Cao Le Minh Khai v. Otay Mesa Immigration Court and Attorney General of the State of California
- Proceeding
- district
- Area
- civil
- Panel
- Cathy Ann Bencivengo (author)
Analysis
The court reviewed a pro se habeas petition and a motion to proceed in forma pauperis (IFP) filed by an immigration detainee. The court denied the IFP motion for failure to provide a completed financial affidavit, warned that the case would be dismissed without prejudice if the filing fee or proper IFP proof is not submitted by January 17, 2026, and noted that the petition is currently deficient for failing to name the immediate custodian.
| What the court decided | The model |
|---|---|
Motion to Proceed In Forma Pauperis (IFP) Denied“Petitioner’s IFP motion is DENIED because Petitioner has not provided the Court with sufficient information to determine their financial status.” | agree with court The court correctly applied the local rule (S.D.Cal. CivLR 3.2) and the requirement for a detailed accounting of assets. The petitioner's short letter did not meet the specific procedural requirements for the district's standardized IFP application. Denying the motion without prejudice to re-filing with proper documentation is the standard procedural response. |
Case Subject to Dismissal Without Prejudice (Conditional)“Because the Court cannot proceed until Petitioner has either paid the $5.00 filing fee or has qualified to proceed IFP, this case is subject to dismissal without prejudice.” | agree with court The court is exercising its authority to manage the docket and enforce filing fee requirements. Setting a deadline to cure the deficiency (pay fee or provide IFP proof) before dismissal is a standard and appropriate procedural measure. |
Petition Deemed Deficient for Failure to Name Immediate Custodian“the current Petition is deficient because it fails to name the warden of the facility where Petitioner is detained.” | agree with court The court correctly identified a jurisdictional/procedural defect in the habeas petition. Under 28 U.S.C. § 2241 and Ninth Circuit precedent, the immediate custodian must be named. The court did not dismiss the petition on this ground immediately but warned that jurisdiction cannot be exercised without an amendment, which is a reasonable approach for a pro se litigant. |
The order itself: sound — The order is procedurally sound. It correctly applies the local rule for IFP applications, cites the correct Ninth Circuit authority for the proper respondent in a habeas case, and provides clear instructions and a deadline for the pro se petitioner to cure the deficiencies. It also helpfully provides contact information for the Federal Defenders.
Opinion
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 CAO LE MINH KHAI, Case No.: 3:25-cv-3611-CAB-AHG 12 Petitioner, ORDER DENYING MOTION TO 13 v. PROCEED IFP 14 OTAY MESA IMMIGRATION COURT, [Doc. No. 2] and ATTORNEY GENERAL OF THE 15 STATE OF CALIFORNIA, 16 Respondents. 17 18 Petitioner Cao Le Minh Khai (“Petitioner”), an immigration detainee housed at the 19 Otay Mesa Detention Center proceeding pro se, filed a petition for writ of habeas corpus 20 pursuant to 28 U.S.C. § 2241. [Doc. No. 1.] Petitioner also filed a motion to proceed in 21 forma pauperis (“IFP”). [Doc. No. 2.] Upon review, Petitioner’s IFP motion is DENIED 22 because Petitioner has not provided the Court with sufficient information to determine their 23 financial status. 24 An IFP motion must include a completed affidavit with a statement of all assets 25 showing an inability to pay the $5.00 filing fee. See S.D.Cal. CivLR 3.2. The Southern 26 District of California has a standardized application to proceed IFP which requires a 27 detailed accounting of income and expenses that is signed by the requestor. While 28 1 || Petitioner submitted a short letter generally stating they are “not working and [] do not have 2 ||a checking account|,]” [see Doc. No. 2 at 1], Petitioner has not submitted a completed 3 || application with a statement of all assets in accordance with this District’s application. 4 Accordingly, the Court DENIES the IFP motion. [Doc. No. 2.] Because the Court 5 ||}cannot proceed until Petitioner has either paid the $5.00 filing fee or has qualified to 6 || proceed IFP, this case is subject to dismissal without prejudice. To avoid dismissal of this 7 ||habeas case, Petitioner must, no later than January 17, 2026: (1) pay the $5.00 filing fee 8 ||OR (2) submit adequate proof of his inability to pay the fee. For Petitioner’s convenience, 9 || the Clerk of Court SHALL attach to this Order a blank application to proceed IFP. 10 Given Petitioner’s position as a pro se litigant, the Court notes that the current 11 || Petition is deficient because it fails to name the warden of the facility where Petitioner is 12 || detained. Habeas petitioners “challenging their present physical confinement [must] name 13 immediate custodian, the warden of the facility where they are detained, as the 14 respondent to their petition.” Doe v. Garland, 109 F.4th 1188, 1197 (9th Cir. 2024). Even 15 Petitioner submits a completed IFP application and the Court grants it, the Court cannot 16 || exercise jurisdiction unless the petition is amended to name as respondent the warden of 17 || the detention facility where Petitioner is detained. 18 Finally, Petitioner may be interested in contacting Federal Defenders of San Diego 19 || to see if a Federal Defender can represent Petitioner in this matter. The telephone number 20 || for Federal Defenders’ San Diego Office is 619-234-8467 (Toll Free: 888-614-9867) and 21 El Centro Office 1s 760-335-3510 (Toll Free: 877-404-9063). 22 Itis SO ORDERED. 23 Dated: December 17, 2025 ( (jp — 24 Hon. Cathy Ann Bencivengo 5 United States District Judge 26 27 28