Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 LEI PENG, Case No.: 26-CV-1329 JLS (SBC)

12 Petitioner, ORDER (1) GRANTING IN PART 13 v. PETITION FOR WRIT OF HABEAS CORPUS AND (2) DENYING AS 14 KRISTI NOEM, Secretary, Department of MOOT MOTION FOR Homeland Security, et al., 15 APPOINTMENT OF INTERPRETER Respondents. 16 (ECF Nos. 1, 2) 17 18 Presently before the Court are Petitioner Lei Peng’s Petition for Writ of Habeas 19 Corpus pursuant to 28 U.S.C. § 2241 (“Pet.,” ECF No. 1) and Motion for Appointment of 20 Interpreter (“Mot.,” ECF No. 2). Also before the Court is Respondents’ Return to Habeas 21 Petition and Notice of Non-Opposition (“Ret.,” ECF No. 5). Petitioner did not file a 22 Traverse. See generally Docket. For the reasons set forth below, the Court GRANTS IN 23 PART the Petition for a Writ of Habeas Corpus and DENIES AS MOOT the Motion for 24 Appointment of Interpreter. 25 BACKGROUND 26 Petitioner, a citizen of China, alleges that he has been detained by the United States 27 Department of Homeland Security’s (“DHS”) Immigration and Customs Enforcement 28 (“ICE”) division at the Otay Mesa Detention Center since August 15, 2025. Pet. ¶ 3. 1 Petitioner originally entered the United States on a B2 Visitor’s visa on December 26, 2 2023, and applied for asylum in 2024. Id. ¶ 1. He later obtained a 180-day work permit. 3 Id. On August 12, 2025, while driving around San Diego for work, Petitioner accidentally 4 drove into Mexico during rush hour. Id. ¶ 2. Immediately thereafter, Petitioner’s attorney 5 completed an I-131 and a request for parole to allow Petitioner to return to the United States 6 to pursue his asylum claim. Id. On August 15, 2025, Petitioner was apprehended at the 7 U.S.-Mexico border. Id. ¶ 3. Respondents charged Petitioner with entering the United 8 States without inspection and valid immigration documents and initiated removal 9 proceedings. Id. ¶¶ 5, 36. Petitioner was denied release by DHS and twice denied a bond 10 hearing on jurisdictional grounds by an Immigration Judge. Id. ¶¶ 6–7. Petitioner alleges 11 that his detention violates the Due Process Clause of the Fifth Amendment and the 12 Administrative Procedure Act. See generally id. Respondents do not oppose a bond 13 hearing for Petitioner in this matter. Ret. at 1. 14 LEGAL STANDARD 15 A federal prisoner challenging the execution of his or her sentence, rather than the 16 legality of the sentence itself, may file a petition for writ of habeas corpus in the district of 17 his confinement pursuant to 28 U.S.C. § 2241. See 28 U.S.C. § 2241(a). The sole judicial 18 body able to review challenges to final orders of deportation, exclusion, or removal is the 19 court of appeals. See generally 8 U.S.C. § 1252; see also Alvarez–Barajas v. Gonzales, 20 418 F.3d 1050, 1052 (9th Cir. 2005) (citing REAL ID Act, Pub. L. No. 109-13, 119 Stat. 21 231, § 106(a)). However, for claims challenging ancillary or collateral issues arising 22 independently from the removal process—for example, a claim of indefinite detention— 23 federal habeas corpus jurisdiction remains in the district court. Nadarajah v. Gonzales, 24 443 F.3d 1069, 1076 (9th Cir. 2006), abrogated on other grounds by Jennings v. Rodriguez, 25 138 S. Ct. 830 (2018); Alvarez v. Sessions, 338 F. Supp. 3d 1042, 1048–49 (N.D. Cal. 26 2018) (citations omitted). 27 / / / 28 / / / 1 DISCUSSION 2 “Neither the Ninth Circuit nor the Supreme Court have provided guidance regarding 3 the point at which an immigration detainee’s prolonged mandatory detention becomes 4 unconstitutional.” Amado v. United States Dep’t of Just., No. 25CV2687-LL(DDL), 2025 5 WL 3079052, at *5 (S.D. Cal. Nov. 4, 2025). However, “[n]early all district courts that 6 have considered [the constitutionality of prolonged mandatory detention] agree that 7 prolonged mandatory detention pending removal proceedings, without a bond hearing, 8 will—at some point—violate the right to due process.” Singh v. Barr, 400 F. Supp. 3d 9 1005 (S.D. Cal. 2019) (internal quotation marks and citations omitted) (cleaned up) 10 (collecting cases). In determining whether detention has become unreasonable, courts 11 evaluate factors including “the total length of detention to date, the likely duration of future 12 detention, and the delays in the removal proceedings caused by the petitioner and the 13 government.” Lopez v. Garland, 631 F. Supp. 3d 870, 879 (E.D. Cal. 2022). Some courts 14 also consider the conditions of detention and the likelihood that the removal proceedings 15 will result in a final order of removal. See, e.g., Sadeqi v. LaRose, No. 25-CV-2587-RSH- 16 BJW, 2025 WL 3154520, at *3 (S.D. Cal. Nov. 12, 2025). 17 The Court finds that Petitioner has established he is entitled to a bond hearing, and 18 Respondents do not oppose this relief. Ret. at 1. Petitioner’s length of detention, over 19 seven months, without a bond hearing weighs in Petitioner’s favor. Courts have found 20 detention of similar lengths without a bond hearing weighs towards a finding that detention 21 has become unreasonable. See, e.g., Guatam v. Corr. Corp of Am., No. 3:25-CV-3600- 22 JES-DEB, 2026 WL 25846, at *4 (S.D. Cal. Jan. 5, 2026) (finding that one-year detention 23 weighed in favor of granting a bond hearing); Sadeqi, 2025 WL 3154520, at *4 (finding 24 that eleven month detention without a bond hearing “absent meaningful rebuttal by 25 [r]espondents” was unreasonable and violated due process); Amado, 2025 WL 3079052, at 26 *5 (“Courts have found detention over seven months without a bond hearing weighs toward 27 a finding that it is unreasonable.”). The length of detention therefore favors Petitioner. 28 1 As to the likely duration of future detention, the Court finds that the outcome of 2 Petitioner’s merits proceedings is unknown, and any appeals to follow may take several 3 years. See Guatam, 2026 WL 25846, at *5 (“[A] removal order may not become final until 4 after the appeals Petitioner could file, to both the Board of Immigration Appeals and Ninth 5 Circuit.”). Therefore, the likely duration of future detention weighs in Petitioner’s favor. 6 Delay in removal proceedings is neutral since the record does not suggest delay by 7 Respondents nor Petitioner. See generally Pet.; Ret. Balancing the discussed factors, the 8 Court concludes that Petitioner’s detention has become unreasonably prolonged, and 9 therefore, Petitioner is entitled to a bond hearing. 10 I. Attorney’s Fees 11 Petitioner has requested costs and attorney’s fees in this action pursuant to the Equal 12 Access to Justice Act (“EAJA”), 28 U.S.C. § 2412. Pet. at 64. The EAJA provides in part: 13 A party seeking an award of fees and other expenses shall, within thirty days of final judgment in the action, submit to the court an 14 application for fees and other expenses which shows that the 15 party is a prevailing party and is eligible to receive an award under this subsection, and the amount sought, including an 16 itemized statement from any attorney . . . representing or 17 appearing in behalf of the party stating the actual time expended and the rate at which fees and other expenses were 18 computed. The party shall also allege that the position of the 19 United States was not substantially justified. Whether or not the position of the United States was substantially justified shall be 20 determined on the basis of the record . . . which is made in the 21 civil action for which fees and other expenses are sought. 22 28 U.S.C. § 2412(d)(1)(B). 23 The Court will consider an application requesting reasonable fees and costs under 24 the EAJA that is filed within thirty days of the judgment. 25 CONCLUSION 26 Based on the foregoing, the Court GRANTS IN PART Petitioner’s Petition for a 27 Writ of Habeas Corpus (ECF No. 1), DENIES AS MOOT Petitioner’s Motion for 28 Appointment of Interpreter (ECF No. 2), and ORDERS Respondents to provide Petitioner 1 |} with an individualized bond hearing within fourteen (14) days before a neutral immigration 2 judge in which the government bears the burden of establishing by clear and convincing 3 ||evidence that Petitioner is a danger to the community or a flight risk if released. If no 4 |/hearing occurs within fourteen days of this Order, Petitioner shall be released from 5 || Respondents’ custody. 6 The Parties SHALL file a Joint Status Report by April 10, 2026, informing the Court 7 || of the outcome of the hearing. 8 Lastly, Petitioner’s attorney is directed to submit an attorney fee application and 9 || corresponding billing records within thirty (30) days of this Order, and Respondents are 10 |/instructed to file any opposition within fourteen (14) days of Petitioner’s attorney fee 11 || application. 12 IT IS SO ORDERED. 13 Dated: March 18, 2026 14 jae Janis L. Sammartino 15 United States District Judge 16 17 18 19 20 21 22 23 24 25 26 27 28