CLAYTON GERALD HERMAN v. DHS ET AL (2026)

ORDER GRANTING PETITION AND ISSUING A WRIT OF HABEAS CORPUS

Petitioner Clayton Gerald Herman, a Canadian national, is in the custody of the Department of Homeland Security (“DHS”) at the Adelanto Detention Facility. In 2002, Petitioner entered the United States on a B-2 visitor's visa. Since that time, Petitioner has remained in the United States and primarily resided in Ojai, California, where he has worked as a handyman and developed deep ties in the community. For thirteen years, Petitioner lived with his long-time partner, a United States citizen, who passed away in December 2021.

In 2022, Petitioner was arrested by Customs and Border Protection (“CBP”) agents in Montana. He was issued a Notice to Appear (“NTA”), placed in removal proceedings, and released on his own recognizance. For the next several years, Petitioner attended his immigration court hearings and complied with his conditions of supervision. In May 2025, during a routine check-in, Immigration and Customs Enforcement (“ICE”) officers required Petitioner to wear a VeriWatch monitoring device. On October 9, 2025, Petitioner appeared as instructed for a check-in at the ICE office in Camarillo, California. ICE officers accused Petitioner of violating his VeriWatch supervision conditions, arrested him, and transported him to the Adelanto Detention Facility.

On April 16, 2026, an Immigration Judge (“IJ”) conducted a bond hearing pursuant to Rodriguez v. Holder, No. 2:07-cv-03239-TJH-RNB (C.D. Cal. Aug. 6, 2013), and found that DHS had met its burden to show that Mr. Herman is a flight risk by “clear and convincing” evidence. Several days later, on April 20, 2026, Petitioner filed the instant habeas petition pro se. He was subsequently appointed counsel. In his petition and reply brief, Petitioner alleges that his arrest and detention violate due process and the Eighth Amendment's prohibition on cruel and unusual punishment.

For the reasons that follow, the Court finds that the Government violated Petitioner's due process rights by re-detaining him without notice or an adequate opportunity to be heard. The Court also finds that the IJ abused its discretion in finding Petitioner a flight risk by “clear and convincing” evidence and that there is no justification for Petitioner's ongoing confinement. Accordingly, the Court grants the Petition and issues a writ of habeas corpus requiring Mr. Herman's immediate release, subject to appropriate conditions of supervision.

I. FACTUAL AND PROCEDURAL HISTORY

Petitioner Clayton Gerald Herman is a native and citizen of Canada. On June 17, 2002, he entered the United States on a B-2 visitor's visa. Dkt. 17-1 at 1. He has remained in the United States since then. Id.

For most of his time in the United States, Petitioner has resided in Ojai, California. Id. He has developed deep ties in the Ojai community. Petitioner has been steadily employed as a laborer and handyman and has been active in the local arts scene, including acting in community theater productions. Id. at 2. He has also developed close relationships with friends and neighbors in the Ojai area. Id.

For thirteen years, Petitioner resided with his partner, Kathleen Marie Francis, a United States citizen, in Ojai. Id. The couple considered themselves to be married by common law. They remained together until her death in December 2021. Id. Grieving the loss of his partner, Petitioner moved to Montana to live with close friends. Id.

On October 12, 2022, Petitioner was arrested by Customs and Border Protection agents in Montana. Id. He was issued a Notice to Appear placing him in removal proceedings and transferred to the Northwest Detention Center in Tacoma, Washington. Id. After six days in detention, ICE released Petitioner on his own recognizance. Id. Petitioner complied with all conditions of release, including attending regular check-ins with ICE. Id. Due to Petitioner's record of compliance over several years, ICE reduced his reporting requirements to a yearly check-in. Id. Petitioner also attended his immigration court hearings at the Immigration Court in Salt Lake City, Utah. Id. at 3.

Petitioner subsequently moved back to Ojai and, at his request, his supervision was transferred to the ICE office in Camarillo, California. Id. In May 2025, Petitioner reported as instructed to the ICE office in Camarillo. ICE officers required Petitioner to wear a VeriWatch monitoring device, which Petitioner describes as a “digital check-in and surveillance wrist monitor.” Id. Petitioner states that the “VeriWatch requires biometric confirmation once a day in a two-hour window” and “will beep continuously and obnoxiously until it recognizes your face.” Id.¹

Petitioner reports that the VeriWatch “device was glitchy from the start.” Id. at 4. Because the device connects through cellular towers, the device would frequently drop connections in the Ojai area, where cell reception is poor. Id. Petitioner also received multiple troubleshooting calls from the contractor operating the VeriWatch device late at night. Id. On other occasions, the contractor would call to request that Petitioner re-submit a face photo, which he subsequently did. Id. Despite his difficulties with the VeriWatch device, Petitioner states that he is not aware of any cases in which he failed to comply with any VeriWatch requirements, aside for one instance when—due to his confusion about the date of a scheduled phone check-in—he was at the wrong location when he received a scheduled call from the contractor. Id. at 5. Aside from this one instance, Petitioner avers he complied with all office visits, home visits, and check-ins on the VeriWatch. Id.

On October 9, 2025, Petitioner reported as instructed for a check-in with the ICE office in Camarillo. Id. ICE officers arrested Petitioner and later transferred him to the Adelanto Detention Facility, where he remains today. Id. Prior to his arrest and detention, the ICE officers did not provide him a hearing to explain why he should not be detained. Id.

Petitioner states that the conditions at Adelanto are “abysmal.” Id. at 6. The “plumbing is often broken” and there is “a rampant black mold problem that has not been fixed.” Id. The living quarters are cramped and detainees sleep on “rubber mats that are never sterilized between use.” Id. While Petitioner was in relatively good health before his detention, his health has deteriorated significantly during his time at Adelanto. He has developed a serious sinus infection, a skin infection, and painful toothaches that have gone untreated for months, despite his repeated requests for care. Id. at 7.

While at Adelanto, Petitioner has submitted several letters seeking to obtain information from ICE regarding his alleged supervision violations. In an undated letter to the DHS Office of the Principal Legal Adviser, Petitioner explains that, during a February 12, 2026, court hearing, he “was instructed by IJ Patrick D. Barret to write to you” to obtain a “transcript” of his alleged supervision violations. Dkt. 17-1 at 21. Later, in an undated letter to IJ Barret, Petitioner indicated that he had received a notice of custody re-determination hearing scheduled for April 16, 2026. Id. at 22. Petitioner states that he has made five formal requests for information about his supervision violations: orally at three court hearings on January 21, February 12, and March 25, 2026; and twice in written requests submitted through the “prison in-house mailing system” and “once in court” on March 25, 2026. Id. He also indicates that he had made multiple inquiries with his ICE “case-officers,” but had been given different responses about whether they had access to the information. Id. Petitioner states that, on April 3, 2026, ICE officers told him to stop asking for the VeriWatch information and that “under no circumstances would they ever assist me in such a way without the direct order from a judge.” Id.

On April 16, 2026, Petitioner appeared in Immigration Court for his bond hearing conducted pursuant to Rodriguez v. Holder, No. 2:07-cv-03239-TJH-RNB (C.D. Cal. Aug. 6, 2013). Petitioner proceeded pro se. After receiving documentary evidence, including letters from Petitioner's friends and sponsor, and hearing testimony from Petitioner, the Immigration Judge (“IJ”) denied Petitioner release on the ground that DHS had met its burden to demonstrate that he is a flight risk. Dkt. 6-3 at 1 (bond order); Dkt. 19 (digital audio recording of hearing). Petitioner reserved appeal.

Petitioner filed the instant habeas petition, pro se, on April 20, 2026. Dkt. 1. Petitioner raises several challenges to his ongoing detention, including that there is no justification for his arrest or detention because he had complied with his conditions of release, he is being subjected to indefinite detention, and the “grossly inhumane conditions” at Adelanto constitute cruel and unusual punishment. Id. at 6-7. He requests that the Court order his immediate release. Id. at 7. The case was initially assigned to Chief District Judge Dolly M. Gee and referred to the undersigned Magistrate Judge. Dkt. 2. On April 22, 2026, this Court referred the Petition to the Federal Public Defender to consider whether to seek appointment of counsel. Dkt. 5.

Respondents filed their Answer on April 28, 2026. Attached to Respondents' Answer is a declaration from ICE Deportation Officer Regelio Torres that includes information about Petitioner's immigration history and a summary of his alleged supervision violations, including the dates and nature of the violations. Dkt. 6-1 at 1-2 (listing fifteen (15) “Tracker Missed Call Back,” two (2) missed biometrics check-in, one (1) biometric match failure, and one (1) missed virtual home visit). After the Court appointed Craig H. Durham to represent Petitioner and granted an extension of time for his reply brief, Petitioner filed his reply brief on May 26, 2026. Dkt. 17. The reply attaches a declaration from Petitioner, as well as the letters of support that were submitted at Petitioner's bond hearing and the letters Petitioners sent requesting his VeriWatch data. Dkt. 17-1.

On May 26, 2026, this Court issued an order requiring Respondents to lodge a copy of the digital audio recording of Petitioner's April 20, 2026, bond hearing, and set a hearing on June 3, 2026. Dkt. 18. Counsel for the parties appeared for the hearing on June 3, 2026. The parties subsequently consented to proceed before the undersigned Magistrate Judge. Dkt. 22, 23. On June 5, 2026, Chief Judge Gee approved the parties' consent and the case was reassigned to the undersigned Magistrate Judge for final disposition. Dkt. 25.

II. DISCUSSION

The Court construes the Petition (which was filed by Petitioner pro se), and as clarified by Petitioner's reply brief (which was filed with the assistance of appointed counsel), to raise three principal claims: (1) Petitioner's re-detention without pre-deprivation notice or a hearing violates due process (Dkt. 17 at 13); (2) Petitioner's ongoing detention is unlawful because he is not a flight risk (Dkt. 1 at 7); and (3) Petitioner is entitled to release because the conditions at Adelanto amount to cruel and unusual punishment in violation of the Eighth Amendment (Dkt. 17 at 16-18). Respondents argue that Petitioner's detention is lawful because he received all the process he is due at his Rodriguez bond hearing and that the IJ permissibly determined that he is a flight risk. Dkt. 6 at 4; Dkt. 19.

For the reasons that follow, the Court concludes that the Government violated Petitioner's due process rights by re-detaining with notice or a hearing. The Court further concludes it has jurisdiction to review the IJ's bond determination and that the IJ abused its discretion by finding that Petitioner is a flight risk by “clear and convincing” evidence. Because there is no justification for Petitioner's ongoing confinement, the Court grants the Petition and orders Petitioner's immediate release, subject to appropriate conditions of supervision.

A. Petitioner was Denied Pre-Deprivation Notice and an Opportunity to Be Heard

The Court begins by addressing Petitioner's procedural due process claim that “the Government is holding him unlawfully because it detained him after releasing him on his own recognizance without first giving him an opportunity to challenge what he contends is the false basis for his detention.” Dkt. 17 at 13.

Petitioner observes that “[c]ourts in this district have repeatedly held that non-citizens are entitled to a pre-deprivation hearing under the Fifth Amendment.” Id. at 14 (collecting cases). See also Kingsley v. Lyons, No. 26-cv-02632-KK-DSR, 2026 WL 1465144, at *4 n.2 (C.D. Cal. May 22, 2026) (concluding that the petitioner was entitled to a pre-deprivation hearing where it “does not appear ICE informed Petitioner of these alleged violations or provided him an opportunity to dispute them before re-detaining him”); Espinoza Palacios v. Hermosillo, No. 2:26-cv-491-JNW, 2026 WL 686138, at *8 (W.D. Wash. Mar. 11, 2026) (same, where “some Petitioners were purportedly re-detained for violating conditions of their release by failing to check in through the ISAP app ․ [b]ut based on the record, it appears that the app may not have functioned correctly at times, despite Petitioners' efforts to check in”); Singh v. Warden of Golden State Annex, No. 1:26-cv-01406-KES-HBK, 2026 WL 1108233, at *1 (E.D. Cal. Apr. 23, 2026) (same, where “the Form I-213 attached to the petition states that petitioner had ‘multiple violations’ of the Intensive Supervision Appearance Program ‘for either completing check-ins outside of the designated area or [for not completing] check-ins on time,’ ” but “it also explains that petitioner successfully completed each check-in within twenty-four hours”).

Consistent with this authority, this Court has concluded in multiple cases that procedural due principles require that—when the Government seeks to re-detain a noncitizen previously released under Section 1226(a)—it must afford the noncitizen notice and a hearing to determine if there have been changed circumstances demonstrating that their detention is now justified. See, e.g., Singh v. Warden of the Desert View Facility, No. 5:26-cv-02931-MBK, 2026 WL 1628698, at *2 (C.D. Cal. June 5, 2026); Hernandez v. Janecka, No. 5:26-cv-00710-MBK, 2026 WL 734524, at *7 (C.D. Cal. Mar. 4, 2026). The Court therefore concludes that Petitioner's sudden re-detention—without notice or a meaningful opportunity to be heard why he should not be detained—violated due process.

However, Petitioner is only entitled to relief if he demonstrates that he was prejudiced by this procedural due process violation. See Singh v. Holder, 638 F.3d 1196, 1205 (9th Cir. 2011) (finding that the petitioner was entitled to habeas relief where he was prejudiced by an IJ's application of the incorrect standard of proof at his bond hearing because it “might” “have affected the outcome of the bond hearing”); Prieto-Romero v. Clark, 534 F.3d 1053, 1066 (9th Cir. 2008) (affirming denial of habeas petition where the petitioner “cannot demonstrate prejudice” from alleged due process violation) (citing Getachew v. INS, 25 F.3d 841, 845 (9th Cir.1994)). Petitioner was afforded a Rodriguez bond hearing six months after he was taken into custody, at which the Government was required to justify his ongoing detention by “clear and convincing” evidence. Dkt. 6-3 at 1. The procedures for this hearing were substantively similar to the pre-deprivation hearing to which Petitioner claims he was entitled. See Dkt. 17 at 15 (seeking a hearing before a neutral decisionmaker at which he could show he did not violate his conditions of release and is not a flight risk). The Rodriguez hearing therefore arguably cured any prejudice from the denial of pre-deprivation process. See Aguilar v. Semaia, No. 5:26-cv-00023-MCS-SSC, 2026 WL 166906, at *4 (C.D. Cal. Jan. 16, 2026) (denying release, despite petitioner's entitlement to a pre-deprivation hearing, because that the petitioner was afforded a Rodriguez bond hearing that minimized the risk of an erroneous deprivation).

However, as Petitioner observes, courts in this District have concluded that a post-deprivation bond hearing ordinarily “is not an adequate substitute” for a pre-deprivation hearing. Dkt. 17 at 15. See Orellana-Rivera v. J. Johnson, 5:26-cv-2116-HDV-AJR, Dkt. 18 at 2 (C.D. Cal. May 14, 2026) (observing that an “increasing wave of district courts have concluded, a post-hoc bond hearing” is insufficient to remedy the denial of a petitioner's right to pre-deprivation process and ordering the petitioner's release); Mumaev v. Semaia, No. 5:25-cv-03409-FLA-MAR, 2026 WL 530765, at *6 (C.D. Cal. Feb. 20, 2026) (“The Immigration Court's decision to deny bond six months after Petitioner was arrested and re-detained, however, cannot support Petitioner's continued detention when the underlying arrest, revocation of parole, and re-detention were in violation of Petitioner's due process rights and, thus, invalid”) (emphasis in original); Singh v. Janecka, 5:26-cv-01414-ACCV, 2026 U.S. Dist. LEXIS 95798, at *16-17 (C.D. Cal. Apr. 29, 2026) (same); Saballos Rosales v. Noem, No. 5:26-cv-00112-JWH-MBK, 2026 WL 761371, at *3 (C.D. Cal. Mar. 16, 2026). See also Anderson v. Chernut, No. 1:26-cv-01960-DAD-CKD, 2026 WL 809990, at *3 (E.D. Cal. Mar. 24, 2026) (“A post-deprivation bond hearing provided two months after petitioner's detention and only after she has sought federal habeas relief does not satisfy due process.”).

These cases are grounded in the principle that a person who has suffered a constitutional violation should ordinarily be returned “to the status quo, or ‘the last uncontested status which preceded the pending controversy.’ ” V.K. v. Noem, No. 5:26-CV-00241-MWC-SK, 2026 WL 246023, at *5 (C.D. Cal. Jan. 25, 2026) (quoting Hoac v. Becerra, No. 2:25-CV-01740-DC-JDP, 2025 WL 1993771, at *7 (E.D. Cal. July 16, 2026)); Chowdhury v. Lyons, No. 5:26-cv-01252-MEMF-E, 2026 WL 1045562, at *7 (C.D. Cal. Apr. 13, 2026) (“prompt release is the remedy that will best return Petitioner to the status quo and restore his position as it was prior to the detention that Petitioner contends was in violation of his constitutional and statutory protections”). As the Second Circuit has explained, “[t]he appropriate remedy for a constitutional violation is one that as much as possible restores” a litigant “to the circumstances that would have existed had there been no constitutional error.” United States v. Stein, 541 F.3d 130, 146 (2d Cir. 2008) (cleaned up). This principle has particular force where, as here, the constitutional protections are intended to prevent an unlawful detention in the first place. See United States v. Morrison, 449 U.S. 361, 364 (1981) (observing “the general rule that remedies should be tailored to the injury suffered”).

Regardless, Petitioner was likely prejudiced by being forced to litigate a bond hearing while he is detained. As numerous courts have recognized, detention makes it more difficult for noncitizens to access counsel, obtain evidence, and otherwise prepare for a bond hearing. See generally Biwot v. Gonzales, 403 F.3d 1094, 1099 (9th Cir. 2005) (discussing the difficulty of obtaining legal representation for an “incarcerated immigrant”); Lopez Reyes v. Bonnar, 362 F. Supp. 3d 762, 778 (N.D. Cal. 2019) (discussing the “substantial challenges” faced by a noncitizen attempting to litigate a removal case while detained). Here, Petitioner has explained how his ongoing detention and the substandard conditions at Adelanto have significantly impeded his ability to obtain legal assistance and denied him “a fair opportunity to fight my immigration case” and seek release on bond. Dkt. 17-1 at 7. As discussed more fully below, while detained, Petitioner was unable to obtain any information from ICE about his alleged supervision violations or gather any evidence to rebut the Government's allegations. Petitioner has also been suffering from severe medical issues and psychological stress during his prolonged detention at Adelanto. Dkt. 17-1 at 6-7. Under these circumstances, the Government's denial of pre-deprivation process “might” “have affected the outcome of the bond hearing.” Singh, 638 F.3d at 1205.

The Court therefore concludes that Petitioner is entitled to release because he was prejudiced by the denial of a pre-deprivation hearing.

B. There is No Justification for Petitioner's Ongoing Detention

Even if Petitioner could not demonstrate that he was prejudiced by the due process violation he suffered, he is still entitled to habeas relief because the post-deprivation process received—a Rodriguez bond hearing—did not comply with governing law.

1. Petitioner Has Shown that a Waiver of Exhaustion is Warranted

As an initial matter, Respondents argue that the Court should decline to address Petitioner's claims because he has not fully exhausted administrative remedies by appealing the IJ's Rodriguez bond determination to the BIA. Dkt. 6 at 3-4.

While administrative exhaustion is not a jurisdictional requirement for habeas petitions filed under 28 U.S.C. § 2241, courts typically “require that habeas petitioners exhaust all available judicial and administrative remedies before seeking relief under § 2241” as a “prudential matter.” Ward v. Chavez, 678 F.3d 1042, 1045 (9th Cir. 2012). “Courts may require prudential exhaustion if (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.” Puga v. Chertoff, 488 F.3d 812, 815 (9th Cir. 2007) (internal citations and quotations omitted). Because exhaustion is not jurisdictional, courts “have discretion to waive a prudential requirement.” Laing v. Ashcroft, 370 F.3d 994, 998 (9th Cir. 2004). A court may waive the exhaustion requirement when “administrative remedies are inadequate or not efficacious, pursuit of administrative remedies would be a futile gesture, irreparable injury will result, or the administrative proceedings would be void.” Id. at 1000 (internal quotations and citations omitted).

The Court finds that several factors favor waiving exhaustion in this case. First, Petitioner would suffer significant irreparable harm if forced to wait for the BIA to render a decision on his appeal. Petitioner has developed several severe health conditions during his time at Adelanto, including a sinus infection, skin infection, and painful toothaches, for which he is not receiving adequate care. Dkt. 17-1 at 6-7. Although it is difficult to predict with certainty, Petitioner would likely need to wait at least six months in detention for the BIA to issue a decision on his appeal, during which time his conditions may continue to worsen. “In 2024, EOIR data showed an average processing time of 204 days for bond appeals.” Rodriguez v. Bostock, 802 F. Supp. 3d 1297, 1307 (W.D. Wash. 2025). The delays have likely increased since 2024. As the Department of Justice recently reported, “between fiscal year 2015 and the end of fiscal year 2025, the Board's pending case load increased more than five-fold—from 37,285 pending appeals to 202,946 pending appeals.” Appellate Procedures for the Board of Immigration Appeals, 91 Fed. Reg. 5267, 5270 (Feb. 6, 2026). During this time, the BIA has been unable to “keep up with incoming filings while tackling the backlog in any meaningful way.” Id. While DOJ is implementing new reforms to “streamline” BIA review and reduce this backlog, these efforts will likely take time—particularly because DOJ recently reduced the BIA's membership from 28 to 15 members. Id.

Second, for reasons that remain unclear, Petitioner was not afforded a bond hearing at the outset of his detention pursuant to Section 1226(a). Petitioner has no criminal history that would subject him to mandatory detention under Section 1226(c) and there is no other apparent legal basis to deny him a bond hearing under Section 1226(a). When questioned at the June 5, 2026, hearing, Respondents' counsel agreed that Petitioner should have been eligible for a Section 1226(a) bond hearing but could not explain why he was not provided one. It thus appears that the Government unlawfully denied Petitioner a bond hearing at the outset of his case and delayed IJ review of his ongoing detention until he was provided a Rodriguez bond hearing on April 16, 2026. Under these circumstances, the Court does not believe it appropriate to delay its review of Petitioner's claims at least another six months until the BIA resolves Petitioner's appeal.

Third, the Petition presents constitutional challenges to the IJ's reliance on uncorroborated allegations of his supervision violations and the DHS's failure to produce evidence concerning the alleged supervision violations. It is not clear that the BIA would consider such claims because it “does not have jurisdiction to determine the constitutionality of the statutes it administers.” Padilla-Padilla v. Gonzales, 463 F.3d 972, 977 (9th Cir. 2006); See In Re Fuentes-Campos, 21 I. & N. Dec. 905, 912 (BIA 1997) (“It is well settled that we lack jurisdiction to rule on the constitutionality of the Act and the regulations we administer.”). While the BIA would have authority to review the IJ's ultimate determination that Petitioner is a flight risk, that determination is not particularly “fact-intensive” and “ ‘administrative appellate record is not necessary to resolve’ ” Petitioner's challenge to it. Miri v. Bondi, No. 5:26-CV-00698-MEMF-MAR, 2026 WL 622302, at *10–11 (C.D. Cal. Mar. 5, 2026) (quoting Hernandez v. Sessions, 872 F.3d 976, 989 (9th Cir. 2017)).

For these reasons, the Court waives the prudential exhaustion requirement.

2. The Court has Jurisdiction to Review the IJ's Bond Determination for Abuse of Discretion

The INA circumscribes federal courts' review of bond determinations under Section 1226. Section 1226(e) provides that “[t]he Attorney General's discretionary judgment regarding the application of this section shall not be subject to review.”² As such, Section 1226(e) precludes a noncitizen from “challenging a discretionary judgment by the Attorney General or a decision that the Attorney General has made regarding his detention or release.” Jennings v. Rodriguez, 583 U.S. 281, 295 (2018) (plurality) (cleaned up).

Nonetheless, the federal courts retain jurisdiction to consider constitutional claims or questions of law regarding bond determinations, including “mixed questions” involving the application of law to facts. The Ninth Circuit has found that the immigration courts' determination that a noncitizen presents a danger by “clear and convincing” evidence is such a “mixed question” amenable to federal court review. See Martinez v. Clark, 124 F.4th 775, 783 (9th Cir. 2024). Although Martinez involved a dangerousness determination, the same rationale applies to detention decisions based on flight risk. As Martinez recognizes, an IJ applies the same nine-factor test set forth in In re Guerra, 24 I. & N. Dec. 37 (BIA 2006) “[t]o determine whether an alien is a danger to the community or a risk of flight.” 24 F.4th at 783 (emphasis added). Although what constitutes dangerousness and flight risk “is malleable and involves agency discretion, Wilkinson instructs that this is still a legal standard so long as federal courts can ‘assess whether an IJ correctly applied the statutory standard to a given set of facts.’ ” Id. (quoting Wilkinson v. Garland, 601 U.S. 209, 221 (2024)).

Under Martinez, this Court reviews the IJ's flight risk finding for “abuse of discretion.” 124 F.4th at 784. Under that deferential standard, the reviewing court determines whether the IJ “ ‘applied the correct legal standard’ ” and may not “ ‘reweigh evidence.’ ” Id. at 785 (quoting Konou v. Holder, 750 F.3d 1120, 1127 (9th Cir. 2014)). An IJ “ ‘abuses its discretion when its decision is arbitrary, irrational, or contrary to law,’ ” Pleitez-Lopez v. Barr, 935 F.3d 716, 719 (9th Cir. 2019) (quoting Avagyan v. Holder, 646 F.3d 672, 678 (9th Cir. 2011)), or “ ‘when it fails to state its reasons and show proper consideration of all factors when weighing equities and denying relief.’ ” An Na Peng v. Holder, 673 F.3d 1248, 1253 (9th Cir. 2012) (quoting Ahmed v. Holder, 569 F.3d 1009, 1014 (9th Cir. 2009)).

3. The IJ Abused Its Discretion in Finding Petitioner A Flight Risk

The IJ conducted Petitioner's bond hearing pursuant to Rodriguez v. Holder, No. 2:07-cv-03239-TJH-RNB (C.D. Cal. Aug. 6, 2013), under which DHS bears the burden to justify a noncitizen's detention by “clear and convincing” evidence. The Court therefore proceeds to determine whether the IJ abused its discretion by finding that Petitioner presents a flight risk by “clear and convincing” evidence. The “clear and convincing” standard requires the Government to present evidence to establish “an abiding conviction that the truth of [the] factual contentions at issue is highly probable.” Mondaca-Vega v. Lynch, 808 F.3d 413, 422 (9th Cir. 2015) (en banc). This is a “a high burden and must be demonstrated in fact, not ‘in theory.’ ” Obregon v. Sessions, No. 17-cv-01463-WHO, 2017 WL 1407889, at *7 (N.D. Cal. Apr. 20, 2017) (quoting United States v. Patriarca, 948 F.2d 789, 792 (1st Cir. 1991)). See also Perez v. Wolf, 445 F. Supp. 3d 275, 287 (N.D. Cal. 2020) (collecting cases applying the “high standard” of “clear and convincing” evidence).

To determine whether the IJ abused its discretion, the Court reviewed the digital audio recording of the Petitioner's Rodriguez bond hearing. Dkt. 19. At the outset of the hearing, the IJ received documents from DHS and Petitioner. DHS submitted Petitioner's Form I-213, “Record of Deportable/Inadmissible Alien.” Dkt. 6-2 (Form I-213). Petitioner submitted several letters from friends and neighbors attesting to Petitioner's good character, reliability, and deep ties in Ojai, as well as a letter from a sponsor willing to house Petitioner during the pendency of his immigration case. Dkt. 17-1 at 9-16 (letters of support).

The IJ then proceeded to question Petitioner at length regarding his immigration history, work history, and his supervision record since his placement in removal proceedings in 2022. Petitioner objected that he had not been provided the “transcript” of his alleged VeriWatch violations and strenuously argued that he had complied with all conditions of release. Petitioner testified that he was aware of one instance in which he was not at his home when he answered a call for a virtual home check-in, but after discussing the matter with his VeriWatch contact, was assured that he would face no adverse consequences. Petitioner also testified about his difficulties with the VeriWatch device, including dropped phone calls and other difficulties connecting to the cellular network. Petitioner claimed he repeatedly followed up with his VeriWatch contacts anytime a phone call disconnected or there were other technical difficulties, but was never told that he had committed any violations until his arrest. Petitioner also questioned why he was placed on the VeriWatch device in 2025, when he had previously complied with his supervision conditions and attended his court hearings without incident. Dkt. 19.

After Petitioner testified, the IJ heard arguments from DHS counsel and Petitioner responded to DHS's arguments. At the conclusion of the bond hearing, the IJ found that DHS had met its burden to demonstrate that Petitioner is a flight risk by “clear and convincing” evidence. The IJ acknowledged that Petitioner had lived in the United States for twenty years, but cited his lack of family in the country, limited immigration relief, and VeriWatch violations. Dkt. 19. The IJ's bond determination is documented on a form, which includes a single sentence explaining the IJ's rationale for ordering Petitioner's detention: “The Department met its burden to establish that Respondent is such a substantial flight risk that bond should be denied.” Dkt. 6-3 at 1. Respondents have not submitted a formal opinion or any other written explanation for the IJ's determination.

Based on the foregoing, the Court concludes that the IJ abused its discretion for two reasons. First, the IJ relied on Petitioner's alleged VeriWatch violations without sufficient competent evidence to substantiate that such violations occurred. The only evidence of Petitioner's violations was contained in the Form I-213, which states that “Petitioner has accrued 18 program violations YTD since being enrolled on 05/2025.” Dkt. 6-2 at 2-3. The Form I-213 does not list the type or date of the violations, or provide any other information about how Petitioner allegedly violated his conditions.

In general, an IJ may permissibly rely on hearsay statements in a Form I-213. “The Federal Rules of Evidence do not apply in removal proceedings.” Hernandez v. Garland, 52 F.4th 757, 766 (9th Cir. 2022). An IJ may rely on “all reliable information” “so long as it is probative and its admission is fundamentally fair.” Id. (cleaned up). Accordingly, the Ninth Circuit has “long held that ‘information on an authenticated immigration form,’ ” including an I-213, “ ‘is presumed to be reliable in the absence of evidence to the contrary presented by the alien.” Id. (quoting Espinoza v. INS, 45 F.3d 308, 310 (9th Cir. 1995)). However, an I-213 “could not be presumed true when the source of that information was neither a government official nor the subject of the report, or where there was evidence of unreliability.” Hernandez-Guadarrama v. Ashcroft, 394 F.3d 674, 681 (9th Cir. 2005).

Here, both exceptions apply. The information concerning Petitioner's alleged violations were provided by BI Incorporated, a private contractor, not a government official. Moreover, Petitioner presented evidence of the allegations' unreliability in the form of his sworn testimony. At the hearing, Petitioner testified at length about his compliance with his supervision conditions and experience with the VeriWatch device. The IJ did not find Petitioner's testimony not credible and Respondents presented no evidence—aside from the I-213—to contradict it. Nonetheless, the IJ credited the hearsay statements in the I-213 over Petitioner's credible testimony. Such uncorroborated and disputed hearsay evidence in the I-213 cannot establish “clear and convincing” evidence that Petitioner is a flight risk. See Sanchez Henao v. Hernandez, No. 2:26-cv-00707-LK, 2026 WL 1492714, at *6 (W.D. Wash. May 28, 2026) (“the uncorroborated, inaccurate I-213 form—which contained information input by an unknown person in an unknown (but deficient) manner, drawn from an unidentified database that culled information from an unknown source—which cited only unspecified “violations” cannot serve as clear and convincing evidence for a finding of flight risk”).

The Court is particularly troubled that IJ credited the I-213 when Petitioner had made repeated requests to DHS and the Immigration Court for the underlying data documenting Petitioner's alleged violations. Petitioner made these requests orally and in writing well in advance of his bond hearing, including after the IJ apparently directed him to request the information from DHS directly. Dkt. 17-1 at 21-22. The IJ nonetheless did not require DHS to produce the data or question DHS why it was not provided, even though DHS bore the burden of proof at the bond hearing. Respondents ultimately disclosed a summary of Petitioner's alleged violations, including the dates and types of violations, in the declaration of ICE Deportation Officer Rogelio Torres attached to their Answer in this habeas proceeding. Dkt. 6-1 at 1-2. ICE was able to collect and produce this data within a week after Respondents were ordered to file their response to the Petition. Dkt. 3. It thus appears that ICE had this information readily available and simply declined to produce it for Petitioner's bond hearing, forcing Petitioner to speculate about what violations he might have committed and depriving him of a meaningful opportunity to contest the allegations against him.³

Even if the IJ did not err by relying on the I-213 to establish “clear and convincing” evidence of Petitioner's violations, the IJ abused its discretion by finding Petitioner was an unmanageable risk of flight. It is undisputed that Petitioner complied with his conditions of release after he was released from DHS custody in 2022 until he was placed on the VeriWatch device in May 2025. During this time, Petitioner appeared for all his supervision check-ins and court hearings, including after he relocated from Montana to California, and had no criminal history. DHS required Petitioner to wear the VeriWatch beginning in May 2025, even though he had complied with his prior conditions and there had been no apparent change in his immigration proceedings. Petitioner's alleged violations all occurred after Petitioner was placed on the VeriWatch device and, as described in DO Rogelio's declaration, the alleged violations all relate to Petitioner's failure to comply with the technology. Dkt. 6-1 at 1-2.

Petitioner's alleged violations therefore at most establish that Petitioner struggled to comply with supervision requirements of the VeriWatch—whether due to faulty technology, spotty cell tower coverage, or otherwise. But supervision conditions are not intended to be a contest to determine whether a person can comply. Rather, any violations must be evaluated by reference the purpose of supervision, namely, ensuring that the person is likely to appear for hearings or removal. See 8 C.F.R. 1236.1(c)(8). Here, Petitioner's alleged violations do not establish “an abiding conviction” that is it “highly probable,” Mondaca-Vega, 808 F.3d at 422, that he unlikely to appear, given his demonstrated record of compliance prior to the installation of the VeriWatch device. As Petitioner observed at the bond hearing, he appeared for his ICE check-in on October 9, 2025, after the alleged violations at issue. This provides additional evidence that Petitioner could be trusted to appear as instructed and that any supervision violations were the result of the VeriWatch technology. See Fernando A.G. v. Chestnut, No. 1:25-CV-01925-SKO, 2026 WL 74007, at *6 n.6 (E.D. Cal. Jan. 9, 2026) (finding it significant that the petitioner “was arrested in the context of complying with an order to check in on December 3, 2025” after alleged ISAP violations); Singh v. Warden of Golden State Annex, No. 1:26-cv-01406-KES-HBK, 2026 WL 1108233, at *1 (E.D. Cal. Apr. 23, 2026) (same).

The IJ's remaining reasons for finding Petitioner a flight risk—his lack of family in the United States and limited opportunities for immigration relief—were all factors that existed when ICE first apprehended Petitioner in 2022. ICE nonetheless released Petitioner on his own recognizance and allowed him to remain out of custody until his alleged VeriWatch violations. Petitioner therefore demonstrated that he could be released and comply with his conditions of supervision, notwithstanding his limited family ties and immigration claims.

In sum, the Court concludes that the IJ abused its discretion in concluding that Petitioner's lack of family ties, limited immigration claims, and alleged supervision violations constitute “clear and convincing” evidence that he is an unmanageable risk of flight.

4. Remedy

The Court now turns to the appropriate remedy for the IJ's erroneous bond determination.

“In habeas cases, federal courts have broad discretion in conditioning a judgment granting relief.” Lujan v. Garcia, 734 F.3d 917, 933 (9th Cir. 2013). “Federal courts are authorized, under 28 U.S.C. § 2243, to dispose of habeas corpus matters as law and justice require.” Id. (quoting Hilton v. Braunskill, 481 U.S. 770, 775 (1987)). “Upon determining that an IJ provided a petitioner with a legally or constitutionally inadequate bond hearing, district courts have either ordered petitioner's immediate release [ ] or ordered that Respondents provide petitioner with a new constitutionally adequate bond hearing.” Perez Velasquez v. Bondi, No. 26-cv-01759-GPC-DDL, 2026 WL 1042479, at *7 (S.D. Cal. Apr. 16, 2026) (collecting cases).

This Court has previously found “a new bond hearing is the appropriate remedy to afford the Immigration Court an opportunity to correct its errors and conduct a bond hearing that complies with governing law.” N.A. v. Warden, Adelanto Det. Facility, No. 5:25-cv-03007-cv-MBK, 2026 WL 734587, at *9 (C.D. Cal. Feb. 20, 2026), adopted, No. 5:25-cv-03007-CV-MBK, 2026 WL 734585 (C.D. Cal. Mar. 12, 2026). However, here, the Court believes it appropriate to order Petitioner's release. Because the Court has found that evidence of Petitioner's alleged violations does not establish that he is a flight risk, “the Court finds no basis for Petitioner's continued detention and concludes immediate release with reasonable conditions of supervision is the appropriate remedy.” Soriano v. Hernandez, No. 2:26-cv-00900-DGE, 2026 WL 969764, at *6 (W.D. Wash. Apr. 10, 2026).

Ordinarily, the Court would not dictate the conditions of supervision under which Petitioner may be released. However, given the evidence presented here, it is clear that the VeriWatch technology is not an appropriate condition of supervision for Petitioner. At the Rodriguez bond hearing, Petitioner volunteered that he would be willing to wear a GPS ankle monitor or be subject to other stringent conditions. The Court will leave it to DHS to determine in the first instance the appropriate conditions for Petitioner's release, but orders that those conditions may not include a VeriWatch.⁴

III. CONCLUSION

For the foregoing reasons, IT IS ORDERED that: (1) Judgment be entered granting the Petition; (2) a writ of habeas corpus be issued requiring Petitioner Clayton Gerald Herman's (A# 216-024-609) immediate release, subject to appropriate conditions; and (3) Respondents shall file a status report no later than three (3) days from the date of this Order confirming that Petitioner has been released from Respondents' custody consistent with this order.

FOOTNOTES

1.   The VeriWatch is utilized by BI Incorporated, which operates the Intensive Supervision Appearance Program (“ISAP”) under contract with DHS. See generally Nguyen v. B.I. Inc., 435 F. Supp. 2d 1109, 1112 (D. Or. 2006); “BI VeriWatch 2” Fact Sheet, available at https://bi.com/gps/#veriwatch2 (last visited June 12, 2026).

2.   The Court assumes without deciding that Section 1226(e)'s limits apply to bond hearings conducted pursuant Rodriguez.

3.   Notably, DO Rogelio's declaration lists a different number of alleged violations (20) than DHS alleged at Petitioner's bond hearing (18), (Dkt. 6-1 at 1-2), raising additional questions about the reliability and accuracy of the VeriWatch data.

4.   Because the Court concludes that Petitioner is entitled to release on the foregoing grounds, it declines to address Petitioner's Eighth Amendment claim.

HON. MICHAEL B. KAUFMAN UNITED STATES MAGISTRATE JUDGE