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8 UNITED STATES DISTRICT COURT

9 SOUTHERN DISTRICT OF CALIFORNIA

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11 LEI PENG, Case No.: 26-CV-1329 JLS (SBC)

12 Petitioner,

ORDER (1) GRANTING IN PART

13 v. PETITION FOR WRIT OF HABEAS

CORPUS AND (2) DENYING AS

14 KRISTI NOEM, Secretary, Department of

MOOT MOTION FOR

Homeland Security, et al.,

15 APPOINTMENT OF INTERPRETER

Respondents.

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(ECF Nos. 1, 2)

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18 Presently before the Court are Petitioner Lei Peng’s Petition for Writ of Habeas

19 Corpus pursuant to 28 U.S.C. § 2241 (“Pet.,” ECF No. 1) and Motion for Appointment of

20 Interpreter (“Mot.,” ECF No. 2). Also before the Court is Respondents’ Return to Habeas

21 Petition and Notice of Non-Opposition (“Ret.,” ECF No. 5). Petitioner did not file a

22 Traverse. See generally Docket. For the reasons set forth below, the Court GRANTS IN

23 PART the Petition for a Writ of Habeas Corpus and DENIES AS MOOT the Motion for

24 Appointment of Interpreter.

25 BACKGROUND

26 Petitioner, a citizen of China, alleges that he has been detained by the United States

27 Department of Homeland Security’s (“DHS”) Immigration and Customs Enforcement

28 (“ICE”) division at the Otay Mesa Detention Center since August 15, 2025. Pet. ¶ 3.

1 Petitioner originally entered the United States on a B2 Visitor’s visa on December 26,

2 2023, and applied for asylum in 2024. Id. ¶ 1. He later obtained a 180-day work permit.

3 Id. On August 12, 2025, while driving around San Diego for work, Petitioner accidentally

4 drove into Mexico during rush hour. Id. ¶ 2. Immediately thereafter, Petitioner’s attorney

5 completed an I-131 and a request for parole to allow Petitioner to return to the United States

6 to pursue his asylum claim. Id. On August 15, 2025, Petitioner was apprehended at the

7 U.S.-Mexico border. Id. ¶ 3. Respondents charged Petitioner with entering the United

8 States without inspection and valid immigration documents and initiated removal

9 proceedings. Id. ¶¶ 5, 36. Petitioner was denied release by DHS and twice denied a bond

10 hearing on jurisdictional grounds by an Immigration Judge. Id. ¶¶ 6–7. Petitioner alleges

11 that his detention violates the Due Process Clause of the Fifth Amendment and the

12 Administrative Procedure Act. See generally id. Respondents do not oppose a bond

13 hearing for Petitioner in this matter. Ret. at 1.

14 LEGAL STANDARD

15 A federal prisoner challenging the execution of his or her sentence, rather than the

16 legality of the sentence itself, may file a petition for writ of habeas corpus in the district of

17 his confinement pursuant to 28 U.S.C. § 2241. See 28 U.S.C. § 2241(a). The sole judicial

18 body able to review challenges to final orders of deportation, exclusion, or removal is the

19 court of appeals. See generally 8 U.S.C. § 1252; see also Alvarez–Barajas v. Gonzales,

20 418 F.3d 1050, 1052 (9th Cir. 2005) (citing REAL ID Act, Pub. L. No. 109-13, 119 Stat.

21 231, § 106(a)). However, for claims challenging ancillary or collateral issues arising

22 independently from the removal process—for example, a claim of indefinite detention—

23 federal habeas corpus jurisdiction remains in the district court. Nadarajah v. Gonzales,

24 443 F.3d 1069, 1076 (9th Cir. 2006), abrogated on other grounds by Jennings v. Rodriguez,

25 138 S. Ct. 830 (2018); Alvarez v. Sessions, 338 F. Supp. 3d 1042, 1048–49 (N.D. Cal.

26 2018) (citations omitted).

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1 DISCUSSION

2 “Neither the Ninth Circuit nor the Supreme Court have provided guidance regarding

3 the point at which an immigration detainee’s prolonged mandatory detention becomes

4 unconstitutional.” Amado v. United States Dep’t of Just., No. 25CV2687-LL(DDL), 2025

5 WL 3079052, at *5 (S.D. Cal. Nov. 4, 2025). However, “[n]early all district courts that

6 have considered [the constitutionality of prolonged mandatory detention] agree that

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

8 will—at some point—violate the right to due process.” Singh v. Barr, 400 F. Supp. 3d

9 1005 (S.D. Cal. 2019) (internal quotation marks and citations omitted) (cleaned up)

10 (collecting cases). In determining whether detention has become unreasonable, courts

11 evaluate factors including “the total length of detention to date, the likely duration of future

12 detention, and the delays in the removal proceedings caused by the petitioner and the

13 government.” Lopez v. Garland, 631 F. Supp. 3d 870, 879 (E.D. Cal. 2022). Some courts

14 also consider the conditions of detention and the likelihood that the removal proceedings

15 will result in a final order of removal. See, e.g., Sadeqi v. LaRose, No. 25-CV-2587-RSH-

16 BJW, 2025 WL 3154520, at *3 (S.D. Cal. Nov. 12, 2025).

17 The Court finds that Petitioner has established he is entitled to a bond hearing, and

18 Respondents do not oppose this relief. Ret. at 1. Petitioner’s length of detention, over

19 seven months, without a bond hearing weighs in Petitioner’s favor. Courts have found

20 detention of similar lengths without a bond hearing weighs towards a finding that detention

21 has become unreasonable. See, e.g., Guatam v. Corr. Corp of Am., No. 3:25-CV-3600-

22 JES-DEB, 2026 WL 25846, at *4 (S.D. Cal. Jan. 5, 2026) (finding that one-year detention

23 weighed in favor of granting a bond hearing); Sadeqi, 2025 WL 3154520, at *4 (finding

24 that eleven month detention without a bond hearing “absent meaningful rebuttal by

25 [r]espondents” was unreasonable and violated due process); Amado, 2025 WL 3079052, at

26 *5 (“Courts have found detention over seven months without a bond hearing weighs toward

27 a finding that it is unreasonable.”). The length of detention therefore favors Petitioner.

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1 As to the likely duration of future detention, the Court finds that the outcome of

2 Petitioner’s merits proceedings is unknown, and any appeals to follow may take several

3 years. See Guatam, 2026 WL 25846, at *5 (“[A] removal order may not become final until

4 after the appeals Petitioner could file, to both the Board of Immigration Appeals and Ninth

5 Circuit.”). Therefore, the likely duration of future detention weighs in Petitioner’s favor.

6 Delay in removal proceedings is neutral since the record does not suggest delay by

7 Respondents nor Petitioner. See generally Pet.; Ret. Balancing the discussed factors, the

8 Court concludes that Petitioner’s detention has become unreasonably prolonged, and

9 therefore, Petitioner is entitled to a bond hearing.

10 I. Attorney’s Fees

11 Petitioner has requested costs and attorney’s fees in this action pursuant to the Equal

12 Access to Justice Act (“EAJA”), 28 U.S.C. § 2412. Pet. at 64. The EAJA provides in part:

13 A party seeking an award of fees and other expenses shall, within

thirty days of final judgment in the action, submit to the court an

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application for fees and other expenses which shows that the

15 party is a prevailing party and is eligible to receive an award

under this subsection, and the amount sought, including an

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itemized statement from any attorney . . . representing or

17 appearing in behalf of the party stating the actual time expended

and the rate at which fees and other expenses were

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computed. The party shall also allege that the position of the

19 United States was not substantially justified. Whether or not the

position of the United States was substantially justified shall be

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determined on the basis of the record . . . which is made in the

21 civil action for which fees and other expenses are sought.

22 28 U.S.C. § 2412(d)(1)(B).

23 The Court will consider an application requesting reasonable fees and costs under

24 the EAJA that is filed within thirty days of the judgment.

25 CONCLUSION

26 Based on the foregoing, the Court GRANTS IN PART Petitioner’s Petition for a

27 Writ of Habeas Corpus (ECF No. 1), DENIES AS MOOT Petitioner’s Motion for

28 Appointment of Interpreter (ECF No. 2), and ORDERS Respondents to provide Petitioner

1 |} with an individualized bond hearing within fourteen (14) days before a neutral immigration

2 judge in which the government bears the burden of establishing by clear and convincing

3 ||evidence that Petitioner is a danger to the community or a flight risk if released. If no

4 |/hearing occurs within fourteen days of this Order, Petitioner shall be released from

5 || Respondents’ custody.

6 The Parties SHALL file a Joint Status Report by April 10, 2026, informing the Court

7 || of the outcome of the hearing.

8 Lastly, Petitioner’s attorney is directed to submit an attorney fee application and

9 || corresponding billing records within thirty (30) days of this Order, and Respondents are

10 |/instructed to file any opposition within fourteen (14) days of Petitioner’s attorney fee

11 || application.

12 IT IS SO ORDERED.

13 Dated: March 18, 2026

14 jae Janis L. Sammartino

15 United States District Judge

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