Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 GHIRMAI TSEHAYE, Case No.: 3:26-cv-0919-CAB-SBC 12 Petitioner, ORDER PARTIALLY GRANTING 13 v. WRIT OF HABEAS CORPUS 14 IMMIGRATION AND CUSTOMS ENFORCEMENT, et al., 15 Respondents. 16 17 Before the Court is Petitioner Ghirmai Tsehaye’s petition for a writ of habeas corpus 18 pursuant to 28 U.S.C. § 2241. [Doc. No. 1 (“Petition”).] Petitioner, proceeding pro se, 19 claims his prolonged detention by immigration authorities violates the Due Process Clause 20 of the Fifth Amendment. [Id. at 2, 6.] He seeks immediate release or, at minimum, a bond 21 hearing. [Id. at 7.] For the reasons below, the Court PARTIALLY GRANTS the request 22 for a writ of habeas corpus and ORDERS that Petitioner receive an individualized bond 23 hearing. 24 I. BACKGROUND 25 Petitioner is an Ethiopian national and part of the Tigrayan ethnic minority group. 26 [Petition at 12.] He entered the United States near Otay Mesa, California on November 27 28, 2024, was identified as an inadmissible arriving alien under 8 U.S.C. 28 1 § 1182(a)(7)(A)(i)(I), and was taken into custody by Immigration and Customs 2 Enforcement (“ICE”) pursuant to 8 U.S.C. § 1225(b). [Doc. No. 5 at 2.] He was 3 interviewed by an asylum officer and received a positive credible fear determination; he 4 was then issued a Notice to Appear (“NTA”), which initiated removal proceedings. [Id.] 5 Petitioner’s initial master calendar hearing was scheduled for February 3, 2025 but was 6 continued four times at his request – first to obtain counsel, and subsequently to prepare 7 for his immigration proceedings. [Id. at 2–3.] On March 4, 2026, Petitioner had an 8 individual merits hearing during which an immigration judge: (1) ordered he be removed 9 to Ethiopia; and (2) denied his application for asylum, withholding of removal under 8 10 U.S.C. § 1231(b)(3), and withholding of removal under the Convention Against Torture. 11 [Doc. No. 8 at 2.] Petitioner claims that he filed his appeal with the Board of Immigration 12 Appeals (“BIA”) on March 6, 2026. [Doc. No. 11 at 2.] To date, Petitioner does not have 13 a final order of removal. 14 II. LEGAL STANDARD 15 A writ of habeas corpus challenges the legality of a petitioner’s custody and seeks 16 to secure release from that illegal custody. Under 28 U.S.C. § 2241, a district court may 17 grant a writ of habeas corpus when the petitioner “is in custody in violation of the 18 Constitution or laws or treaties of the United States.” The petitioner bears the burden of 19 demonstrating that he is in illegal custody. See Martinez v. Noem, No. 25-CV-2740- 20 BJCBJW, 2025 WL 3171738, at *2 (S.D. Cal. Nov. 13, 2025). 21 III. DISCUSSION 22 A. Jurisdiction 23 Respondents challenge this Court’s jurisdiction based on 8 U.S.C. § 1252(g). [Doc. 24 No. 5 at 4–5.] Section 1252(g) provides in relevant part: “[N]o court shall have jurisdiction 25 to hear any cause or claim by or on behalf of any alien arising from the decision or action 26 by the Attorney General to commence proceedings, adjudicate cases, or execute removal 27 orders against any alien under this chapter.” As the Supreme Court reasoned in Reno v. 28 Am.-Arab Anti-Discrimination Comm., 525 U.S. 471, 482 (1999), § 1252(g) “applies only 1 to three discrete actions that the Attorney General may take: her decision or action to 2 commence proceedings, adjudicate cases, or execute removal orders.” Id. (cleaned up) 3 (emphasis added). See also Ibarra-Perez v. United States, 154 F.4th 989, 991 (9th Cir. 4 2025) (“The Supreme Court has instructed that we should read § 1252(g) narrowly.”). 5 Accordingly, § 1252(g) does not bar the “many other decisions or actions that may be part 6 of the deportation process[,]” including the decision “to refuse reconsideration” of the 7 “final order that is the product of the adjudication.” Reno, 525 U.S. at 482. Moreover, 8 “[i]t is implausible that the mention of three discrete events along the road to deportation 9 was a shorthand way of referring to all claims arising from deportation proceedings.” Id. 10 Here, the Petition does not contest the decision to commence proceedings, the 11 adjudication of Petitioner’s removal case, or any action to execute a removal order. Rather, 12 Petitioner seeks review of the legality of his detention, arguing that the length of time he 13 has been detained violates due process. He does not seek to relitigate in this Court the 14 Immigration Judge’s order of removal; indeed, he is separately pursuing an appeal with the 15 BIA. The sole relief Petitioner seeks here is release from custody while his immigration 16 case is fully adjudicated. Accordingly, the Court is satisfied of its jurisdiction and proceeds 17 to the merits. 18 B. Due Process Claim 19 Petitioner argues that his prolonged detention without a bond hearing—to date 20 fifteen months—violates his Fifth Amendment right to due process. [See Doc. No. 11 at 21 2.] Respondents argue that the relevant statutory language of § 1225(b)(1) and Supreme 22 Court precedent require Petitioner’s detention until his removal proceedings are resolved. 23 [Doc. No. 5 at 5–6.] The Court has previously discussed that while Supreme Court 24 precedent does establish that the statutory language of § 1225(b) mandates detention, the 25 Supreme Court has not decided the constitutional question of whether indefinite detention 26 is permitted. L.R.G. v. LaRose, 3:25-CV-3490-CAB-MSB, Doc. No. 13, at *5–6 (S.D. Cal. 27 Jan. 16, 2026). 28 1 As to that constitutional question, this Court held in L.R.G. that a due process 2 violation may occur when § 1225(b) results in practically indefinite civil detention. Id. at 3 *6; see Kydyrali v. Wolf, 499 F. Supp. 3d 768, 772 (S.D. Cal. 2020) (“[T]he Court joins 4 the majority of courts across the country in concluding that an unreasonably prolonged 5 detention under 8 U.S.C. § 1225(b) without an individualized bond hearing violates due 6 process.”). Respondents’ position has also been questioned by the Ninth Circuit: 7 We have grave doubts that any statute that allows for arbitrary prolonged 8 detention without any process is constitutional or that those who founded our 9 democracy precisely to protect against the government’s arbitrary deprivation of liberty would have thought so. Arbitrary civil detention is not a feature of 10 our American government. “[L]iberty is the norm, and detention prior to trial 11 or without trial is the carefully limited exception.” Civil detention violates due process outside of “certain special and narrow nonpunitive 12 circumstances.” 13 Rodriguez v. Marin, 909 F.3d 252, 256–57 (9th Cir. 2018) (internal citation omitted) 14 (alteration in original). 15 Though there is no brightline test for a violation, this Court and many others have 16 used the Banda test which considers the following six factors to determine when detention 17 under § 1225(b) violates due process: (1) the total length of detention to date, which is the 18 most important factor; (2) the likely duration of future detention; (3) the conditions of 19 detention; (4) delays in removal proceedings caused by the detainee; (5) delays in removal 20 proceedings caused by the government; and (6) the likelihood that the removal proceedings 21 will result in a final order of removal. Banda v. McAleenan, 385 F. Supp. 3d 1099, 1106 22 (W.D. Wash. 2019). 23 The first factor weighs in Petitioner’s favor given he has been detained for over a 24 year. See Sibomana v. LaRose, No. 22-CV-933-LL-NLS, 2023 WL 3028093, at *4 (S.D. 25 Cal. Apr. 20, 2023) (finding that courts are typically wary of continued custody without a 26 bond hearing when detention extends beyond one year). Regarding the second factor, 27 which consists of “the anticipated duration of all removal proceedings—including 28 1 administrative and judicial appeals[,]” Banda, 385 F. Supp. 3d at 1119, Petitioner 2 submitted his appeal on March 6, 2026 and it is unclear whether it will be adjudicated soon. 3 Accordingly, the second factor favors Petitioner. As to the third Banda factor, “[t]he more 4 that the conditions under which the [noncitizen] is being held resemble penal confinement, 5 the stronger his argument that he is entitled to a bond hearing.” Id. (second alteration in 6 original). Petitioner’s confinement is similar to penal confinement because, as the Court 7 explained with respect to the petitioner in L.R.G., who was also detained at Otay Mesa 8 Detention Center, Petitioner is detained “in a secure facility, guarded by armed personnel, 9 and has restricted access to outdoor space, activities, and communication.” No. 3:25-CV- 10 3490-CAB-MSB, Doc. No. 13, at *8. Thus, the third factor favors Petitioner. Regarding 11 the fourth factor, there is evidence that suggests Petitioner requested delays in his 12 proceedings, [Doc. No. 5 at 2–3], and therefore, this factor weighs against him. The fifth 13 factor similarly weighs against Petitioner as he does not allege that the government has 14 caused any delays. Finally, the sixth factor is neutral as the Court “does not have sufficient 15 information to determine whether the appeal is nonfrivolous or whether petitioner 16 ultimately will prevail.” Banda, 385 F. Supp. 3d at 1120. This factor is thus neutral. 17 In sum, factors one (the most important), two, and three weigh for Petitioner, while 18 factors four and five weigh against him, and factor six is neutral. With three factors, 19 including the most important factor, in his favor, and only two factors against him, the 20 Court concludes that Petitioner’s continued mandatory detention without a bond hearing 21 violates his right to due process. Petitioner is entitled to an individualized bond hearing 22 before an immigration judge. 23 IV. CONCLUSION 24 Based on the foregoing, the Court finds that Petitioner’s prolonged detention without 25 a bond hearing violates the Due Process Clause of the Fifth Amendment. The Court 26 therefore PARTIALLY GRANTS the writ of habeas corpus and ORDERS Respondents 27 to provide Petitioner an individualized bond hearing by April 13, 2026. 28 /// | Respondents shall update the Court on the result of the bond hearing by April 15, 2026. 2 Itis SO ORDERED. 3 Dated: March 30, 2026 4 GB 5 Hon. Cathy Ann Bencivengo United States District Judge 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28