Bernal v. Albarran

Background

Josefa Hernandez Bernal arrived in the United States from Venezuela in June 2024. Federal agents apprehended her at the border and released her on an Order of Recognizance. She timely filed applications for asylum, withholding of removal, and protection under the Convention Against Torture; the opinion states that all three applications remained pending in immigration court. The opinion also states that Bernal had no criminal history and had complied with the applicable requirements.

On November 13, 2025, Bernal attended a routine check-in at the Immigration and Customs Enforcement field office in San Francisco, as instructed by the agency. Immigration and Customs Enforcement officers detained her there. She filed a petition for a writ of habeas corpus, which is a request for judicial review of unlawful detention, and moved for a temporary restraining order. She sought release from custody and an order preventing the government from re-detaining her.

Bernal argued that her detention violated the Fifth Amendment’s Due Process Clause because it did not serve either of the interests that, according to her argument, could justify civil detention: addressing flight risk or preventing danger to the community. Her counsel stated that the government had been informed of the petition. The government did not agree to the requested order and had not filed an opposition when the court ruled.

Legal standard

The court explained that the standard for a temporary restraining order is substantially the same as the standard for a preliminary injunction. The requesting party must show a likely success on the merits, likely irreparable harm without relief, a balance of hardships favoring relief, and that relief would serve the public interest. If the party shows serious questions about the merits instead of a likelihood of success, relief may still be available when the balance of hardships strongly favors that party and the other requirements are met. When the government is the opposing party, the balance-of-hardships and public-interest factors are considered together.

The court also stated that a temporary restraining order is an extraordinary remedy generally limited to preserving the existing situation and preventing irreparable harm until a preliminary-injunction hearing can occur.

Court’s analysis

The court found that Bernal had shown a likelihood of success on her Fifth Amendment claim. It determined that she had a substantial interest in remaining out of custody and that the Due Process Clause entitled her to a bond hearing before an immigration judge before any arrest or detention.

The court separately found likely irreparable injury. It reasoned that the likely unconstitutional loss of liberty caused by detention without a hearing was immediate and could not adequately be remedied later.

The court found that the balance of hardships and public interest also strongly favored Bernal. It stated that the public has a strong interest in procedural protections against unlawful detention and that the government would face, at most, a short delay in detaining Bernal if it later established that detention was permissible. The court concluded that the temporary restraining order would restore the status quo that existed before Bernal’s detention.

The court also ruled that no security or bond was required from Bernal under Federal Rule of Civil Procedure 65(c), finding no realistic likelihood that the respondents would be harmed by the order.

Disposition

The court granted Bernal’s motion for a temporary restraining order to preserve the status quo while the parties submitted further briefing and prepared for a hearing. Respondents were ordered to release Bernal immediately. They were enjoined and restrained from re-detaining her without notice and a pre-deprivation hearing before a neutral decision-maker, and from removing her from the United States.

The order was to remain in effect until November 27, 2025, unless the court ordered otherwise. The court scheduled a preliminary-injunction hearing for November 26, 2025, and set briefing deadlines for the respondents and Bernal.