Clerk of Court shall close the case. 
IT IS SO ORDERED. 
Dated: June 17, 2026 
 
Case 3:26-cv-02512-GPC-JLB Document 25 Filed 06/17/26 PageID.<pageID> 
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