Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 SOUTHERN DISTRICT OF CALIFORNIA 6 7 WAAD SALAM ALKHAFAJI, Case No.: 3:26-cv-02262-RBM-BJW 8 Petitioner, ORDER DENYING WITHOUT 9 v. PREJUDICE:

10 MARKWAYNE MULLIN, et al., (1) PETITION FOR WRIT OF 11 Respondents. HABEAS CORPUS [Doc. 1]; and 12 (2) MOTION TO APPOINT 13 COUNSEL [Doc. 6]

15 Pending before the Court are Petitioner Waad Salam Alkhafaji’s (“Petitioner”) 16 Petition for Writ of Habeas Corpus Under 28 U.S.C. § 2241 (“Petition”) (Doc. 1) and 17 Motion for Appointment of Counsel Pursuant to 18 U.S.C. § 3006A (“Motion to Appoint 18 Counsel”) (Doc. 6). For the reasons below, the Court DENIES without prejudice the 19 Petition and the Motion to Appoint Counsel. 20 I. BACKGROUND 21 A. Factual Background 22 Petitioner is a citizen of Iraq who entered the United States as a child on or about 23 March 3, 1993. (Doc. 5 at 2 (citing Doc. 5-1 at 3).) “At that time, Petitioner was issued 24 an I-94 visa and classified as ‘Refugee-Not adjusted to Lawful Permanent Resident Status’ 25 with an expiration date of December 31, 1999.” (Id.) In August 1993, Petitioner’s status 26 changed to “adjusted child of a refugee” with an expiration date of December 3, 2019. (Id.) 27 Petitioner has not filed documentation with United States Citizenship and Immigration 28 Services to maintain his refugee status. (Id.) 1 On November 10, 2025, Petitioner was taken into Immigration and Customs 2 Enforcement (“ICE”) custody after being released from jail on charges of failing to comply 3 with a domestic violence court order. (Id.) On November 25, 2025, ICE issued Petitioner 4 a Notice to Appear, which initiated removal proceedings against him. (Id.) On February 5 24, 2026, the immigration judge ordered Petitioner removed to Iraq and granted Petitioner 6 deferred removal under the Convention Against Torture. (Id. (citing Doc. 5-3 at 3–6).) 7 Petitioner waived appeal. (Id.) 8 On April 9, 2026, Petitioner filed his Petition. (Doc. 1.) The Court set a briefing 9 schedule shortly thereafter. (Doc. 2.) On April 21, 2026, Respondents filed their Return to 10 Petition for Writ of Habeas Corpus. (Doc. 5.) On April 24, 2026, Petitioner filed his 11 Motion to Appoint Counsel. (Doc. 6.) Petitioner was authorized to file a reply on or before 12 May 5, 2026, but given the record before it, the Court rules on the Petition now. 13 II. LEGAL STANDARD 14 A writ of habeas corpus is “available to every individual detained within the United 15 States.” Hamdi v. Rumsfeld, 542 U.S. 507, 525 (2004) (citing U.S. Const., Art. I, § 9, cl. 2). 16 “The essence of habeas corpus is an attack by a person in custody upon the legality of that 17 custody, and . . . the traditional function of the writ is to secure release from illegal 18 custody.” Preiser v. Rodriguez, 411 U.S. 475, 484 (1973). “Writs of habeas corpus may 19 be granted by the Supreme Court, any justice thereof, the district courts and any circuit 20 judge within their respective jurisdictions.” 28 U.S.C. § 2241(a). The petitioner bears the 21 burden of demonstrating that “[h]e is in custody in violation of the Constitution or laws or 22 treaties of the United States.” Id. § 2241(c)(3). 23 III. DISCUSSION 24 A. Petition 25 Construing the Petition liberally, as it must, see Erickson v. Pardus, 551 U.S. 89, 93 26 (2007), the Court finds Petitioner to raise a claim for relief under Zadvydas v. Davis, 533 27 U.S. 678 (2001) or the Fifth Amendment’s Due Process Clause. (See Doc. 2 at 1; Doc. 1 28 at 4 (“There’s no significant likelihood that I’ll be removed in the reasonabl[y] foreseeable 1 future. I was granted Deferral of Removal . . . .”).) Respondents “request the Court deny 2 this petition on the ground that post-removal order detention is statutorily mandated under 3 8 U.S.C. § 1231(a) for a period of 90 days following the date that a noncitizen’s removal 4 order becomes final.” (Doc. 5 at 1–4.) 5 The “date the order of removal becomes administratively final” marks the beginning 6 of the 90-day “removal period,” during with the government “shall detain the [noncitizen] 7 while seeking his removal.” See 8 U.S.C. § 1231(a); see also Johnson v. Guzman Chavez, 8 594 U.S. 523, 533–34 (2021). The 90-day removal period “only concerns the custodial 9 time after [Petitioner’s] removal order was finalized.” Tumasov v. Doe 1, Case No.: 25- 10 cv-2704-AGS-JLB, 2025 WL 3171897, at *1 (S.D. Cal. Nov. 13, 2025). 11 Here, Petitioner’s removal order became administratively final on February 24, 12 2026, after he was ordered removed from the United States and he waived appeal. (Doc. 5 13 at 3–6.) Petitioner therefore is still in the 90-day period of statutorily mandated detention, 14 and will be until May 24, 2026. See 8 U.S.C. § 1231. Accordingly, the Court DENIES 15 without prejudice the Petition. 16 B. Motion to Appoint Counsel 17 “Whenever the United States magistrate judge or the [C]ourt determines that the 18 interests of justice so require, representation may be provided for any financially eligible 19 person who . . . (B) is seeking relief under section 2241, 2254, or 2255 of title 28.” 18 20 U.S.C. § 3006A(a)(2). “In deciding whether to appoint counsel in a habeas proceeding, 21 the district court must evaluate the likelihood of success on the merits as well as the ability 22 of the petitioner to articulate his claims pro se in light of the complexity of the legal issues 23 involved.” Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983) (citations omitted). The 24 appointment of counsel is left to the sound discretion of the Court. See Terrovona v. 25 Kincheloe, 912 F.2d 1176, 1181–82 (9th Cir. 1990). As Petitioner cannot succeed on the 26 merits of his Petition while his detention is statutorily mandated, appointment of counsel 27 is not appropriate. See Weygandt, 718 F.2d at 954. The Court thus also DENIES without 28 prejudice the Motion to Appoint Counsel. I IV. CONCLUSION 2 For the foregoing reasons, the Petition (Doc. 1) and Motion to Appoint Counsel 3 (Doc. 6) are DENIED without prejudice. 4 If Petitioner has not been removed by May 24, 2026, he may file an amended Petition 5 an amended Motion to Appoint Counsel. If Petitioner chooses to file an amended 6 || Motion to Appoint Counsel, he shall also include information regarding whether he is able 7 afford counsel. 8 IT IS SO ORDERED. 9 ||DATE: April 28, 2026 10 eet Bearniskr, Moitttsyges □ 1 ON. RUTH BERMGDEZ! MONTENEGRO UNITED STATES DISTRICT JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28