Opinion

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 SOUTHERN DISTRICT OF CALIFORNIA 8 9 BAO SHILU, Case No.: 3:26-cv-01275-RBM-BJW 10 Petitioner, ORDER: 11 v. (1) GRANTING PETITION FOR 12 WARDEN, Otay Mesa Detention Center, WRIT OF HABEAS CORPUS et al., 13 UNDER 28 U.S.C. § 2241; Respondents. 14 (2) DENYING MOTION FOR 15 INTERPRETER AS MOOT 16 17 18 Pending before the Court are Petitioner Bao Shilu’s (“Petitioner”) Petition for Writ 19 of Habeas Corpus Under 28 U.S.C. § 2241 (“Petition”) (Doc. 1) and Motion for 20 Appointment of Interpreter (Doc. 6). For the reasons set forth below, the Petition is 21 GRANTED and the Motion for Appointment of Interpreter is DENIED AS MOOT. 22 I. BACKGROUND 23 A. Factual Background 24 Petitioner, a citizen of China, entered the United States to seek asylum on December 25 27, 2023. (Doc. 7 ¶ 1.) Petitioner was apprehended that same day, briefly detained, and 26 released pursuant to an Order of Release on Own Recognizance. (Id.; see id. at 32.) The 27 Order of Release on Own Recognizance required that Petitioner comply with certain 28 conditions. (See id. at 32.) Shortly thereafter, Petitioner was issued a Notice to Appear 1 (“NTA”) charging him as a noncitizen present in the United States without being admitted 2 or paroled under section 212(a)(6)(A)(i) of the Immigration and Nationality Act (“INA”). 3 (Id. at 31.) The NTA also commenced removal proceedings against him. 4 On February 26, 2024, Petitioner submitted an application for asylum to the 5 immigration court which remains pending. (Doc. 7 at 15.) 6 On December 21, 2025, Petitioner was re-detained while working as a rideshare 7 driver and taken into the United States Immigration and Customs Enforcement’s (“ICE”) 8 custody. (Id. ¶ 30; see id. at 51.) Petitioner has been detained at the Otay Mesa Detention 9 Center ever since. (Id. ¶ 30.) “ICE denied Petitioner's request for release, and he requested 10 a bond redetermination hearing before an immigration judge.” (Id. ¶ 32.) On January 16, 11 2026, the immigration judge held he lacked jurisdiction over the bond hearing. (Id. ¶ 33.) 12 B. Procedural Background 13 On February 23, 2026, Petitioner commenced this action by filing the Petition. (Doc. 14 1.) Respondents filed a Response to the Petition on March 11, 2026. (Doc. 5.) On March 15 20, 2026, Petitioner filed a Motion for Appointment of Interpreter. (Doc. 6.) Petitioner 16 also submitted a filing containing a Memorandum of Law in Support of the Petition (Doc. 17 7 at 14), Petitioner’s Reply in Support of the Petition (id. at 16), and several exhibits (id. 18 at 21–74) , which the Court construes as Petitioner’s optional Reply. 19 II. LEGAL STANDARD 20 A writ of habeas corpus is “available to every individual detained within the United 21 States.” Hamdi v. Rumsfeld, 542 U.S. 507, 525 (2004) (citing U.S. Const., Art. I, § 9, cl. 2). 22 “The essence of habeas corpus is an attack by a person in custody upon the legality of that 23 custody, and . . . the traditional function of the writ is to secure release from illegal 24 custody.” Preiser v. Rodriguez, 411 U.S. 475, 484 (1973). “Writs of habeas corpus may 25 be granted by the Supreme Court, any justice thereof, the district courts and any circuit 26 judge within their respective jurisdictions.” 28 U.S.C. § 2241(a). The petitioner bears the 27 burden of demonstrating that “[h]e is in custody in violation of the Constitution or laws or 28 treaties of the United States.” Id. § 2241(c)(3). 1 III. DISCUSSION 2 Petitioner claims he is being detained in violation of the Fifth Amendment’s Due 3 Process Clause because his detention has become unreasonably prolonged, and he has not 4 received a constitutionally adequate bond hearing. (See Doc. 1 ¶¶ 16–23.) Respondents 5 maintain that “Petitioner is subject to mandatory detention under § 1225(b), because 6 Petitioner was present in the United States without being admitted or paroled.” (Doc. 5 at 7 2.) In support, Respondents attempt to incorporate by reference arguments regarding the 8 government’s authority for mandatory detention under § 1225(b) made in similar cases. 9 (See id. at 3–4 & n.3.)1 Respondents do not address Petitioner’s due process claims.2 10 This Court has granted several habeas petitions filed by similarly situated petitioners 11 who were initially released under an Order of Release on Own Recognizance and re- 12 detained several years later. In Faizyan v. Casey, the Court held that such petitioners are 13 “subject to the discretionary detention procedures under 8 U.S.C. § 1226 and [their] 14 detention without a bond hearing violates the Due Process Clause.” Case No.: 3:25-cv- 15 02884-RBM-JLB, 2025 WL 3208844, at *2 (S.D. Cal. Nov. 17, 2025); see also Ortega- 16 Cervantes v. Gonzales, 501 F.3d 1111, 1115–16 (9th Cir. 2007) (finding a noncitizen 17 released on an “Order of Release on Recognizance” pursuant to INA § 236 “was 18 19 20 1 “Generally, courts do not allow incorporation by reference of arguments or ‘substantive 21 materials’ not contained within the relevant motions’ briefs.” Flores v. Bennett, 635 F. Supp. 3d 1020, 1029 (E.D. Cal. 2022), aff’d, No. 22-16762, 2023 WL 4946605 (9th Cir. 22 Aug. 3, 2023) (collecting cases); see Williams v. Cnty. of Alameda, 26 F. Supp. 3d 925, 23 947 (N.D. Cal. 2014) (declining to consider arguments plaintiff “improperly [sought] to incorporate by reference”). 24 25 2 Respondents “request[ ] an opportunity to submit [a more formal response] within a reasonable timeframe” (Doc. 5 at 2 n.2), but notably failed to properly request an extension 26 of time. See also Sosa Inzuna v. Warden of Adelanto Det. Facility, — F. Supp. 3d —, 2026 27 WL 233211, at *3 n.2 (C.D. Cal. 2026) (noting “the current volume of habeas petitions . . . being filed can be attributed to Respondents’ deliberate choice to continue defying the final 28 1 conditionally paroled under the authority of § 1226(a)”). Applying the due process inquiry 2 in Mathews v. Eldridge, 424 U.S. 319 (1976), the Court found that Respondents’ summary 3 revocation of the petitioner’s “conditional parole without an opportunity to be heard 4 deprived [him] of his due process rights.” Faizyan, 2025 WL 3208844, at *7 (S.D. Cal. 5 Nov. 17, 2025); accord C.A.R.V. v. Wofford, Case No. 1:25- CV-01395 JLT SKO, 2025 6 WL 3059549, at *9 (E.D. Cal. Nov. 3, 2025) (finding due process violation where the 7 petitioner was initially released on his own recognizance); Leiva Flores v. Albarran, Case 8 No. 25- cv-09302-AMO, 2025 WL 3228306, at *5 (N.D. Cal. Nov. 19, 2025) (finding the 9 same and requiring a hearing before detention). 10 Like in Faizyan, Petitioner was released from his initial detention on his own 11 recognizance, issued on a Form I-220A, and lived in the United States for about two years 12 before being re-detained. (See Doc. 7 at 32.) “As ICE was not authorized to release 13 [Petitioner] if [he] was a danger to the community or a flight risk, the Court must infer 14 from [the] release that ICE determined [he] was neither.” Pinchi v. Noem, 792 F. Supp. 3d 15 1025, 1032 (N.D. Cal. 2025). Nothing on the record before the Court indicates any change 16 in circumstances or individualized justification for Petitioner’s re-detention. See 8 C.F.R. 17 § 1236.1(c)(8). Respondents do not dispute that Petitioner was not provided with an 18 individualized determination or an opportunity to be heard before being re-detained. 19 Instead, Respondents acknowledge that “Petitioner was denied bond at a bond hearing 20 because the Immigration Judge determined that the court lacked jurisdiction pursuant to 21 Matter of Q. Li, I&N Dec. 66 (BIA 2025), and Matter of Yajure Hurtado, 29 I. & N. Dec. 22 216, 228 (BIA 2025).” (Doc. 5 at 2 n.1.) 23 The Court therefore adopts its reasoning in Faizyan and applies it here. For those 24 same reasons, the Court finds that: (1) Petitioner is subject to § 1226’s discretionary 25 framework; and (2) ICE’s revocation of Petitioner’s release on his own recognizance 26 without a pre-deprivation hearing violates his due process rights and renders his detention 27 28 1 ||unlawful. Accordingly, the Petition is GRANTED. 2 IV. CONCLUSION 3 Based on the foregoing reasons, the Petition (Doc. 1) is GRANTED. Accordingly: 4 1. Respondents are ORDERED to immediately release Petitioner from custody, 5 subject to the conditions of his preexisting Order of Release on Own 6 Recognizance. 7 2. The Court ORDERS that, prior to any re-detention, Petitioner SHALL receive 8 notice of the reasons for revocation of his release and a hearing before an 9 immigration judge pursuant to 8 U.S.C. § 1226(a) to determine whether detention 10 is warranted. Respondents shall bear the burden of establishing, by clear and 11 convincing evidence, that Petitioner poses a danger to the community or a risk of 12 flight. 13 3. The Motion for Appointment of Interpreter (Doc. 6) is DENIED AS MOOT. 14 IT IS SO ORDERED. 15 ||}DATE: April 3, 2026 6 Ge tbormuds, Mpatergs D 7 HON. RUTH BERMUDEZ MONTENEGRO UNITED STATES DISTRICT JUDGE 18 19 20 21 22 23 24 25 26 27 > In light of the disposition herein, the Court declines to address the Petition’s remaining grounds for relief.