Santos Serrano: Why the Court Ordered Immediate Release

Introduction

ICE held Santos Serrano for more than six months without a custody hearing. He asked the federal court to release him. Judge Fernando M. Olguin granted that request because, on Serrano’s record, due process required notice and a hearing before detention. The order also required notice and a hearing before any re-detention under its terms.

Material Facts

The material facts were undisputed or treated as uncontested. ICE detained Serrano in December 2025 and charged him as removable under 8 U.S.C. § 1182(a)(6)(A)(i). An immigration judge later denied cancellation of removal. Serrano appealed to the Board of Immigration Appeals, and that appeal remained pending when the district court ruled. From his arrest through the decision—more than six months—he received no bond hearing or individualized custody determination. The order also recounted a 2022 arrest, four days in jail and participation in a diversion program. The record reflected long residence, community ties, no criminal convictions, and circumstances relevant to flight risk and danger, but no neutral decisionmaker had evaluated those factors.

Issue

The court examined whether Serrano’s circumstances required notice and a hearing before ICE detained him, and whether a later bond hearing would adequately remedy the missing process.

Parties’ Positions

Serrano argued that detention without a custody hearing violated due process and sought release. The government did not oppose a bond hearing but opposed release, asserting that he had a final removal order and had agreed to leave voluntarily. Serrano disputed that agreement and said he had appealed to the BIA. The district court did not resolve that removal-case dispute; it addressed detention only.

Governing Law

The court applied the Fifth Amendment’s Due Process Clause, as interpreted in Zadvydas v. Davis, 533 U.S. 678 (2001), which confirms that due process protections apply to all persons within the United States regardless of immigration status. To determine what process was owed, the court used the three-factor balancing framework from Mathews v. Eldridge, 424 U.S. 319 (1976): (1) the private interest affected; (2) the risk of erroneous deprivation of that interest and the probable value of additional or substitute safeguards; and (3) the government’s interest, including the function involved and the fiscal and administrative burdens that additional or substitute procedures would entail. The court also relied on Singh v. Holder, 638 F.3d 1196 (9th Cir. 2011), for the proposition that where substantial liberty interests are at stake, the government must prove by clear and convincing evidence that a noncitizen is a flight risk or danger to the community.

Reasoning

Working through the Mathews factors, the court found the first strongly favored Serrano. His long residence and community ties reinforced the substantial liberty interest already inherent in freedom from physical confinement. On the second factor, the court found the risk of erroneous deprivation high, particularly because Serrano had no criminal convictions and had never received any hearing at which his risk level was assessed. On the third factor, the court found no meaningful government interest in skipping a pre-detention hearing, noting that such hearings impose minimal administrative burden and that the government never argued that a pre-deprivation process would have created flight or safety risks. Balancing these factors, the court concluded that Serrano was entitled to notice and a hearing before being detained, not merely after the fact. Because that process was never provided, the court found his continued detention unlawful and ordered release rather than simply scheduling a bond hearing, explaining that a later hearing without immediate release would leave him detained without due process until that hearing occurred.

Exact Holding

Applying the Mathews test to Serrano’s circumstances, the court concluded that he was entitled to notice and a hearing before being detained. Because he had been detained without that process, it ordered immediate release.

Exact Disposition and Conditions

The court granted the habeas petition and ordered Serrano’s immediate release. It enjoined the government from re-detaining him without providing notice and a pre-deprivation hearing before a neutral decisionmaker at which the government bears the burden of proving by clear and convincing evidence that he is a flight risk or danger to the community. If re-detained within the district following proceedings in this case, Serrano may not be transferred out of the district except to execute a final removal order. As a separate prospective safeguard, the injunction required written notice and a meaningful opportunity to seek fear-based relief before any third-country removal; it did not decide removability or the pending BIA appeal. The government was required to file a notice of compliance within three days of the order and entry of judgment. The Second TRO application and request for counsel were denied as moot.

The removal appeal followed a separate path

The court said it lacked jurisdiction to review the immigration judge’s inadmissibility ruling or the government’s intention to remove Serrano. It directed him to seek review before the BIA, where his appeal was pending, and cited 8 U.S.C. § 1252’s separate route for judicial review of removal orders.