Rivera Giorges v. Kaiser

Background

Alex Rivera Giorges and Sokha Khan are noncitizens who have lived continuously in the United States since childhood. Each committed aggravated felonies, served a prison sentence, and was transferred directly from prison to Immigration and Customs Enforcement detention for removal proceedings. Both were members of a class action brought during the COVID-19 pandemic. In that earlier proceeding, a federal judge ordered individualized review of certain detainees’ requests for release. The court found that Rivera and Khan were not dangers to the community or flight risks and released them in 2020, subject to conditions including immigration monitoring.

The opinion describes Rivera as having received lawful permanent resident status after entering the United States at age eleven. He was released from ICE detention in June 2020 and has since complied with his reporting obligations, had no new arrests or convictions, worked for a nonprofit organization, and participated in community activities. Rivera is subject to a final order of removal, although he has a pending motion before the Board of Immigration Appeals seeking protection under the Convention Against Torture.

Khan entered the United States as a refugee at age two and later became a lawful permanent resident. After his release from ICE detention in July 2020, he complied with his release conditions, reported to all ICE check-ins, had no new arrests or convictions, and cared for his mother. His removal proceedings remain pending, and he is not currently subject to a final order of removal.

Requested relief and legal standard

The petitioners filed an immigration detention petition and sought a preliminary injunction, which is a temporary court order intended to prevent anticipated harm while a case continues. They asked the court to stop the government from re-detaining either of them unless it first had evidence that the person posed a current flight risk or danger to the community. They argued that detention without a bond hearing would violate their liberty interests under the Fifth Amendment.

To obtain a preliminary injunction, the petitioners had to show that they were likely to succeed on the merits, likely to suffer irreparable harm without the injunction, that the balance of hardships favored them, and that an injunction would serve the public interest. Because the government was the opposing party, the court treated the last two considerations together.

Court’s analysis

The court analyzed two immigration detention provisions. Section 1226(c) of Title 8 generally requires detention of noncitizens who committed specified offenses during removal proceedings and does not ordinarily provide for release on bond. Section 1231(a) applies after a final order of removal. It requires detention during an initial 90-day removal period and permits continued detention for a period reasonably necessary to secure removal, subject to constitutional limits recognized by the Supreme Court.

The court held that the petitioners’ release through the earlier pandemic-related class action did not create a constitutional right to continued freedom so long as they complied with their release conditions. The court reasoned that the release occurred under temporary circumstances connected to the COVID-19 crisis and the settlement agreement, and that the petitioners could not reasonably have understood the release to be permanent.

As to Rivera, the court explained that his prior detention had been under section 1226(c), while his final order of removal later made section 1231(a) the relevant detention statute. Rivera had not yet been detained under section 1231(a). The court also found that, if he were detained, the existing record did not show a significant likelihood that removal could not occur in the reasonably foreseeable future.

As to Khan, the court held that his pending removal proceedings meant section 1226(c), rather than section 1231(a), governed any new detention. The court also noted that Khan had spent only one month in detention in 2020, which was less than the six-month period the Supreme Court had found constitutionally permissible in the circumstances discussed by the court.

The court emphasized that it was not deciding whether the petitioners deserved another chance or whether they could ever be detained indefinitely without due process. It decided only that, under the Supreme Court and Ninth Circuit decisions governing the case, the government could re-detain them without first providing a bond hearing, at least on the facts then before the court. Because the petitioners had not shown that they were likely to succeed on the merits, the court denied the preliminary injunction.

Disposition

Judge Wise denied the petitioners’ motion for a preliminary injunction. The court separately issued an order to show cause requiring the petitioners to explain why the case should not be dismissed as moot after the requested preliminary relief was denied. The court gave them until October 24, 2025, to respond. The opinion does not state that the case was dismissed in this order.