The opinion
1
2
3
4
5
6
7
8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
10
11 MANH TUAN NGUYEN, Case No.: 26-cv-3067-BJC-BJW
12 Petitioner, ORDER GRANTING IN PART
PETITION FOR WRIT OF HABEAS
13 v.
CORPUS
14 MARKWAYNE MULLIN, et al.,
15 Respondents.
16
17
Pending before the Court is Petitioner Manh Tuan Nguyen’s Petition for a Writ of
18
Habeas Corpus pursuant to 28 U.S.C. § 2241. ECF No. 1. Petitioner asserts his continued
19
detention exceeds statutory authority and violates the due process clause of the United
20
States Constitution. ECF No. 1. Petitioner requests that this Court assume jurisdiction over
21
the matter, grant the Petition and order Respondents to release him from custody or
22
schedule a bond hearing before an immigration judge.
23
I. BACKGROUND
24
Petitioner is a native and citizen of Vietnam, who entered the United States without
25
inspection through the San Ysidro Point of Entry, California, on November 10, 2025.
26
Petitioner did not have valid entry documents to enter the United States and had not been
27
admitted or paroled into the United States. He was determined to be inadmissible under 8
28
1 U.S.C. § 1225(b)(1). He was taken into Immigration and Customs Enforcement (ICE)
2 custody. An asylum officer interviewed Petitioner pursuant to 8 U.S.C. § 1225(b)(1)(B)
3 and found Petitioner to have a credible fear of persecution.
4 Petitioner has applied for relief from removal before an immigration judge, including
5 asylum under 8 U.S.C. § 1158 and withholding of removal under 8 U.S.C. § 1231(b)(3).
6 The first master calendar hearing was scheduled for December 22, 2025. The merits
7 hearing was held on April 27, 2026. An immigration judge ordered Petitioner removed to
8 Vietnam. Petitioner has appealed the removal order to the Board of Immigration Appeals
9 (BIA). As a result, there is no administratively final order of removal. Petitioner has
10 remained in ICE custody since his entry into the United States.
11 II. LEGAL STANDARD
12 A federal prisoner challenging the execution of his or her sentence, rather than the
13 legality of the sentence itself, may file a petition for writ of habeas corpus in the district of
14 his confinement pursuant to 28 U.S.C. § 2241. See 28 U.S.C. § 2241(a). The sole judicial
15 body able to review challenges to final orders of deportation, exclusion, or removal is the
16 court of appeals. See generally 8 U.S.C. § 1252; see also Alvarez–Barajas v. Gonzales, 418
17 F.3d 1050, 1052 (9th Cir. 2005) (citing REAL ID Act, Pub. L. No. 109-13, 119 Stat. 231,
18 § 106(a)). However, for claims challenging ancillary or collateral issues arising
19 independently from the removal process—for example, a claim of indefinite detention—
20 federal habeas corpus jurisdiction remains in the district court. Nadarajah v. Gonzales, 443
21 F.3d 1069, 1076 (9th Cir. 2006), abrogated on other grounds by Jennings v. Rodriguez,
22 III. DISCUSSION
23 A. Jurisdiction
24 Respondents argue that this Court lacks jurisdiction under 8 U.S.C. § 1252(g)
25 because Petitioner’s claim arises from the decision to commence removal proceedings.
26 ECF No. 5 at 3-4. The Court disagrees.
27 Section 1252(g) provides that “no court shall have jurisdiction to hear any cause or
28 claim by or on behalf of any alien arising from the decision or action by the Attorney
1 General to commence proceedings, adjudicate cases, or execute removal orders against any
2 alien under this chapter.” 8 U.S.C. § 1252(g). Section 1252(g) should be read “narrowly”
3 as to apply “only to three discrete actions that the Attorney General may take: her ‘decision
4 or action’ to ‘commence proceedings, adjudicate cases, or execute removal orders.’”
5 Ibarra-Perez v. United States, No. 24-631, 2025 WL 2461663, at *6 (9th Cir. Aug. 27,
6 2025) (quoting Reno v. American-Arab Anti-Discrimination Committee, 525 U.S. 471, 482,
7 487 (1999)). Section 1252(g) “does not prohibit challenges to unlawful practices merely
8 because they are in some fashion connected to removal orders.” Id. at *7. Section 1252(g)
9 does not bar due process claims. Walters v. Reno, 145 F.3d 1032, 1052–53 (9th Cir. 1998)
10 (finding that the petitioners’ objective was not to review the merits of their proceeding, but
11 rather “to enforce their constitutional rights to due process in the context of those
12 proceedings”).
13 Here, Petitioner does not challenge the decision to commence removal proceedings
14 or any act to adjudicate or execute a removal order. Instead, Petitioner is challenging his
15 prolonged detention without a bond hearing. Petitioner is enforcing his “constitutional
16 rights to due process in the context of the removal proceedings—not the legitimacy of the
17 removal proceedings or any removal order.” Garcia v. Noem, No. 25-CV-2180-DMS-
18 MMP, 2025 WL 2549431, at *4 (S.D. Cal. Sept. 3, 2025). Accordingly, § 1252(g) does not
19 divest the Court of jurisdiction.
20 B. Merits
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,
27 will—at some point—violate the right to due process.” Singh v. Barr, 400 F. Supp. 3d 1005
28 (S.D. Cal. 2019) (internal quotation marks and citations omitted) (cleaned up) (collecting
1 cases). To determine whether continued mandatory detention without a bond hearing has
2 become unreasonable, “the Court will look to the total length of detention to date, the likely
3 duration of future detention, and the delays in the removal proceedings caused by the
4 petitioner and the government.” Lopez v. Garland, 631 F. Supp. 3d 870, 879 (E.D. Cal.
5 2022).
6 First, Petitioner has been detained since November 10, 2025, a period of nine
7 months. Under the circumstances of the present case, the length of detention without a bond
8 hearing weighs in favor of Petitioner. See Hoyos Amado, 2025 WL 3079052, at *5 (“Courts
9 have found detention over seven months without a bond hearing weighs toward a finding
10 that it is unreasonable.”) (collecting cases); Tonoyan v. Andrews, No. 1:25-CV-00815-SKO
11 (HC), 2025 WL 3013684, at *4 (E.D. Cal. Oct. 28, 2025) (“Petitioner has been detained
12 approximately 11 months. This period ... qualifies as prolonged.”); Gao, 2025 WL
13 2770633, at *5 (“The Court finds that Petitioner's detention for over 10 months without a
14 bond hearing, in the context of the specific circumstances described above, has become
15 unreasonable and violates due process.”); Lopez v. Garland, 631 F. Supp. 3d 870, 879 (E.D.
16 Cal. 2022) (“Petitioner has been in immigration detention ... approximately one year.
17 District court have found shorter lengths of detention ... without a bond hearing to be
18 unreasonable.”) (collecting cases).
19 Next, Petitioner has an appeal to the BIA pending which makes it uncertain, at best,
20 how long his detention will last. See Masood v. Barr, No. 19-CV-07623-JD, 2020 WL
21 95633, at *3 (N.D. Cal. Jan. 8, 2020) (noting that the “government cannot predict with any
22 degree of confidence when the BIA appeal will be resolved”). Therefore, this factor weighs
23 in favor of Petitioner. Finally, neither the government nor Petitioner appear to have caused
24 delays in the removal proceedings, making this factor neutral.
25 In sum, the circumstances here weigh in favor of Petitioner’s right to a prompt and
26 individualized bond hearing at which Respondents must justify his continued detention by
27 a showing of clear and convincing evidence that he would likely flee or pose a danger to
28 the community if released.
l IV. CONCLUSION AND ORDER
2 For the foregoing reasons, the Court GRANTS the petition for a writ of habeas
3 ||corpus. Respondents shall provide Petitioner with a constitutional adequate bond hearing
4 ||no later than September 18, 2026. Respondents are enjoined from transferring Petitioner
5 || before a bond hearing takes place. The Court DENIES Respondents’ Motion for Extension
6 || of Time as moot (ECF No. 4) and DENIES Petitioner’s Motion to Expedite (ECF No. 11)
7 || as moot.
8 IT IS SO ORDERED.
9 Dated: September 4, 2026
10
12
13 Honorable Benjamin J. Cheeks
United States District Judge
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28