The opinion
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8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
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11 Case No.: 26cv3443 DMS VET
MALIK SAIR JAN,
12 O R D E R D E N Y I N G W I T H O UT
13 Petitioner, PREJUDICE PETITION FOR WRIT
v. OF HABEAS CORPUS
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CHRISTOPHER J. LAROSE, Warden,
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Otay Mesa Detention Center; DANIEL
16 BRIGHTMAN, Field Office Director, San
Diego Office of Detention and Removal;
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TODD M. LYONS, Acting Director,
18 KRISTI NOEM, Secretary, U.S.
Department of Homeland Security
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(“DHS”); U.S. Department of Homeland
20 Security; and PAMELA BONDI, Attorney
General, U.S. Department of Justice.
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Respondents.
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24 This is the second case filed by Petitioner in this Court. In the first case, Case No.
25 26cv0017 DMS VET, Petitioner alleged his continued detention without a bond hearing
26 violated his due process rights. Case No. 26cv0017 DMS VET, ECF No. 11. The Court
27 agreed with Petitioner and ordered Respondents to provide him with a bond hearing.
28 Because the Court’s order was silent on the burden of proof for the bond hearing, the
1 immigration judge placed the burden on Petitioner to establish his entitlement to bond. The
2 immigration judge found Petitioner did not meet that burden, and therefore denied
3 Petitioner’s request for bond. (Return, Ex. 5.)
4 After that bond decision, the immigration judge held a merits hearing on Petitioner’s
5 case following a remand order from the Board of Immigration Appeals (“BIA”).1 After
6 that hearing, the immigration judge denied Petitioner’s request for deferral of removal
7 under the CAT, and ordered Petitioner removed to Afghanistan. (Return, Ex. 6.) Petitioner
8 did not appeal that decision to the BIA, therefore his removal order became final on March
9 23, 2026.
10 On June 7, 2026, Petitioner filed the present case, again arguing that his prolonged
11 detention violates his due process rights. In their Return, Respondents assert that in light
12 of Petitioner’s removal order, Petitioner’s detention is now governed by 8 U.S.C. §
13 1231(a). Under that statute, Petitioner must be detained for the first 90 days post final
14 removal order, or until June 21, 2026.2 Thus, Respondents argue Petitioner’s claim is not
15 yet ripe, and will not be ripe until at least September 24, 2026, according to Zadvydas v.
16 Davis, 533 U.S. 678 (2001).
17 Petitioner did not file a Traverse, so his position on these issues is unclear. The
18 record, however, is clear that Petitioner is currently subject to a final removal order, and
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1 In his original merits hearing, the immigration judge granted Petitioner’s request for deferral of removal
26 to Afghanistan under the Convention Against Torture (“CAT”). (Return, Ex. 2.) The Department of
Homeland Security appealed that decision to the BIA, (Return, Ex. 3), which vacated the immigration
27 judge’s decision and remanded the case back to the immigration judge for further fact finding. (Return,
Ex. 4.)
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| six-month presumptively reasonable period of detention under Zadvydas has not yet
2 ||expired. Accordingly, the Petition is denied without prejudice.
3 IT IS SO ORDERED.
4 Dated: July 29, 2026 am Sebo
5 in YA.
‘ Hon. Dana M. Sabraw
United States District Judge
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