Kalayu

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8 UNITED STATES DISTRICT COURT

9 SOUTHERN DISTRICT OF CALIFORNIA

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11 DAWIT FITSUM KALAYU, Case No.: 26cv2394-LL-VET

12 Petitioner,

ORDER GRANTING IN PART AND

13 v. DENYING IN PART AMENDED

PETITION FOR WRIT OF HABEAS

14 MARKWAYNE MULLIN, SECRETARY

CORPUS

OF THE DEPARTMENT OF

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HOMELAND SECURITY, ET AL.,

[ECF No. 8]

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Respondents.

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19 Before the Court is Petitioner Dawit Fitsum Kalayu’s operative Amended Petition

20 for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241. ECF No. 8 (“Pet.”).

21 Respondents filed a Return in opposition to the Petition. ECF No. 10 (“Ret.”). Petitioner

22 filed a Traverse in support of his Petition. ECF No. 11. For the reasons set forth below, the

23 Amended Petition is GRANTED IN PART and DENIED IN PART.

24 I. BACKGROUND

25 Petitioner, a citizen of Ethiopia, alleges that he has been detained by the United

26 States Department of Homeland Security’s (“DHS”) Immigration and Customs

27 Enforcement (“ICE”) division at the Otay Mesa Detention Center since September 20,

28 2025, when he entered the United States. Pet. at 2; see also Decl. of Dawit Fitsum Kalayu

1 at ECF No. 8-1, ¶ 1. He “immediately” turned himself into U.S. Customs and Border

2 Protection officers. Pet. at 2. Mr. Kalayu received a positive credible fear determination

3 and was issued a Notice to Appear. Ret. at 2. Mr. Kalayu applied for asylum, withholding

4 of removal, and relief under the Convention Against Torture. Id.

5 In February 2026, DHS filed a Motion to Pretermit Petitioner’s applications for relief

6 due to Petitioner being subject to the Asylum Cooperative Agreement with Uganda. Id. at

7 3; see also Exhibit 4 to the Return. On February 18, 2026, an immigration judge denied

8 Petitioner’s applications, granted the Motion to Pretermit, and ordered Petitioner removed

9 to Uganda. Id. Petitioner states that the government has “never found” Mr. Kalayu to be a

10 danger “or even a flight risk, much less an emergency threat to national security.” Traverse

11 at 5. Petitioner appealed the removal order to the Board of Immigration Appeals (“BIA”),

12 and the appeal is still pending. Ret. at 2; see also Exhibit 5 to the Return.

13 Petitioner seeks a bond hearing pursuant to 8 U.S.C. § 1225(b) and also argues that

14 the Immigration Judges’ neutrality has been “compromised.” Pet at 15-16. Accordingly,

15 Petitioner seeks either immediate release or additional safeguards on any bond hearing. Id.

16 Respondents filed a Return to the Amended Petition, in which they argue that Petitioner is

17 “mandatorily detained under 8 U.S.C. § 1225(b)(1) and also that the immigration judges’

18 neutrality is not compromised. Ret. at 10-11.

19 For the reasons stated below, the Court GRANTS Petitioner’s request for an

20 individualized bond hearing before an immigration judge and DENIES Petitioner’s request

21 for immediate release and request for a bond hearing before the district court.

22 II. LEGAL STANDARD

23 A federal prisoner challenging the execution of his sentence, rather than the legality

24 of the sentence itself, may file a petition for writ of habeas corpus in the district of his

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

26 able to review challenges to final orders of deportation, exclusion, or removal is the court

27 of appeals. See generally 8 U.S.C. § 1252; see also Alvarez–Barajas v. Gonzales, 418 F.3d

28 1050, 1052 (9th Cir. 2005) (citing REAL ID Act, Pub. L. No. 109-13, 119 Stat. 231, §

1 106(a)). However, for claims challenging ancillary or collateral issues arising

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

3 federal habeas corpus jurisdiction remains in the district court. Nadarajah v. Gonzales, 443

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

5 138 S. Ct. 830 (2018); Alvarez v. Sessions, 338 F. Supp. 3d 1042, 1048–49 (N.D. Cal.

6 2018) (citations omitted).

7 III. DISCUSSION

8 In Respondents’ Return to the Petition, they raise the following arguments: (1)

9 Petitioner’s claim is jurisdictionally barred by 8 U.S.C. § 1252(g); (2) Petitioner is lawfully

10 detained under 8 U.S.C. § 1225(b) and his detention has not become unconstitutionally

11 prolonged as to violate due process; and (3) immigration judges’ neutrality has not been

12 compromised. The Court will address each of these issues in turn.

13 A. Jurisdiction and 8 U.S.C. § 1252

14 The arguments with regards to jurisdiction being barred under 8 U.S.C. § 1252 are

15 identical to those recently addressed by the undersigned in Beltran et al. v. Noem et al.,

16 No. 25CV2650-LL-DEB, 2025 WL 3078837, at *3-4 (S.D. Cal. Nov. 4, 2025). The Court

17 adopts its reasoning as to these issues and incorporates it by reference. See also Martinez

18 Lopez v. Noem et al., No. 25-CV-2717-JES-AHG, 2025 WL 3030457, at *2-3 (S.D. Cal.

19 Oct. 30, 2025) (holding same).

20 B. Detention Under 8 U.S.C. § 1225 and Length of Detention

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

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

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

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

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

26 prolonged mandatory detention pending removal proceedings, without a bond hearing, will

27 — at some point — violate the right to due process.” Singh v. Barr, 400 F. Supp. 3d 1005,

28 1020 (S.D. Cal. 2019) (internal quotation marks and citations omitted) (collecting cases).

1 In determining whether detention has become unreasonable, courts evaluate factors

2 including “the total length of detention to date, the likely duration of future detention, and

3 the delays in the removal proceedings caused by the petitioner and the government.” Lopez

4 v. Garland, 631 F. Supp. 3d 870, 879 (E.D. Cal. 2022). Some courts also consider the

5 conditions of detention and the likelihood that the removal proceedings will result in a final

6 order of removal. See, e.g, Sadeqi v. LaRose, 809 F. Supp. 3d 1090, 1094 (S.D. Cal. 2025).

7 The Court finds that Petitioner has established he is entitled to a bond hearing.

8 Petitioner’s length of detention, over eight months, without a bond hearing weighs in

9 Petitioner’s favor. Courts have found detention of similar lengths without a bond hearing

10 weighs towards a finding that detention has become unreasonable. See, e.g., Guatam v.

11 Corr. Corp of Am., No. 3:25-CV-3600-JES-DEB, 2026 WL 25846, at *4 (S.D. Cal. Jan. 5,

12 2026) (finding that one-year detention weighed in favor of granting a bond hearing);

13 Sadeqi, 809 F. Supp. 3d at 1095 (finding that eleven month detention without a bond

14 hearing “absent meaningful rebuttal by [r]espondents” was unreasonable and violated due

15 process); Amado, 2025 WL 3079052, at *5 (“Courts have found detention over seven

16 months without a bond hearing weighs toward a finding that it is unreasonable.”). The

17 length of detention therefore favors Petitioner.

18 As to the likely duration of future detention, Petitioner argues that he has reason to

19 anticipate significant future detention since his appeal process could go on for an

20 undetermined amount of time. Pet. at 8. The Court agrees, since Respondents “cannot

21 predict with any degree of confidence when the BIA appeal will be resolved.” Masood v.

22 Barr, No. 19-CV-07623-JD, 2020 WL 95633, at *3 (N.D. Cal. Jan. 8, 2020). Therefore,

23 the likely duration of future detention weighs in Petitioner’s favor.

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

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

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

27 therefore, the Petitioner is entitled to a bond hearing.

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1 C. Neutrality Concerns Surrounding Immigration Judges

2 Petitioner argues that the Court should order his immediate release because

3 immigration judges’ neutrality has been “severely compromised.” Pet. at 8. The Court

4 declines to address the issues raised by Petitioner regarding the neutrality of immigration

5 courts. See, e.g., Sandesh v. LaRose, No. 26-CV-0846-JES-DDL, 2026 WL 622690, at *5

6 (S.D. Cal. Mar. 5, 2026). “It is axiomatic that the [Immigration Judge] must apply the

7 proper legal standard to effectuate this Court’s order for a bond hearing.” Id. Indeed,

8 “[d]istrict courts are better positioned to review the implementation of their orders in cases

9 such as this after the bond hearing has occurred, so that the complete record in the case

10 may be fairly evaluated.” Id. (internal citation omitted). Accordingly, Petitioner’s request

11 for immediate release on this ground is DENIED.

12 IV. CONCLUSION

13 Based on the foregoing, the Court GRANTS IN PART AND DENIES IN PART

14 Mr. Kalayu’s Amended Petition for a Writ of Habeas Corpus (ECF No. 8) as follows:

15 1. Mr. Kalayu’s request for immediate release or to have the bond hearing

16 conducted by the district court is DENIED.

17 2. Mr. Kalayu’s alternative request for the Court to order a bond hearing is

18 GRANTED. The Court ORDERS the government to provide Mr. Kalayu

19 with an individualized bond hearing within fourteen (14) days before a

20 neutral immigration judge in which the government bears the burden of

21 establishing by clear and convincing evidence that Mr. Kalayu is a danger to

22 the community or a flight risk if released.

23 3. The immigration judge SHALL consider alternative conditions of release and

24 Mr. Kalayu’s ability to pay bond if he or she determines bond is appropriate.

25 Hernandez v. Sessions, 872 F.3d 976, 990–91 (9th Cir. 2017).

26 4. If requested by Mr. Kalayu, the government SHALL assist Mr. Kalayu in

27 obtaining the audio recording of the bond hearing. Martinez v. Clark, 124

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I F.4th 775, 786 (9th Cir. 2024) (citing Singh v. Holder, 638 F.3d 1196, 1200

2 (9th Cir. 2011)).

3 5. The Clerk of Court shall enter judgment in Mr. Kalayu’s favor and close this

4 case.

5 IT IS SO ORDERED.

6 Dated: June 1, 2026 NO

7 Jc J

g Honorable Linda Lopez

9 United States District Judge

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