Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DMITRII MARKOV, Case No.: 25-CV-3811 JLS (SBC)

12 Petitioner, ORDER GRANTING IN PART 13 v. AMENDED PETITION FOR WRIT OF HABEAS CORPUS 14 CHRISTOPHER J. LAROSE, Field Office Director, U.S. Immigration and 15 (ECF No. 10) Customs Enforcement, San Diego Field 16 Office, et al., 17 Respondents. 18 19 Presently before the Court is Dmitrii Markov’s Amended Petition for Writ of Habeas 20 Corpus pursuant to 28 U.S.C. § 2241 (“Pet.,” ECF No. 10). Also before the Court is 21 Respondents’ Response to Amended Petition for Writ of Habeas Corpus (“Ret.,” ECF 22 No. 12). Petitioner did not file a Traverse. See generally id. For the reasons set forth 23 below, the Court GRANTS IN PART the Amended Petition for a Writ of Habeas Corpus. 24 BACKGROUND 25 Petitioner, a Russian national, alleges that he has been detained by the United States 26 Department of Homeland Security’s (“DHS”) Immigration and Customs Enforcement 27 (“ICE”) division at the Otay Mesa Detention Center since January 13, 2024, when he 28 entered the United States through the CBP One Program. Pet. ¶ 1; Ret. at 1. ICE thereafter 1 initiated removal proceedings, and Petitioner applied for asylum. Ret. at 1–2. Petitioner 2 contends that his merits proceedings have been rescheduled on twelve occasions. Pet. ¶¶ 3 4, 6. The original date for Petitioner’s final merits hearing was December 2, 2025. Id. The 4 hearing is now set for May 11, 2026. Id. ¶ 4. Petitioner alleges his continued detention, 5 now over thirteen months, without a bond hearing violates the Immigration and Nationality 6 Act and the Due Process Clause of the Fifth Amendment. See generally id. 7 LEGAL STANDARD 8 A federal prisoner challenging the execution of his or her sentence, rather than the 9 legality of the sentence itself, may file a petition for writ of habeas corpus in the district of 10 his confinement pursuant to 28 U.S.C. § 2241. See 28 U.S.C. § 2241(a). The sole judicial 11 body able to review challenges to final orders of deportation, exclusion, or removal is the 12 court of appeals. See generally 8 U.S.C. § 1252; see also Alvarez–Barajas v. Gonzales, 13 418 F.3d 1050, 1052 (9th Cir. 2005) (citing REAL ID Act, Pub. L. No. 109-13, 119 Stat. 14 231, § 106(a)). However, for claims challenging ancillary or collateral issues arising 15 independently from the removal process—for example, a claim of indefinite detention— 16 federal habeas corpus jurisdiction remains in the district court. Nadarajah v. Gonzales, 17 443 F.3d 1069, 1076 (9th Cir. 2006), abrogated on other grounds by Jennings v. Rodriguez, 18 138 S. Ct. 830 (2018); Alvarez v. Sessions, 338 F. Supp. 3d 1042, 1048–49 (N.D. Cal. 19 2018) (citations omitted). 20 DISCUSSION 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 28 1005 (S.D. Cal. 2019) (internal quotation marks and citations omitted) (cleaned up) 1 (collecting cases). In determining whether detention has become unreasonable, courts 2 evaluate factors including “the total length of detention to date, the likely duration of future 3 detention, and the delays in the removal proceedings caused by the petitioner and the 4 government.” Lopez v. Garland, 631 F. Supp. 3d 870, 879 (E.D. Cal. 2022). Some courts 5 also consider the conditions of detention and the likelihood that the removal proceedings 6 will result in a final order of removal. See, e.g., Sadeqi v. LaRose, No. 25-CV-2587-RSH- 7 BJW, 2025 WL 3154520, at *3 (S.D. Cal. Nov. 12, 2025). 8 The Court finds that Petitioner has established he is entitled to a bond hearing. 9 Petitioner’s length of detention without a bond hearing, now over thirteen months, weighs 10 in Petitioner’s favor. Courts have found detention of similar lengths without a bond hearing 11 weighs towards a finding that detention has become unreasonable. See, e.g., Guatam v. 12 Corr. Corp of Am., No. 3:25-CV-3600-JES-DEB, 2026 WL 25846, at *4 (S.D. Cal. Jan. 5, 13 2026) (finding that one-year detention weighed in favor of granting a bond hearing); Sadeqi 14 v. LaRose, No. 25-CV-2587-RSH-BJW, 2025 WL 3154520, at *4 (S.D. Cal. Nov. 12, 15 2025) (finding that eleven month detention without a bond hearing “absent meaningful 16 rebuttal by [r]espondents” was unreasonable and violated due process). The length of 17 detention therefore favors Petitioner. 18 As to the likely duration of future detention, Petitioner argues that his “detention no 19 longer has a reasonably predictable endpoint” since his final merits hearing has been 20 rescheduled on several occasions. Pet. at 5. Respondents argue that after the schedule 21 merits hearing, “the pathway to removal will be clear.” Ret. at 9. The Court disagrees, as 22 the outcome of Petitioner’s merits proceedings is unknown, and any appeals to follow may 23 take several years. See Guatam, 2026 WL 25846, at *5 (“[A] removal order may not 24 become final until after the appeals Petitioner could file, to both the Board of Immigration 25 Appeals and Ninth Circuit.”); Prabhpreet v. LaRose, No. 26-CV-393-JES-SBC, 2026 WL 26 310192, at *4 (S.D. Cal. Feb. 5, 2026) (“Petitioner has an upcoming hearing . . . but 27 Petitioner alleges that he has had other scheduled hearings that have been moved and there 28 is also no indication that this hearing will even result in a final decision in his removal 1 || proceedings.”); Zarei v. LaRose, No. 26-CV-0308-GPC-MMP, 2026 WL 252585, at *5 2 ||(S.D. Cal. Jan. 30, 2026) (finding that likely duration of future detention weighed in favor 3 || of petitioner with upcoming merits hearing). 4 Delay in removal proceedings is neutral since the record, as presented to the Court, 5 ||does not indicate any delay by Respondents or Petitioner. See Rash v. LaRose, No. 6 ||26V0008-LL-DEB, 2026 WL 249324, at *5 (S.D. Cal. Jan. 30, 2026). 7 In balancing these factors and affording greater weight to the length of Petitioner’s 8 ||detention, the Court finds that Petitioner’s allegations establish that his detention is 9 ||unreasonably prolonged. See id. at *4 (“The total length of detention is considered the 10 important factor.”) (citing Banda v. McAleenan, 385 F. Supp. 3d 1099, 1118 (W.D. 11 || Wash. 2019)). 12 CONCLUSION 13 Based on the foregoing, the Court GRANTS Petitioner’s Amended Petition for Writ 14 || of Habeas Corpus (ECF No. 10), and ORDERS Respondents to provide Petitioner with an 15 || individualized bond hearing under 8 U.S.C. § 1226(a) within fourteen (14) days before a 16 |/neutral immigration judge in which the government bears the burden of establishing by 17 || clear and convincing evidence that Petitioner is a danger to the community or a flight risk 18 released. If no hearing occurs within fourteen days of this Order, Petitioner shall be 19 ||released from Respondents’ custody. The Parties SHALL FILE a Joint Status Report by 20 || March 16, 2026, informing the Court of the outcome of the hearing. As this concludes the 21 || litigation in this matter, the Clerk of the Court SHALL CLOSE the file. 22 IT IS SO ORDERED. 23 Dated: February 23, 2026 . tt f te 24 on. Janis L. Sammartino 5 United States District Judge 26 27 28