Opinion

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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DAVID HOYOS AMADO, Case No.: 25cv2687-LL(DDL)

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13 Petitioner, ORDER GRANTING IN PART AND

DENYING IN PART PETITION FOR

14 v. WRIT OF HABEAS CORPUS AND

15 DENYING MOTION FOR

UNITED STATES DEPARTMENT OF TEMPORARY RESTRAINING

16 JUSTICE, et al., ORDER AS MOOT

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Respondents. [ECF Nos. 1, 2]

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20 Before the Court is Petitioner David Hoyos Amado’s Petition for Writ of Habeas

21 Corpus pursuant to 28 U.S.C. § 2241 (ECF No. 1), and his accompanying Motion for a

22 Temporary Restraining Order (“TRO”) (ECF No. 2). Respondents U.S. Department of

23 Justice, Todd Lyons, Acting Director of Immigration and Customs Enforcement

24 (“ICE”), Christopher J. LaRose, Senior Warden of Otay Mesa Detention Center, and

25 Attorney General Pam Bondi, in their official capacities (hereinafter “Respondents”)

26 filed a Response in Opposition to Petition for Writ of Habeas Corpus and Motion for

27 Temporary Restraining Order (hereinafter “Oppo.”) (ECF No. 11), and Petitioner filed

1 AND DENIES IN PART the Petition for Writ of Habeas Corpus, and DENIES AS

2 MOOT the Motion for TRO.

3 I. BACKGROUND

4 Petitioner alleges that on “September 14, 2024, [he] crossed the United States-

5 Mexico border near San Diego, California, without inspection, accompanied by his

6 family, to escape imminent persecution in Colombia.” ECF No. 1 at 15; see also Oppo.

7 at 7 (citing Declaration of Marcus Vera ¶¶ 5-6). Petitioner was encountered by Border

8 Patrol on September 14, 2024. Oppo. at 7 (citing Decl. of Marcus Vera ¶¶ 5-7). He was

9 arrested and has been detained since then at Otay Mesa Detention Center. Oppo. at 7

10 (citing Decl. of Marcus Vera ¶¶ 5-9, 16); see also ECF No. 1 at 16.

11 Petitioner was issued an order of expedited removal pursuant to Immigration &

12 Nationality Act (“INA”) § 235(b)(1), 8 U.S.C. § 1225(b)(1). Oppo. at 7 (citing Decl. of

13 Marcus Vera ¶ 7). Following a credible fear interview, the asylum officer determined

14 that Petitioner had established a reasonable fear of persecution and was issued a

15 discretionary Notice to Appear in 8 U.S.C. § 1229(a) removal proceedings. Decl. of

16 Marcus Vera ¶¶ 8-9. Petitioner references 8 U.S.C. § 1226(c) in his Petition and

17 accompanying Motion, but the basis for Petitioner’s requested relief is that his

18 prolonged detention for over 13 months violates due process. ECF No. 1 at 11-12, 17-

19 19. Specifically, Petitioner argues that his detention violates fundamental due process

20 rights under the Fifth Amendment. ECF No. 1 at 24; see also Reply at 1-2. Respondents

21 argue that Petitioner is detained pursuant to 8 U.S.C. § 1225(b)(2)(A), not pursuant to

22 8 U.S.C. § 1226(c). Oppo. at 7 (citing Decl. of Marcus Vera ¶¶ 9, 16).

23 On January 9, 2025, Petitioner requested a bond determination from the

24 Immigration Judge (“IJ”), but he withdrew his request at a hearing on January 17, 2025.

25 Oppo. at 7 (citing Decl. of Marcus Vera ¶ 11); see also TRO at 3. On September 24,

26 2025, after a hearing before an IJ, the IJ denied Petitioner’s claims for relief and

27 subjected him to a final removal order. ECF No. 1 at 16-17; see also Oppo. at 8 (citing

1 factual and legal errors. ECF No. 1 at 16-17. On October 3, 2025, Petitioner filed a

2 notice of appeal to the Board of Immigration Appeals (“BIA”), which is currently

3 pending. ECF No. 1 at 17; see also Oppo. at 8 (Decl. of Marcus Vera ¶ 14). As such,

4 the order of removal entered by the IJ will not become administratively final, and cannot

5 be executed, until such time as the appeal is dismissed. Oppo. at 8 (Decl. of Marcus

6 Vera ¶ 15). Petitioner argues that “the delay inherent in the BIA appellate process

7 (averaging 12 to 18 months or more)” means Petitioner faces prolonged detention

8 without any opportunity for bond or release. TRO at 2; see also ECF No. 1 at 17.

9 Based on the above, Petitioner filed the instant Petition and brings the following

10 claims: (1) a “constitutional claim [that his] detention violates his right to substantive

11 and procedural due process guaranteed by the Fifth Amendment to the U.S.

12 Constitution;” (2) “[his] continued detention violates the Immigration and Nationality

13 Act and the U.S. Constitution.” ECF No. 1 at 30-31. Petitioner also requests attorney’s

14 fees under the Equal Access to Justice Act. Id. at 31. Accordingly, Petitioner “seeks

15 immediate release from custody or, in the alternative, an expedited bond hearing, on the

16 grounds that his prolonged detention for over 13 months without meaningful review

17 violates the Due Process Clause of the Fifth Amendment to the United States

18 Constitution, established principles of international law incorporated into jurisprudence,

19 and binding precedents from the Supreme Court and federal courts.” Id. at 11-12, 31.

20 II. LEGAL STANDARD

21 Writs of habeas corpus may be granted by the Supreme Court, any justice thereof,

22 the district courts, and any circuit judge within their respective jurisdictions.” 28 U.S.C.

23 § 2241(a). The writ of habeas corpus is “available to every individual detained within

24 the United States.” Hamdi v. Rumsfeld, 542 U.S. 507, 525 (2004). A prisoner prevails

25 in her petition for writ of habeas corpus if he shows that “[he] is in custody in violation

26 of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241(c)(3); see

27 also Espinoza v. Sabol, 558 F.3d 83, 89 (1st Cir. 2009) (“[T]he burden of proof under

1 III. DISCUSSION

2 Respondents argue that “Petitioner is appropriately subject to detention pursuant

3 to 8 U.S.C. § 1225(b)(2)(A), which permits detention when an immigration officer

4 ‘determines that [he is] not clearly and beyond a doubt entitled to be admitted into the

5 country.’” Oppo. at 6 (citing 8 U.S.C. § 1225(b)(2)(A)). Respondents further argue that

6 “Petitioner’s mandatory detention pursuant to 8 U.S.C. 1225(b)(2)(A) does not violate

7 the U.S. Constitution and laws.” Oppo. at 6-7 (citing Department of Homeland Security

8 v. Thuraissigiam, 591 U.S. 103, 138-139 (2020) (“‘[A]n alien seeking initial admission

9 to the United States … ‘has only those rights regarding admission that Congress has

10 provided by statute.’”). Respondents also argue that “Petitioner has no constitutional

11 right to a bond hearing” because “Section 1225(b)(2)(A) does not provide for a custody

12 determination by this Court or a custody hearing before an immigration judge.” Oppo.

13 at 7 (citing Jennings v. Rodriguez, 583 U.S. 281, 297 (2018)). Finally, Respondents

14 argue that “even if Petitioner was entitled to bond, Petitioner has withdrawn his only

15 request for such a hearing, failing to exhaust his own administrative remedies before

16 seeking relief in habeas.” Oppo. at 15 (internal citation omitted).

17 a. Exhaustion

18 “Exhaustion can be either statutorily or judicially required.” Acevedo-Carranza

19 v. Ashcroft, 371 F.3d 539, 541 (9th Cir. 2004). While 28 U.S.C. § 2241 “does not

20 specifically require petitioners to exhaust direct appeals before filing petitions for

21 habeas corpus,” the Ninth Circuit “require[s], as a prudential matter, that habeas

22 petitioners exhaust available judicial and administrative remedies before seeking relief

23 under § 2241.” Castro-Cortez v. INS, 239 F.3d 1037, 1047 (9th Cir. 2001), abrogated

24 on other grounds by, Fernandez-Vargas v. Gonzales, 548 U.S. 30 (2006). Prudential

25 exhaustion may be required if: “(1) agency expertise makes agency consideration

26 necessary to generate a proper record and reach a proper decision; (2) relaxation of the

27 requirement would encourage the deliberate bypass of the administrative scheme; and

1 to preclude the need for judicial review.” Puga v. Chertoff, 488 F.3d 812, 815 (9th Cir.

2 2007) (citing Noriega-Lopez v. Ashcroft, 335 F.3d 874, 881 (9th Cir. 2003)). “[A] court

3 may waive the prudential exhaustion requirement if ‘administrative remedies are

4 inadequate or not efficacious, pursuit of administrative remedies would be a futile

5 gesture, irreparable injury will result, or the administrative proceedings would be

6 void.’” Hernandez v. Sessions, 872 F.3d 976, 988 (9th Cir. 2017) (quoting Laing v.

7 Ashcroft, 370 F.3d 994, 1000 (9th Cir. 2004)).

8 This Court, following other courts in this District, finds that exhaustion would be

9 futile because the Board of Immigration Appeals is obligated to apply the binding

10 precedent of Matter of Yajure Hurtado, 29 I. & N. Dec. 216 (BIA 2025) and Matter of

11 Q. Li, 29 I&N Dec. 66 (BIA 2025) to find that detention is mandatory under 8 U.S.C. §

12 1225(b)(2). See, e.g., Garcia v. Noem, No. 25-CV-2180-DMS-MMP, 2025 WL

13 2549431, at *4-5 (S.D. Cal. Sept. 3, 2025); Valdovinos v. Noem, No. 25-CV-2439 TWR

14 (KSC), slip op. at 9 (S.D. Cal. Sept. 25, 2025). Therefore, the Court concludes that

15 exhausting administrative remedies would be futile.

16 b. Merits

17 Petitioner states that upon his apprehension at the United States-Mexico border,

18 he was immediately detained by ICE under 8 U.S.C. § 1226(c). ECF No. 1 at 16.

19 “Section 1226(c) . . . carves out a class of aliens for whom detention is mandatory. This

20 includes individuals who have committed certain enumerated offenses or who have

21 been involved in drug trafficking or terrorist activities.” Rodriguez Diaz v. Garland, 53

22 F.4th 1189, 1197 (9th Cir. 2022) (citing 8 U.S.C. § 1226(c)). Notably, there is nothing

23 in the record to support that Petitioner was charged with any of the enumerated offenses

24 set forth in Section 1226(c) including, for example, burglary, theft, larceny, shoplifting,

25 or assault of a law enforcement officer offense. See Docket. Accordingly, it does not

26 appear that Petitioner was apprehended under 8 U.S.C. 1226(c).

27 Respondents contend that Petitioner is “detained in ICE custody pursuant to 8

1 Oppo. at 10 (citing Decl. of Marcus Vera ¶ 16). Respondents argue that “Petitioner

2 remains in lawful, mandatory detention during the pendency of his removal

3 proceedings.” Oppo. at 10.

4 The Court will conduct its analysis using the Respondent’s argument that

5 Petitioner is detained pursuant to 8 U.S.C. § 1225(b)(2)(A). Section 1225(b)(2)(A)

6 provides that: “[I]n the case of an alien who is an applicant for admission, if the

7 examining immigration officer determines that an alien seeking admission is not clearly

8 and beyond a doubt entitled to be admitted, the alien shall be detained for a proceeding

9 under section 1229a of this title.” Although Petitioner’s application for asylum has now

10 been denied by an immigration judge, because Petitioner has appealed his order of

11 removal it is not administratively final. Accordingly, the Court finds that the sole issue

12 presented is whether, in the circumstances of this case and at this point in time, holding

13 Petitioner to mandatory detention without a bond hearing under 8 U.S.C. 1225(b)(2)(A)

14 violates Petitioner’s due process rights.

15 “It is well established that the Fifth Amendment entitles aliens to due process of

16 law in deportation proceedings.” Demore v. Kim, 538 U.S. 510, 523 (2003) (citing Reno

17 v. Flores, 507 U.S. 292, 306 (1993)). “At the same time, however, this Court has

18 recognized detention during deportation proceedings as a constitutionally valid aspect

19 of the deportation process.” Id. The Ninth Circuit has questioned the constitutionality

20 of certain immigration detention statutes, including § 1225(b):

21 We have grave doubts that any statute that allows for arbitrary prolonged

detention without any process is constitutional or that those who founded

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our democracy precisely to protect against the government’s arbitrary

23 deprivation of liberty would have thought so. Arbitrary civil detention is

not a feature of our American government. “[L]iberty is the norm, and

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detention prior to trial or without trial is the carefully limited exception.”

25 United States v. Salerno, 481 U.S. 739, 755, 107 S.Ct. 2095, 95 L.Ed.2d

697 (1987). Civil detention violates due process outside of “certain special

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and narrow nonpunitive circumstances.” Zadvydas v. Davis, 533 U.S. 678,

27 690, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001) (internal quotation marks

and citation omitted).

1 Rodriguez v. Marin, 909 F.3d 252, 256-57 (9th Cir. 2018) (alteration in original).

2 The Court agrees with those courts that have found a noncitizen detained under

3 § 1225(b) for a prolonged period without an individualized bond hearing may assert a

4 constitutional right to due process. See Maksin v. Warden, Golden State Annex, No.

5 1:25-CV-00955-SKO (HC), 2025 WL 2879328, at *3 (E.D. Cal. Oct. 9, 2025) (“Several

6 courts including the Third, Sixth, and Ninth Circuit, as well as numerous district courts,

7 have found that unreasonably long detention periods may violate the due process

8 clause.” (collecting cases)); Abdul-Samed v. Warden of Golden State Annex Det.

9 Facility, No. 1:25-CV-00098-SAB-HC, 2025 WL 2099343, at *6 (E.D. Cal. July 25,

10 2025) (“[E]ssentially all district courts that have considered the issue agree that

11 prolonged mandatory detention pending removal proceedings, without a bond hearing,

12 ‘will—at some point—violate the right to due process.’” (quoting Martinez v. Clark,

13 No. C18-1669-RAJ-MAT, 2019 WL 5968089, at *6 (W.D. Wash. May 23, 2019),

14 report and recommendation adopted, No. 18-CV-01669-RAJ, 2019 WL 5962685

15 (W.D. Wash. Nov. 13, 2019))); Kydyrali v. Wolf, 499 F.Supp.3d 768, 772 (S.D. Cal.

16 2020) (“[T]he Court joins the majority of courts across the country in concluding that

17 an unreasonably prolonged detention under 8 U.S.C. § 1225(b) without an

18 individualized bond hearing violates due process.”); Banda v. McAleeman, 385

19 F.Supp.3d 1099, 1116-17 (W.D. Wash. 2019).

20 Respondents primarily rely on three cases to support their argument that §

21 1225(b) and its provision for mandatory detention provides all the process that

22 Petitioner is due. ECF No. 11 at 12-13. (citing Thuraissigiam, 591 U.S. 103,

23 Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206 (1953), and Mendoza-Linares

24 v. Garland, 51 F.4th 1146 (9th Cir. 2022)). The Court is not persuaded.

25 In Thuraissigiam, the habeas petitioner argued that the Illegal Immigration

26 Reform and Immigrant Responsibility Act of 1996 violated “his right to due process by

27 precluding judicial review of his allegedly flawed credible-fear proceeding.”

1 applicant for admission, was provided “the right to a determination where he had a

2 significant possibility of establishing eligibility for asylum” pursuant to § 1225(b), and

3 that he had “only those rights regarding admission that Congress had provided by

4 statute.” Id. at 140 (internal quotation marks and brackets omitted) (quoting §§

5 1225(b)(1)(B)(ii), (v)). The Court finds Thuraissigiam addressed a noncitizen’s right to

6 challenge admission, not detention. See, e.g., Gao v. LaRose, No. 25-CV-2084-RSH-

7 SBC, 2025 WL 2770633, at *3 (S.D. Cal. Sept. 26, 2025) (agreeing with district courts

8 that interpret Thuraissigiam “as circumscribing an arriving alien’s due process rights to

9 admission, rather than limiting that person’s ability to challenge detention.”); see also

10 Aviles-Mena v. Kaiser, No. 25-CV-06783-RFL, 2025 WL 2578215, at *4 (N.D. Cal.

11 Sept. 5, 2025) (finding Thuraissigiam inapplicable to cases challenging detention).

12 The Court finds that Mezei and Mendoza-Linares are also distinguishable. Mezei

13 involved a noncitizen who was permanently excluded from the United States on security

14 grounds, not a detainee raising their due process rights in the context of detention

15 without a bond hearing. Mezei, 345 U.S. at 207. The Supreme Court recognized Mezei’s

16 exclusion for security reasons as different from noncitizens who may be released from

17 detention on bond. Id. at 216 (“An exclusion proceeding grounded on danger to the

18 national security, however, presents different considerations; neither the rationale nor

19 the statutory authority for such release exists.”). The facts are significantly different

20 because Petitioner has not been excluded as a security risk, and has appealed his denial

21 of asylum claim, which is currently pending before the BIA. See Rosales-Garcia v.

22 Holland, 322 F.3d 386, 413–14 (6th Cir. 2003) (“[T]he Mezei Court explicitly grounded

23 its decision in the special circumstances of a national emergency and the determination

24 by the Attorney General that Mezei presented a threat to national security.”); Kydyrali,

25 499 F. Supp. 3d at 772 (finding Mezei inapposite to issue of whether prolonged

26 detention without a bond hearing violates due process). In Mendoza-Linares, the

27 Petitioner challenged his negative credible fear determination, which the Ninth Circuit

1 statements suggest he is not satisfied with the IJ’s determination, his Petition before the

2 court does not challenge the IJ’s finding. ECF No. 1. Rather, Petitioner seeks release

3 from custody or a bond hearing pending his appeal of the IJ’s determination.

4 Neither the Ninth Circuit nor the Supreme Court have provided guidance

5 regarding the point at which an immigration detainee’s prolonged mandatory detention

6 becomes unconstitutional. See Rodriguez Diaz v. Garland, 53 F.4th at 1203 (noting the

7 lack of guidance from both the Ninth Circuit and the Supreme court as to “constitutional

8 challenges to bond hearing procedures in the immigration detention context.”).

9 However, Courts in the Ninth Circuit have taken various approaches to determine

10 whether due process requires a bond hearing in cases of prolonged detention. See, e.g.,

11 Banda v. McAleenan at 1117 (using a six-factor test to determine when detention

12 becomes unconstitutional in the context of § 1225(b)); Mathews v. Eldridge, 424 U.S.

13 319 (1976) (applying a three-part test); Lopez v. Garland, 631 F.Supp.3d 870, 879 (E.D.

14 Cal. Sept. 29, 2022) (applying a different three-part test, considering “the total length

15 of detention to date, the likely duration of future detention, and the delays in the removal

16 proceedings caused by the petitioner and the government” in the context of § 1226(c)).

17 This court has used Banda’s six-factor test in deciding whether a petitioner’s

18 mandatory detention under § 1225(b) has become unreasonable and requires a bond

19 hearing. See, e.g., Kadir v. LaRose, 25CV1045-LL-MMP, 2025 WL 2932654 (S.D. Cal.

20 Oct. 15, 2025); Gao, 2025 WL 2770633. We find that Banda’s six-factor analysis is

21 most applicable here.

22 In Banda, the court considered the following factors to determine whether

23 prolonged mandatory detention under § 1225(b) in a particular case violates the Due

24 Process Clause: “(1) the total length of detention to date; (2) the likely duration of future

25 detention; (3) the conditions of detention; (4) delays in the removal proceedings caused

26 by the detainee; (5) delays in the removal proceedings caused by the government; and

27 (6) the likelihood that the removal proceedings will result in a final order of removal.”

1 Banda, 385 F. Supp. 3d at 1118 (quoting Jamal A. v. Whitaker, 358 F. Supp. 3d 853,

2 858–59 (D. Minn. 2019)).

3 The Court first considers the length of detention and likely duration of future

4 detention. The total length of detention to date is considered the most important factor.

5 Id. To date, Petitioner has been in detention for approximately thirteen months. Courts

6 have found detention over seven months without a bond hearing weighs toward a

7 finding that it is unreasonable. See, e.g., Masood v. Barr, No. 19-CV-07623-JD, 2020

8 WL 95633, at *3 (N.D. Cal. Jan. 8, 2020) (finding detention for nearly nine months

9 weighs in favor of the petitioner); Cabral v. Decker, 331 F. Supp. 3d 255, 261 (S.D.N.Y.

10 2018) (over seven months); Perez v. Decker, No. 18-CV-5279 (VEC), 2018 WL

11 3991497, at *5 (S.D.N.Y. Aug. 20, 2018) (over nine months); Brissett v. Decker, 324

12 F. Supp. 3d 444, 452 (S.D.N.Y. 2018) (over nine months). Petitioner’s future detention

13 can last several more months or even years during the adjudication of Petitioner’s appeal

14 to the BIA. See Banda, 385 F. Supp. 3d at 1119 (finding an appeal to the BIA and

15 subsequent judicial review “may take up to two years or longer”). The Court finds this

16 factor weighs in favor of Petitioner.

17 In considering the conditions of detention, “[t]he more that the conditions under

18 which the [noncitizen] is being held resemble penal confinement, the stronger his

19 argument that he is entitled to a bond hearing.” Id. (second alteration in original)

20 (citation omitted). Petitioner states that he has never committed a crime and came to the

21 United States seeking protection. ECF No. 1 at 27. Yet, Petitioner has spent over

22 thirteen months at Otay Mesa Detention Center which courts have found is

23 “indistinguishable from penal confinement.” See, e.g., Kydyrali, 499 F. Supp. 3d at 773.

24 The Court finds this factor weighs in favor of Petitioner.

25 The fourth and fifth factors concern delays in the removal proceedings caused by

26 Petitioner or the government. The fourth factor weighs in favor of Petitioner because

27 the record does not indicate that he has caused any undue delays. The fifth factor weighs

1 for undue delay in the removal proceedings; Petitioner has already had his merits

2 hearing before an immigration judge. Although a decision was issued on September 24,

3 2025, for Petitioner to be removed, that order is non-final as a result of Petitioner’s

4 pending appeal.

5 In considering the “likelihood that the removal proceedings will result in a final

6 order of removal,” the Court considers “whether the noncitizen has asserted any

7 defenses to removal.” Banda, 385 F. Supp. at 1120 (citations omitted). “[W]here a

8 noncitizen has asserted a good faith challenge to removal, ‘the categorical nature of the

9 detention will become increasingly unreasonable.’” Id. (citing Sajous v. Decker, No.

10 18-CV-2447 (AJN), 2018 WL 2357266, at *11 (S.D.N.Y. May 23, 2018)). Petitioner

11 argues that although he had a hearing before an immigration judge and was denied

12 Petitioner’s claims for relief, he argues that the decision “contained several factual

13 errors, such as mischaracterizing the nature, timing and immediacy of threats from

14 Marin.” ECF No. 1 at 17.

15 Specifically, Petitioner contends that he is a medical doctor in Colombia who

16 came to the United States because:

17 Petitioner and his family faced targeted threats from Sergio Marin, a

former commander of the Revolutionary Armed Forces of Colombia

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(FARC) who, as of 2025, serves as a congressman in Colombia’s National

19 Congress following the 2016 peace accords. Marin’s history as a FARC

leader implicates him in ongoing networks of violence, and Petitioner’s

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fear of persecution stems from personal encounters and familial ties that

21 placed them in Marin’s crosshairs, consistent with documented patterns of

post-conflict reprisals against perceived adversaries in Colombia. (internal

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citation omitted). . . . Petitioner’s counsel submitted extensive evidentiary

23 material in support of his applications for asylum, withholding of removal

under the Convention Against Torture (CAT), and related relief, including

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affidavits detailing the threats from Marin, country condition reports,

25 analyses of FARC-related violence in Colombia, legal briefs and

corroborating documentation of familial persecution risks. . . . [The IJ]

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issued a decision denying Petitioner’s claims for relief, that contains

27 several factual and legal errors; such as mischaracterizing the nature,

timing and immediacy of threats from Marin.

1 Specifically, the [immigration] Court appears to have misapprehended the

chronology of events and drew improper inferences from the absence of

2

subsequent incidents of persecution, overlooking the fact that Petitioner

3 and his family fled the country immediately after making the initial report

to the authorities. The Judge’s conclusion that the absence of continued

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harm undermines credibility disregards this critical context and the

5 evidence demonstrating that departure from the country was a direct and

reasonable response to ongoing threats. And interpretive errors, including

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an overly narrow application of the fear of persecution standard under 8

7 U.S.C. § 1158(b)(1)(B) and failure to adequately weigh CAT protections

against acquiescence by Colombian authorities. The Court minimized the

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gravity of the threats and failed to recognize that persecution does not

9 require physical harm but may be established through credible threats of

violence, intimidation, or other severe forms of coercion. In particular, the

10

Judge disregarded critical contextual evidence demonstrating that the

11 individual responsible for the threats—a sitting congressman—was a

former member of the FARC with ongoing ties to dissident groups. This

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background amplifies both the credibility and the seriousness of the

13 threats, revealing a clear nexus between Petitioner’s political opinions and

the persecutor’s motives. There is no final order of removal at this time, as

14

Petitioner's counsel timely filed a notice of appeal to the Board of

15 Immigration Appeals (BIA) on October 3, 2025, challenging the

Immigration Judge’s errors of fact and law.

16

17 ECF No. 1 at 15-17. The Court finds that Petitioner has asserted a good faith challenge

18 to removal, and this factor weighs in Petitioner’s favor.

19 The Court notes that Petitioner appears to suggest that the Court use the Mathews

20 v. Eldridge test. ECF No. 1 at 25. Respondents do not address Banda or Mathews in

21 their Opposition, but rather argue generally that Petitioner’s detention does not violate

22 the Constitution or laws of the United States and that he does not have a right to a bond

23 hearing. See generally Oppo. The Court notes that even under Mathews v. Eldrige test,

24 the factors support granting Petitioner a bond hearing. First, the Court looks to the

25 “private interest that will be affected by the official action.” 424 U.S. at 335. The Court

26 finds that “the private interest affected by the official action is the most significant

27 liberty interest there is – the interest in being free from imprisonment.” Black v. Decker,

1 detention for over thirteen months, so any incursion on his liberty interest is serious. Id.

2 Next, the Court looks to “the risk of an erroneous deprivation risk of such an interest

3 through the procedures used, and the probable value, if any, of additional or substitute

4 procedural safeguards.” Mathews, 424 U.S. at 335. Under § 1225(b)(2)(A), there are no

5 “procedural safeguards” in place to determine whether Petitioner’s detention has

6 become unreasonable. Accordingly, an individualized bond hearing at which an IJ can

7 consider the non-citizen’s dangerousness and risk of flight would add value. See, e.g.,

8 Black, 103 F.4th at 153. Finally, the “Government’s interest, including the function

9 involved and the fiscal and administrative burdens that the additional or substitute

10 procedural requirement would entail” also weigh in favor of Petitioner. Mathews, 424

11 U.S. at 335. Respondents argue that “the government retains an interest in assuring

12 presence at removal” and that “Petitioner’s continued detention continues to serve its

13 purported immigration purpose” (internal quotation and citation omitted). Oppo. at 13.

14 However, a bond hearing does not impact the Government’s ability to assure

15 Petitioner’s presence if he is ultimately removed, and the Government can raise any

16 concerns regarding Petitioner’s danger to the community or his flight risk at the bond

17 hearing before the IJ. In sum, all three Mathews factors favor granting Petitioner a bond

18 hearing.

19 For the reasons stated herein, the Court finds Petitioner’s mandatory detention

20 under § 1225(b) for over 13 months without a bond hearing, in the context of the specific

21 circumstances described above, has become unreasonable and violates due process. See

22 A.L. v. Oddo, 761 F. Supp. 3d 822, 826 (W.D. Pa. Jan. 26, 2025) (granting petition

23 where petitioner was an arriving alien who had been held in custody pursuant to Section

24 1225(b) without a bond hearing for almost 10 months, had been granted withholding of

25 removal, and was pursuing an appeal of the denial of asylum). Petitioner is entitled to a

26 prompt and individualized bond hearing, at which Respondents “must justify his

27 continued detention by a showing of clear and convincing evidence that Petitioner

1 2770633, at *5; Martinez v. Clark, 124 F.4th 775, 786 (9th Cir. 2024) (noting that due

2 || process requires “the government to prove dangerousness or risk of flight by clear and

3 || convincing evidence” at a bond hearing for noncitizens subject to prolonged detention

4 (citing Singh v. Holder, 638 F.3d 1196, 1200, 1205 (9th Cir. 2011))). Accordingly, the

5 Court finds that Petitioner’s continued detention has become unreasonable, and thus,

6 || due process requires that he receives an initial bond hearing.!

CONCLUSION

8 Accordingly, the Court GRANTS IN PART and DENIES IN PART

9 || Petitioner’s Writ of Habeas Corpus.” The Petition is GRANTED as to Petitioner’s

10 || request for a bond hearing and DENIED as to Petitioner’s request for immediate release

11 || from custody. Accordingly, within ten (10) days of the date of service of this order,

12 Respondents shall provide Petitioner with an individualized bond hearing before an

13 ||immigration judge. Because the Court has ruled on Petitioner’s underlying writ of

14 || habeas corpus, the motion for TRO is DENIED AS MOOT. The Petition is DENIED

15 all other respects.

16 IT IS SO ORDERED.

17 || Dated: November 4, 2025 MNO

18 CF |

19 Honorable Linda Lopez

50 United States District Judge

21

22

23 \| ————___———

' Petitioner also requests immediate release from custody (ECF No. 1 at 11, 31).

24 Petitioner provides no authority to support his claim that he 1s entitled to an order of

25 |}release under his circumstances. Therefore, the Court finds that, for the reasons stated

5 in this Order, the appropriate remedy is an initial bond hearing before an immigration

6 judge.

27

28 * Petitioner also requests attorney’s fees and costs under the Equal Access to Justice

Act (““EAJA”), but the Court DENIES without prejudice Petitioner’s request.