L.S.

1

2

3

4

5

6

7

8 UNITED STATES DISTRICT COURT

9 SOUTHERN DISTRICT OF CALIFORNIA

10

11 L.S., Case No.: 25cv3598-LL-BJW

12 Petitioner,

ORDER GRANTING PETITION

13 v. FOR WRIT OF HABEAS CORPUS

UNDER 28 U.S.C. § 2241

14 WARDEN, Otay Mesa Detention Center,

15 Respondent.

[ECF No. 1]

16

17

18 Before the Court is Petitioner L.S.’s Petition for a Writ of Habeas Corpus Under

19 28 U.S.C. § 2241. ECF No. 1 (“Pet.”). Respondent filed a Return in opposition to the

20 Petition [ECF No. 4], and Petitioner filed a Traverse [ECF No. 5]. For the reasons set forth

21 below, the Court GRANTS the Petition.

22 I. BACKGROUND

23 Petitioner L.S. is a native of Kyrgyzstan and citizen of Russia who applied for

24 admission at the San Ysidro Port of Entry on October 25, 2024, along with her husband.

25 ECF No. 4-1 at 2–3; ECF No. 5 ¶¶ 1, 5. She was issued a Notice to Appear, charging her

26 as inadmissible under 8 U.S.C. § 1182(a)(7)(A)(i)(I) as a noncitizen not in possession of a

27 valid entry document, and detained. ECF No. 4-1 at 3. Respondent states that Petitioner

28 / / /

1 remains mandatorily detained by Immigration and Customs Enforcement under

2 8 U.S.C. § 1225(b)(1)(B)(ii). ECF No. 4 at 3.

3 On April 8, 2025, an immigration judge granted Petitioner’s application for asylum.

4 ECF No. 1-2 at 2. The Department of Homeland Security appealed that decision and on

5 October 10, 2025, the Board of Immigration Appeals (BIA) remanded the case back to the

6 immigration judge for additional fact finding on whether Petitioner “has established a well-

7 founded fear of future persecution on account of her political opinion.” ECF No. 4-1 at 9.

8 Petitioner’s merits hearing is currently scheduled for March 10, 2026. ECF No. 5 ¶ 3.

9 On December 2, 2025, an immigration judge denied Petitioner’s request for a

10 custody determination, finding that Petitioner is “an arriving alien” and that the

11 immigration judge lacked jurisdiction. ECF No. 1-2 at 7.

12 On December 15, 2025, Petitioner filed the instant Petition, alleging that her

13 prolonged detention violates the Fifth Amendment’s Due Process Clause, the Immigration

14 and Nationality Act, and the Administrative Procedure Act. Pet. at 6. She seeks a writ of

15 habeas corpus directing Respondent to immediately release her from custody. Id. at 7.

16 II. LEGAL STANDARD

17 A district court may grant a writ of habeas corpus when a petitioner “is in custody

18 in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C.

19 § 2241(c); Magana-Pizano v. I.N.S., 200 F.3d 603, 609 (9th Cir. 1999) (“28 U.S.C. § 2241

20 expressly permits the federal courts to grant writs of habeas corpus to aliens when those

21 aliens are ‘in custody in violation of the Constitution or laws or treaties of the United

22 States.’”). In federal habeas proceedings, the petitioner bears the burden of proving his case

23 by a preponderance of evidence. Lambert v. Blodgett, 393 F.3d 943, 970 n.16 (9th Cir.

24 2004); Bellew v. Gunn, 532 F.2d 1288, 1290 (9th Cir. 1976) (citations omitted).

25 / / /

26 / / /

27 / / /

28 / / /

1 III. DISCUSSION

2 A. Jurisdiction

3 Respondent argues that as a threshold matter, Petitioner’s claims and requested relief

4 are jurisdictionally barred under 8 U.S.C. § 1252(g), 8 U.S.C. § 1252(b)(9), 8 U.S.C.

5 § 1252(a)(5), and 8 U.S.C. § 1252(e)(2). ECF No. 4 at 4–7.

6 1. 8 U.S.C. § 1252(g)

7 Section 1252(g) states that “[e]xcept as provided in this section and notwithstanding

8 any other provision of law (statutory or nonstatutory), including section 2241 of Title 28,

9 or any other habeas corpus provision, . . . no court shall have jurisdiction to hear any cause

10 or claim by or on behalf of any alien arising from the decision or action by the Attorney

11 General to commence proceedings, adjudicate cases, or execute removal orders against any

12 alien under this chapter.” 8 U.S.C. § 1252(g).

13 Respondent argues that Petitioner’s claims are barred because they arise “from the

14 decision or action of the Attorney General to commence proceedings [and] adjudicate

15 cases,” which removes district court jurisdiction. ECF No. 4 at 10.

16 The Court finds § 1252(g) does not bar its jurisdiction over Petitioner’s claims. The

17 Supreme Court has explained that § 1252(g) does not bar jurisdiction for the “universe of

18 deportation claims” but instead “applies only to three discrete actions that the Attorney

19 General may take: her ‘decision or action’ to ‘commence proceedings, adjudicate cases, or

20 execute removal orders.’” Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471,

21 482 (1999); see also Ibarra-Perez v. United States, No. 24-631, 2025 WL 2461663, at *2

22 (9th Cir. Aug. 27, 2025) (“The Supreme Court has instructed that we should read § 1252(g)

23 narrowly.”). The Supreme Court later reiterated this narrow application of § 1252(g):

24 “We did not interpret this language to sweep in any claim that can technically be said to

25 ‘arise from’ the three listed actions of the Attorney General. Instead, we read the language

26 to refer to just those three specific actions themselves.” Jennings v. Rodriguez, 583 U.S.

27 281, 294 (2018) (citation omitted). Petitioner is not challenging the commencement of

28 removal proceedings but is instead claiming a lack of legal authority to detain him for a

1 prolonged time without a bond hearing during proceedings. See Ibarra-Perez, 2025 WL

2 2461663, at *2 (noting that a claim based on a lack of legal authority to execute a removal

3 order due to a violation of a court order, the Constitution, INA, or international law, does

4 not challenge the decision or action to execute a removal order). Therefore,

5 § 1252(g) does not limit the Court’s jurisdiction in this matter.

6 2. 8 U.S.C. § 1252(b)(9) and 8 U.S.C. § 1252(a)(5)

7 Section 1252(b)(9) states that “[j]udicial review of all questions of law and fact,

8 including interpretation and application of constitutional and statutory provisions, arising

9 from any action taken or proceeding brought to remove an alien from the United States

10 under this subchapter shall be available only in judicial review of a final order under this

11 section.” 8 U.S.C. § 1252(b)(9). Section 1252(a)(5) adds that “a petition for review filed

12 with an appropriate court of appeals in accordance with this section shall be the sole and

13 exclusive means for judicial review of an order of removal entered or issued under any

14 provision of this chapter,” except for certain actions challenging orders under § 1225(b)(1).

15 8 U.S.C. § 1252(a)(5), (e).

16 Respondent argues that § 1252(b)(9) and § 1252(a)(5) apply here because they

17 remove the Court’s jurisdiction “to review both direct and indirect challenges to removal

18 orders, including decisions to detain for purposes of removal or for proceedings.” ECF

19 No. 4 at 6.

20 The Court finds § 1252(b)(9) and § 1252(a)(5) do not apply to Petitioner’s claims.

21 The Supreme Court has explained that “§ 1252(b)(9) ‘does not present a jurisdictional bar’

22 where those bringing suit ‘are not asking for review of an order of removal,’ ‘the decision

23 . . . to seek removal,’ or ‘the process by which . . . removability will be determined.’” Dep’t

24 of Homeland Sec. v. Regents of the Univ. of California, 140 S. Ct. 1891, 1907 (2020)

25 (quoting Jennings, 583 U.S. at 294–95). The Ninth Circuit has also recognized that “claims

26 that are independent of or collateral to the removal process do not fall within the scope of

27 § 1252(b)(9).” J.E.F.M. v. Lynch, 837 F.3d 1026, 1032 (9th Cir. 2016). Petitioner is

28 claiming a lack of legal authority to detain her for a prolonged time without a bond hearing,

1 which is not a review for an order of removal, the decision to seek removal, or the process

2 by which removability will be determined. See Jennings, 583 U.S. at 293 (“Interpreting

3 ‘arising from’ [in § 1252(b)(9)] in this extreme way would also make claims of prolonged

4 detention effectively unreviewable.”). Accordingly, § 1252(b)(9), and by extension

5 § 1252(a)(5), do not bar the Court from jurisdiction in this case.

6 3. 8 U.S.C. § 1252(e)(2)

7 Section 1252(e)(2) allows judicial review of expedited removal orders under

8 § 1225(b)(1) in habeas corpus proceedings only to determine (1) “whether the petitioner is

9 an alien,” (2) “whether the petitioner was ordered removed under such section, and”

10 (3) whether the petitioner can prove that he has been lawfully admitted as a permanent

11 resident, a refugee, or has been granted non-terminated asylum. 8 U.S.C. § 1252(e)(2).

12 Respondent argues that “to the extent Petitioner is challenging the removal process,

13 each of Petitioner’s claims fall outside the limited habeas corpus authority provided within

14 § 1252(e)(2).” ECF No. 4 at 7.

15 The Court finds § 1252(e)(2) does not bar its jurisdiction over Petitioner’s claims.

16 Petitioner is not challenging an expedited order of removal because she has not received a

17 final expedited removal order, nor is she challenging the discretionary decision to place

18 her in expedited removal. Instead, Petitioner contends that her prolonged detention without

19 a bond hearing is in violation of the Constitution. “Where a petitioner ‘does not challenge

20 any final order of removal, but challenges his detention prior to the issuance of any such

21 order’ the jurisdiction-stripping provisions do not apply.” Noori v. LaRose,

22 No. 25-CV-1824-GPC-MSB, 2025 WL 2800149, at *8 (S.D. Cal. Oct. 1, 2025) (quoting

23 Flores-Torres v. Mukasey, 548 F.3d 708, 711 (9th Cir. 2008)). Therefore, § 1252(e)(2)

24 does not limit the Court’s jurisdiction in this matter. See Flores-Torres, 548 F.3d

25 at 710–11; Gimenez Gil v. Warden, Otay Mesa Detention Center,

26 No. 3:25-CV-03279-DMS-VET, 2025 WL 3675153, at *2 (S.D. Cal. Dec. 17, 2025);

27 Noori, 2025 WL 2800149, at *7–8.

28 / / /

1 B. Fifth Amendment Due Process Clause

2 Petitioner argues that her prolonged detention without a bond hearing violates the

3 Fifth Amendment’s Due Process Clause. Pet. at 6.

4 Respondent contends there is no due process violation because Petitioner is detained

5 pursuant to § 1225(b)(1), which mandates detention through the conclusion of the removal

6 process, and that is all the process she will receive. ECF No.4 at 7–9.

7 The Due Process Clause of the Fifth Amendment provides that no person shall be

8 “deprived of life, liberty, or property, without due process of law.” U.S. Const. amend. V.

9 “It is well established that the Fifth Amendment entitles aliens to due process of law in

10 deportation proceedings.” Demore v. Kim, 538 U.S. 510, 523 (2003) (citing Reno v. Flores,

11 507 U.S. 292, 306 (1993)). “At the same time, however, this Court has recognized

12 detention during deportation proceedings as a constitutionally valid aspect of the

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

14 immigration detention statutes, including § 1225(b):

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

detention without any process is constitutional or that those who founded our

16

democracy precisely to protect against the government’s arbitrary deprivation

17 of liberty would have thought so. Arbitrary civil detention is not a feature of

our American government. “[L]iberty is the norm, and detention prior to trial

18

or without trial is the carefully limited exception.” United States v. Salerno,

19 481 U.S. 739, 755, 107 S. Ct. 2095, 95 L.Ed.2d 697 (1987). Civil detention

violates due process outside of “certain special and narrow nonpunitive

20

circumstances.” Zadvydas v. Davis, 533 U.S. 678, 690, 121 S. Ct. 2491, 150

21 L.Ed.2d 653 (2001) (internal quotation marks and citation omitted).

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

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

24 § 1225(b) for a prolonged period without an individualized bond hearing may assert a

25 constitutional right to due process. See Sadeqi v. LaRose, No. 25-CV-2587-RSH-BJW,

26 2025 WL 3154520, at *2 (S.D. Cal. Nov. 12, 2025) (“This Court agrees with the majority

27 position that a petitioner detained under Section 1225(b)(1) may assert a due process

28 challenge to prolonged mandatory detention without a bond hearing.”); Maksin v. Warden,

1 Golden State Annex, No. 1:25-CV-00955-SKO (HC), 2025 WL 2879328, at *3 (E.D. Cal.

2 Oct. 9, 2025) (“Several courts including the Third, Sixth, and Ninth Circuit, as well as

3 numerous district courts, have found that unreasonably long detention periods may violate

4 the due process clause.” (collecting cases)); Abdul-Samed v. Warden of Golden State Annex

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

6 July 25, 2025) (“[E]ssentially all district courts that have considered the issue agree that

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

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

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

10 and recommendation adopted, No. 18-CV-01669-RAJ, 2019 WL 5962685 (W.D. Wash.

11 Nov. 13, 2019))); Kydyrali v. Wolf, 499 F. Supp. 3d 768, 772 (S.D. Cal. 2020) (“[T]he

12 Court joins the majority of courts across the country in concluding that an unreasonably

13 prolonged detention under 8 U.S.C. § 1225(b) without an individualized bond hearing

14 violates due process.”); Banda v. McAleenan, 385 F. Supp. 3d 1099, 1116–17 (W.D. Wash.

15 2019).

16 Respondent relies on two cases to support his argument that § 1225(b)(1) and its

17 provision for mandatory detention provides all the process that Petitioner is due, but the

18 Court is not persuaded. ECF No. 4 at 8–9 (citing Dep’t of Homeland Sec. v. Thuraissigiam,

19 591 U.S. 103 (2020), and Shaughnessy v. United States ex rel. Mezei,

20 345 U.S. 206 (1953)). In Thuraissigiam, the habeas petitioner argued that the Illegal

21 Immigration Reform and Immigrant Responsibility Act of 1996 violated “his right to due

22 process by precluding judicial review of his allegedly flawed credible-fear proceeding.”

23 Thuraissigiam, 591 U.S. at 138. The Supreme Court found that the petitioner, as an

24 applicant for admission, was provided “the right to a determination whether he had a

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

26 he had “only those rights regarding admission that Congress has provided by statute.” Id.

27 at 140 (internal quotation marks and brackets omitted) (quoting §§ 1225(b)(1)(B)(ii), (v)).

28 The Court finds Thuraissigiam addressed a noncitizen’s right to challenge admission, not

1 detention. See, e.g., Sadeqi, 2025 WL 3154520, at *2 (“This Court likewise agrees with

2 those district courts that interpret Thuraissigiam as circumscribing an arriving alien’s due

3 process rights to admission, rather than limiting that person’s ability to challenge

4 detention.”); Aviles-Mena v. Kaiser, No. 25-CV-06783-RFL, 2025 WL 2578215, at *4

5 (N.D. Cal. Sept. 5, 2025) (finding Thuraissigiam inapplicable to cases challenging

6 detention).

7 The Court finds Mezei is also distinguishable. Mezei involved a noncitizen who had

8 been “permanently excluded from the United States on security grounds but stranded in his

9 temporary haven on Ellis Island because other countries [would] not take him back.” Mezei,

10 345 U.S. at 207. The Supreme Court recognized Mezei’s exclusion for security reasons as

11 different from noncitizens who may be released from detention on bond. Id. at 216 (“An

12 exclusion proceeding grounded on danger to the national security, however, presents

13 different considerations; neither the rationale nor the statutory authority for such release

14 exists.”). The facts are significantly different because Petitioner has not been excluded as

15 a security risk, does not have a final order of removal, and has been granted asylum. See

16 Rosales-Garcia v. Holland, 322 F.3d 386, 413–14 (6th Cir. 2003) (“[T]he Mezei Court

17 explicitly grounded its decision in the special circumstances of a national emergency and

18 the determination by the Attorney General that Mezei presented a threat to national

19 security.”); Kydyrali, 499 F. Supp. 3d at 772 (finding Mezei inapposite to issue of whether

20 prolonged detention without a bond hearing violates due process).

21 Petitioner contends that applying the three-factor balancing test discussed in

22 Mathews v. Eldridge, 424 U.S. 319 (1976), shows that Petitioner’s prolonged detention

23 without a bond hearing violates her due process rights. ECF No. 5 ¶¶ 40–49.

24 Courts in the Ninth Circuit have used various factor tests to determine whether due

25 process requires a bond hearing in immigration detention cases, including the Mathews

26 test. See e.g., Rodriguez Diaz v. Garland, 53 F.4th 1189, 1206–07 (9th Cir. 2022)

27 (assuming without deciding that the Mathews test applies in a case involving a due process

28 challenge to immigration detention); Maksim v. Annex, No. 1:25-CV-00955-SKO (HC),

1 2025 WL 2879328, at *3–4 (E.D. Cal. Oct. 9, 2025). In the Mathews test, the court

2 considers the following factors to determine whether a party’s procedural due process

3 rights have been violated: (1) “the private interest that will be affected by the official

4 action;” (2) “the risk of an erroneous deprivation of such interest through the procedures

5 used, and the probable value, if any, of additional or substitute procedural safeguards;” and

6 (3) “the Government's interest, including the function involved and the fiscal and

7 administrative burdens that the additional or substitute procedural requirement would

8 entail.” Mathews, 424 U.S. at 335.

9 Considering the first factor, Petitioner has a strong private interest in her liberty.

10 Freedom from detention is a fundamental part of due process protection. See Hernandez v.

11 Sessions, 872 F.3d 976, 993 (9th Cir. 2017) (“[F]reedom from imprisonment is at the ‘core

12 of the liberty protected by the Due Process Clause.’” (quoting Foucha v. Louisiana,

13 504 U.S. 71, 80 (1992))). Therefore, the Court finds this factor weighs in favor of

14 Petitioner.

15 Next, the Court considers the risk of erroneous deprivation of Petitioner’s liberty

16 interest and the probable value of additional procedural safeguards. “In evaluating the risk

17 of erroneous deprivation in the context of noncitizen detention, the Ninth Circuit has

18 looked to whether the detainee has a statutory right to procedural protections, such as

19 individualized custody determinations and the right to seek additional bond hearings

20 throughout detention.” Jensen v. Garland, No. 521CV01195CASAFM, 2023 WL

21 3246522, at *6 (C.D. Cal. May 3, 2023) (citing Rodriguez Diaz, 53 F.4th at 1209–10).

22 Petitioner has been mandatorily detained for almost fifteen months under 8 U.S.C.

23 § 1225(b)(1)(B)(ii), which has no statutory right to seek an individualized custody

24 determination. The statute allows for parole, but the Ninth Circuit has “note[d] that the

25 discretionary parole system available to § 1225(b) detainees is not sufficient to overcome

26 the constitutional concerns raised by prolonged mandatory detention because the parole

27 process is purely discretionary and its results are unreviewable by IJs and release decisions

28 are based on humanitarian considerations and the public interest” instead of the necessity

1 of detention. Abduraimov v. Andrews, No. 1:25-CV-00843-EPG-HC, 2025 WL 2912307,

2 at *6 (E.D. Cal. Oct. 14, 2025) (quoting Rodriguez v. Robbins, 715 F.3d 1127, 1144

3 (9th Cir. 2013)). An immigration judge denied Petitioner’s request for a custody

4 redetermination, finding it lacked jurisdiction because of Petitioner’s mandatory detention

5 under § 1225(b). It is also unclear when Petitioner’s already lengthy detention will end.

6 See Lopez v. Garland, 631 F. Supp. 3d 870, 880 (E.D. Cal. 2022) (“In general, ‘[a]s

7 detention continues past a year, courts become extremely wary of permitting continued

8 custody absent a bond hearing.” (alteration in original) (citation omitted)). Therefore, the

9 Court finds the risk of erroneous deprivation of Petitioner’s liberty interest and the probable

10 value of additional procedural safeguards, such as a bond hearing, is high. Id. at *7 (citation

11 omitted). This factor weighs in favor of Petitioner.

12 Finally, the Court considers the government’s interest in detaining Petitioner without

13 a bond hearing and the fiscal and administrative burdens that a bond hearing would entail.

14 “Providing petitioner with a bond hearing would not impede respondents’ interest in

15 effecting removal or protecting the public, as the purpose of the bond hearing is to

16 determine whether petitioner is a danger or flight risk.” Jensen v. Garland,

17 No. 521CV01195CASAFM, 2023 WL 3246522, at *6 (C.D. Cal. May 3, 2023). A bond

18 hearing before an immigration judge is not overly burdensome. See Abduraimov, 2025 WL

19 2912307, at *7 (“Courts generally have found that the cost of providing a bond hearing is

20 relatively minimal, and there is nothing in the record before this Court demonstrating that

21 providing Petitioner with a bond hearing would be fiscally or administratively

22 burdensome.”); Lopez Reyes v. Bonnar, 362 F. Supp. 3d 762, 777 (N.D. Cal. 2019)

23 (“Considering . . . the minimal cost of conducting a bond hearing, and the ability of the IJ

24 to adjudicate the ultimate legal issue as to whether Petitioner's continued detention is

25 justified, the Court concludes that the government's interest is not as weighty as

26 Petitioner's.”); Singh v. Barr, 400 F. Supp. 3d 1005, 1021 (S.D. Cal. 2019). Therefore, this

27 factor weighs in favor of Petitioner.

28 / / /

1 With all factors weighing in favor of Petitioner, the Court finds due process requires

2 || that she be provided with a bond hearing. At the bond hearing before a neutral immigration

3 judge, Respondent “must justify h[er] continued detention by a showing of clear and

4 || convincing evidence that Petitioner would likely flee or pose a danger to the community if

5 ||released.” Gao v. LaRose, No. 25-CV-2084-RSH-SBC, 2025 WL 2770633, at *5

6 ||(S.D. Cal. Sept. 26, 2025) (citations omitted); Martinez v. Clark, 124 F Ath 775, 786 (9th

7 || Cir. 2024) (noting that due process requires “the government to prove dangerousness or

8 of flight by clear and convincing evidence” at a bond hearing for noncitizens subject

9 ||to prolonged detention (citing Singh v. Holder, 638 F.3d 1196, 1200, 1205 (9th Cir.

10 |/2011))).

11 Accordingly, the Court GRANTS the Petition.

12 CONCLUSION

13 For the reasons above, the Court GRANTS Petitioner’s Petition for Writ of Habeas

14 || Corpus Under 28 U.S.C. § 2241. Within seven days of this Order, Respondent is directed

15 |/to arrange an individualized bond hearing before a neutral immigration judge in which the

16 |}government bears the burden of establishing by clear and convincing evidence that

17 || Petitioner is a danger to the community or a flight risk if released. If no hearing occurs

18 || within seven days of this Order, Petitioner shall be released from Respondent’s custody.

19 IT IS SO ORDERED.

20 Dated: January 20, 2026 NO

21 DE |

22 Honorable Linda Lopez

33 United States District Judge

24

25

26

27

28