Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ABBASZADE RASHAD, Case No.: 3:26-cv-1750-CAB-VET 12 Petitioner, ORDER DISMISSING PETITION 13 v. FOR A WRIT OF HABEAS CORPUS WITH LEAVE TO AMEND 14 CHRISTOPHER J. LAROSE, Senior Warden of Otay Mesa Detention Center, 15 et al., [Doc. No. 1] 16 Respondents. 17 18 Petitioner Abbaszade Rashad, an immigration detainee proceeding pro se1, has filed 19 a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. [Doc. No. 1 20 (“Petition”).] Petitioner has been detained by Immigration and Customs Enforcement 21 (“ICE”) since he presented himself at the United States border seeking asylum on July 8, 22 2025. [Doc. No. 1-2 at 1–2.] He alleges he was denied a bond hearing by an immigration 23 24 25 26 1 Petitioner may be interested in contacting Federal Defenders of San Diego to see if a Federal Defender 27 can represent Petitioner in this matter. The telephone number for Federal Defenders’ San Diego Office is 619-234-8467 (Toll Free: 888-614-9867) and the El Centro Office is 760-335-3510 (Toll Free: 877-404- 28 1 judge on March 11, 2026. [Petition at 2.] As explained in detail below, the Court 2 DISMISSES the Petition WITH LEAVE TO AMEND. 3 A habeas petitioner bears the burden of demonstrating that he is in illegal custody. 4 See Martinez v. Noem, No. 25-CV-2740-BJC-BJW, 2025 WL 3171738, at *2 (S.D. Cal. 5 Nov. 13, 2025). “If it plainly appears from the petition and any attached exhibits that the 6 petitioner is not entitled to relief in the district court, the judge must dismiss the petition[.]” 7 Rules Governing Section 2254 Cases in the United States District Courts, Rule 4; see also 8 Rule 1(b) (permitting court to apply Rules Governing Section 2254 Cases to any “habeas 9 corpus petition”). Indeed, “district courts are expected to take ‘an active role in summarily 10 disposing of facially defective habeas petitions[.]’” Pinson v. Carvajal, 69 F.4th 1059, 11 1065 (9th Cir. 2023) (citing Boyd v. Thompson, 147 F.3d 1124, 1127 (9th Cir. 1998)). 12 Given the Petitioner’s pro se status, the Court liberally construes the Petition as 13 stating a claim for a violation of the Due Process Clause of the Fifth Amendment based on 14 Petitioner’s alleged prolonged detention under 8 U.S.C. § 1225(b). [See Doc. No. 1-2 at 15 1–3.] In similar cases, this Court has used the Banda test as a framework, which considers 16 the following six factors: (1) the total length of detention to date, which is the most 17 important factor; (2) the likely duration of future detention; (3) the conditions of detention; 18 (4) delays in removal proceedings caused by the detainee; (5) delays in removal 19 proceedings caused by the government; and (6) the likelihood that the removal proceedings 20 will result in a final order of removal. Banda v. McAleenan, 385 F. Supp. 3d 1099, 1106 21 (W.D. Wash. 2019). 22 Here, the first factor weighs heavily against Petitioner given that he has been 23 detained for approximately nine months. See Sibomana v. LaRose, No. 22-CV-933-LL- 24 NLS, 2023 WL 3028093, at *4 (S.D. Cal. Apr. 20, 2023) (highlighting that courts are 25 typically wary of continued custody without a bond hearing when detention extends 26 beyond one year). Moreover, Petitioner has not alleged any specific delays attributable to 27 Respondents, nor provided any details as to the status of his asylum case, such as the timing 28 or outcome of his calendar or merits hearings to date. The Court thus finds that Petitioner’s 1 || continued detention under § 1225(b) has not become unconstitutionally prolonged and thus 2 || dismisses the Petition without ordering a response. 3 Petitioner also challenges the conditions of his confinement, including the adequacy 4 ||of medical care, the facilities, and food. [Doc. No. 1-2 at 2.] Such challenges may be 5 || brought in a civil action, usually under 42 U.S.C. § 1983 or Bivens, not a habeas claim. 6 || Wilson v. Ponce, 465 F. Supp. 3d 1037, 1046 (C.D. Cal. 2020); see also Muhammad vy. 7 || Close, 540 U.S. 749, 750 (2004) (“Challenges to the validity of any confinement or to 8 || particulars affecting its duration are the province of habeas corpus . . . [while] requests for 9 || relief turning on circumstances of confinement may be presented in a § 1983 action.”). 10 The Court thus DISMISSES the petition for a writ of habeas corpus WITH LEAVE 11 AMEND to allow Petitioner to file an Amended Petition in the event that Petitioner’s 12 || detention extends beyond a year. 13 The Clerk of the Court shall close the case. If an Amended Petition is filed, the 14 || Court will reopen the case. 15 Itis SO ORDERED. 16 || Dated: April 9, 2026 18 Hon. Cathy Ann Bencivengo 19 United States District Judge 20 21 22 23 24 25 26 27 28