# Kalayci

> District Court, S.D. California · July 17, 2026

URL: https://www.frixlaw.com/law-library/cases/11416315

## Case

- **Full name:** Firat Kalayci v. Warden, Otay Mesa Detention Center, et al
- **Court:** District Court, S.D. California
- **Decided:** July 17, 2026
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
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11 FIRAT KALAYCI, Case No.: 26-cv-642-BJC-BJW
12 Petitioner, ORDER:

13 v.
(1) GRANTING IN PART PETITION
14 FOR WRIT OF HABEAS CORPUS
PURSUANT TO 28 U.S.C. § 2241;
15 WARDEN, Otay Mesa Detention Center,

et al,
16 (2) DENYING MOTIONS TO
Respondents. EXPEDITE AS MOOT [ECF NOS. 13,
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19]; AND
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(3) DENYING MOTION TO VACATE
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[ECF NO. 16.]
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21 Pending before the Court is Petitioner Firat Kalayci’s Petition for Writ of Habeas
22 Corpus pursuant to 28 U.S.C. section 2241, along with two motions to expedite. ECF No.
23 1, 13, 19. Respondent filed a Return, and Petitioner filed a Reply. Respondent has also
24 filed a Motion to Vacate the Court’s Order prohibiting Respondent from removing
25 Petitioner during the pendency of this action. ECF No. 16. Petitioner filed an opposition
26 to the Motion to Vacate. ECF No. 17.
27 I. BACKGROUND
28 Petitioner is a citizen of Turkey who entered the United States without inspection
1 near Tecate, California on April 10, 2023. ECF No. 14 at 1. He was served with a Notice
2 to Appear, charging him as removable under section 212(a)(6)(A)(i) of the Immigration
3 and Nationality Act, and he was afforded an opportunity to apply for asylum-related relief.
4 On August 22, 2025, an immigration judge conducted a bond redetermination hearing and
5 found that Petitioner was not a danger to the community. Petitioner was granted bond in
6 the amount of $11,500 to minimize any flight risk. ECF No. 1-4 Exhibit A at 5. However,
7 the bond order was later vacated on jurisdictional grounds in light of the Board of
8 Immigration Appeals’ (“BIA”) decision in Matter of Yajure Hurtado, 29 I. & N. Dec. 216
9 (BIA 2025). Id.
10 On December 16, 2025, an immigration judge granted Petitioner’s request for
11 voluntary departure. Id. at 2. At that hearing, Petitioner’s counsel indicated Petitioner
12 waived appeal. Id. On January 23, 2026, Petitioner filed a motion to reopen his removal
13 proceedings, asserting that his waiver of appeal was not knowing, intelligent, or voluntary
14 and that his prior counsel’s representation was ineffective. On March 10, 2026, an
15 immigration judge denied Petitioner’s motion, finding Petitioner “failed to demonstrate
16 that his prior counsel's representation was ineffective[.]” ECF No. 14, Exhibit 2. The
17 immigration judge then entered a Final Order of Removal for Petitioner. On April 3, 2026,
18 Petitioner filed an appeal of the immigration judge’s order with the BIA.
19 Respondents filed a Return on March 31, 2026, arguing that Petitioner is subject to
20 mandatory detention under 8 U.S.C. § 1231(a) because he is now subject to the March 10,
21 2026 Final Order of Removal. ECF No. 14 at 1. They further argue that Petitioner’s
22 detention has not become prolonged because the removal period began March 10, 2026,
23 and his detention was less than 90-days when the Return was filed, which is well below
24 the six-month presumptively reasonable period of further detention. ECF No. 14, 3-4.
25 On April 7, 2026, Petitioner filed a Reply, arguing that the underlying removal order
26 is not administratively final because he has appealed the denial of the Motion to Reopen to
27 the BIA. ECF No. 15.
28 On April 21, 2026, Respondents filed a Motion to Vacate Prohibition of Petitioner’s
1 Removal, stating that “the San Diego Field Office of ICE Enforcement and Removal
2 Operations (ERO) has obtained a travel document authorizing Petitioner’s travel to
3 Turkey” and removal to Turkey is imminent. ECF No. 16. In order to effectuate
4 Petitioner’s removal, Respondents request that the Court vacate its prior order enjoining
5 them from removing Petitioner and confirm that “Respondent is not precluded from
6 removing Petitioner to Turkey during the pendency of this habeas action.” Id.
7 In response, Petitioner argues that vacating the existing protection against removal
8 during the pendency of this habeas action would cause prejudice to him. ECF No. 17 at 1.
9 In addition, Petitioner argues that it would be improper for the Court to vacate the prior
10 Order while he has a pending BIA appeal challenging the waiver underlying his Final Order
11 of Removal proceedings. Id. at 4.
12 II. LEGAL STANDARD
13 Courts may grant habeas corpus relief to those “in custody in violation of the
14 Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241; see also Hamdi v.
15 Rumsfeld, 542 U.S. 507, 525 (2004) (“[T]he writ of habeas corpus remains available to
16 every individual detained within the United States.”) Courts are authorized to grant writs
17 pursuant to § 2241 to noncitizens in custody in violation of the Constitution or laws or
18 treaties of the United States. Magana-Pizano v. I.N.S., 200 F.3d 603, 609 (9th Cir. 1999).
19 III. DISCUSSION
20 In his Petition, Petitioner seeks immediate release or a constitutionally adequate
21 bond hearing on the basis that his detention has become prolonged. He contends he has
22 been in custody since July 23, 2025, without any current individualized finding that he is
23 dangerous or a flight risk.1 The Court agrees.
24

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26 1 Petitioner argues at length that he is entitled to release due to medical neglect and unconstitutional
conditions of confinement. ECF No. 1 at 6; ECF No. 13 at 2; 15 at 6; ECF No. 17 at 4; ECF No. 19 at 3.
27 However, Petitioner’s allegations concerning his medical care and conditions of confinement are not
proper grounds for relief pursuant to § 2241. Nettles v. Grounds, 830 F.3d 922, 933 (9th Cir. 2016)(“We
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1 The procedural posture of this case is unique. Petitioner entered the United States
2 without inspection and was granted bond. However, bond was later revoked. Petitioner was
3 then granted voluntary departure, but he later challenged his waiver of appeal to the BIA.
4 Subsequently, the immigration court issued a Final Order of Removal, but Petitioner claims
5 it is invalid due to the defective waiver.
6 The first issue before the Court is whether Petitioner’s pending BIA appeal means
7 that his order of deportation is not final. If there is no Final Order of Removal, section 1231
8 does not dictate mandatory detention, as Respondents argue. The parties agree that
9 Petitioner has a pending BIA appeal and neither has provided any evidence that the appeal
10 has been concluded. Accordingly, the Court concludes that Petitioner’s order of removal is
11 not yet “administratively final” and “he is not subject to mandatory detention as the
12 removal period has not yet begun.” Fuga v. Warden, 2026 WL 1396685, *3 (E.D.Cal. May
13 19, 2026)(“Because the BIA accepted Petitioner's appeal and such appeal remains pending,
14 Petitioner's order of deportation is not final and cannot be executed while the appeal is
15 pending.”); 8 C.F.R. § 1003.6(a). Typically, the voluntary departure period “does not begin
16 to run until administrative appeals are concluded.” Dada v. Mukasey, 554 U.S. 1, 10–11
17 (2008); 8 U.S.C. § 1101(a)(47)(B) (“The order [of deportation] ... shall become final upon
18 the earlier of—(i) a determination by the [BIA] affirming such order; or (ii) the expiration
19 of the period in which the alien is permitted to seek review of such order by the [BIA]”).
20 Accordingly, Petitioner is detained pursuant to 8 U.S.C. § 1225 as an arriving
21 noncitizen detained at the border. See 8 U.S.C. § 1225(b). Many courts have determined
22 that prolonged detention without a constitutionally adequate bond hearing can violate a
23 detainee’s due process rights, even if held under § 1225. Sandesh v. LaRose, 2026 WL
24 622690, *2 (S.D. Cal. March 5, 2026)(collecting cases). When considering whether a
25 Petitioner’s due process rights have been violated in these circumstances, district courts
26 apply the six-factor test announced in Banda v. McAleenan, 385 F. Supp. 3d 1099, 1118
27 (W.D. Wash. 2019). Under Banda, the court weighs: “(1) the total length of detention to
28 date; (2) the likely duration of future detention; (3) the conditions of detention; (4) delays
1 in the removal proceedings caused by the detainee; (5) delays in the removal proceedings
2 caused by the government; and (6) the likelihood that the removal proceedings will result
3 in a final order of removal.”
4 The Court first considers Petitioner’s length of detention, the “most important
5 factor.” Banda, 385 F.Supp 3d at 1118. Petitioner claims that he has been detained for
6 almost 12 months, since July 23, 2025. However, Respondents argue that the length of
7 detention should run from March 10, 2026, when the Final Order of Removal was issued.
8 However, Petitioner’s appeal to the BIA casts the finality of that Order into doubt.
9 Therefore, the Court agrees with Petitioner. The last bond hearing conducted in Petitioner’s
10 case was August 22, 2025, over 11 months ago. There has been no meaningful review of
11 his detention since that time. Thus, this factor weighs in his favor. See, Hoyos Amado v.
12 U.S. Dept. Justice, 2025 WL 3079052, at *5 (S.D. Cal. No. 4, 2025) (“Courts have found
13 detention over seven months without a bond hearing weighs toward a finding that it is
14 unreasonable.”) (collecting cases).
15 The second Banda factor also weighs in Petitioner’s favor because the duration of
16 future detention is unclear in light of Petitioner’s pending BIA appeal. Although
17 Respondents argue that Petitioner can be removed immediately because the San Diego
18 ERO Office has travel documents authorizing Petitioner’s removal to Turkey, the validity
19 of the Final Order of Removal is the basis for the appeal. Removal is generally paused
20 while a petitioner has an ongoing appeal to the BIA, unless the individual waives appeal.
21 8 C.F.R. § 1003.6(a) (2007) (“[T]he decision in any proceeding under this chapter from
22 which an appeal to the Board may be taken shall not be executed during the time allowed
23 for the filing of an appeal unless a waiver of the right to appeal is filed, nor shall such
24 decision be executed while an appeal is pending . . .”) Here, Petitioner has filed an appeal
25 with the BIA challenging the sufficiency of his waiver of appeal, therefore, removal during
26 pendency of this action is generally prohibited.
27 The third Banda factor looks to the conditions of confinement. “The more that the
28 conditions under which the noncitizen is being held resemble penal confinement, the
1 || stronger his argument that he is entitled to a bond hearing.” Banda, 385 F. Supp. 3d at 1119
2 ||(citation omitted). Courts have recognized that the conditions at Otay Mesa Detention
3 || Center are “indistinguishable from penal confinement.” See Kydyrali v. Wolf, 499 F. Supp.
4 || 3d 768, 773 (S.D.Cal. Nov. 4, 2020); Amado, 2025 WL 3079052, at *6. Accordingly, the
5 || Court finds that the third factor also weighs in favor of Petitioner.
6 The Court considers the fourth and fifth Banda factors together and finds they are
7 ||neutral because there are no apparent delays in the removal proceedings caused by
8 || Petitioner or Respondents. As to the sixth, and final, factor, 1t is unclear whether there is a
9 || likelihood that the removal proceedings will result in a final order of removal under the
10 || present circumstances. Therefore, this factor does not weigh for or against Petitioner.
11 In sum, Petitioner’s length of detention without a meaningful individualized
12 determination justifying his continuing custody violates the constitution under the Banda
13 || factors.
14 IV. CONCLUSION AND ORDER
15 For the foregoing reasons, the Court:
16 (1)GRANTS the habeas petition in part and ORDERS that Respondents provide
17 Petitioner with a constitutionally adequate bond hearing no later than July 31,
18 2026.
19 (2) DENIES Petitioner’s Motions to Expedite as moot [ECF Nos. 13, 19]; and
20 (3) DENIES Respondents Motion to Vacate and
21 (4) PROHIBITS Respondents from removing Petitioner until the conclusion of the
22 bond hearing.
23 (5) The Clerk of Court is directed to close the case.
24 IT IS SO ORDERED.
25 || Dated: July 17, 2026
27 Honorable Benjamin J. Cheeks
28 United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11416315. Public record. Not legal advice.