Unreported / Non-Citable
Background
Kelly Daynet Perdomo Atica, a Venezuelan citizen, entered the United States in August 2022 and was released on her own recognizance several days later. She received Temporary Protected Status in 2024, applied for asylum and withholding of removal, and had an appeal pending before the Board of Immigration Appeals. She had no criminal record and had family ties in the United States, including a two-year-old U.S.-citizen child.
ICE detained Perdomo Atica when she appeared for a scheduled check-in on January 16, 2026. An immigration judge denied bond on the ground that she was subject to mandatory detention. Proceeding pro se, she petitioned for habeas relief under 28 U.S.C. § 2241, alleging among other things that her detention violated due process. The federal respondents sought dismissal or summary judgment, contending that 8 U.S.C. § 1225(b) required her detention.
The Court’s Holding
The court did not resolve the case through statutory interpretation. Applying the three-factor procedural-due-process test from Mathews v. Eldridge, it held that detention under § 1225(b)(2), as applied to Perdomo Atica without notice, an opportunity to be heard, or an individualized assessment, violated the Due Process Clause. Her nearly four years in the country, prior release, lack of criminal history, family ties, pursuit of immigration relief, and more than six months in custody supported a protected liberty interest.
The government did not contend that Perdomo Atica posed a flight risk or danger to the community, identify another weighty interest justifying her detention, or point to any available procedure for an individualized determination. The court therefore found that all three Mathews factors favored her, denied the respondents’ summary-judgment motion, and granted the habeas petition in part.
The court ordered her release within 48 hours to a public location under conditions no more restrictive than those preceding her detention. It also barred her transfer or removal under the existing detention and prohibited re-detention while removal proceedings remained pending unless an immigration judge first found, after a pre-detention hearing, that the government had proved flight risk or dangerousness by clear and convincing evidence.
Key Takeaways
- Mandatory detention under § 1225(b)(2) violated procedural due process as applied because Perdomo Atica received no individualized assessment, notice, or meaningful opportunity to be heard.
- The court ordered release rather than a bond hearing because the government identified no process to await and did not argue that the bond-hearing provision in § 1226(a) applied.
- Any later detention during the removal proceedings requires a pre-detention hearing and clear-and-convincing proof that Perdomo Atica is a flight risk or danger to the community.
Why It Matters
The decision illustrates that statutory mandatory-detention authority does not necessarily foreclose an as-applied procedural-due-process challenge. Even after recognizing controlling Fifth Circuit authority treating certain long-present noncitizens as subject to § 1225(b)(2), the court separately examined whether the procedures surrounding this petitioner’s detention satisfied the Constitution.
The remedy is also significant: the court required prompt release and imposed procedural safeguards against re-detention, rather than merely directing immigration officials to conduct a bond hearing under a statutory provision they maintained did not apply.