Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 SALIM GADZHIEV, Case No.: 3:26-cv-00857-BTM-VET 12 Petitioner, ORDER GRANTING IN PART AND 13 v. DENYING IN PART PETITION FOR WRIT OF HABEAS CORPUS 14 15 MARKWAYNE MULLIN, Secretary, [ECF NO. 8] Department of Homeland Security; 16 TODD BLANCHE, Acting Attorney 17 General, Department of Justice; TODD M. LYONS, Acting Director, 18 Immigration and Customs Enforcement; 19 JESUS ROCHA, Acting Field Office Director, San Diego Field Office; 20 CHRISTOPHER LAROSE, Warden, 21 Otay Mesa Detention Center; 22 Respondents. 23 24 Pending before the Court is Salim Gadzhiev’s amended petition for a writ of habeas 25 corpus pursuant to 28 U.S.C. § 2241. For the reasons stated below, the Court GRANTS 26 IN PART and DENIES IN PART the petition and orders the Respondents to provide him 27 with an individualized bond hearing before a fair, neutral, and open-minded immigration 28 judge. 1 I. BACKGROUND 2 Gadzhiev arrived at the U.S. border on August 3, 2025. (ECF No. 8-1, Ex. A 3 (“Decl.”), ¶ 1, 6.) He sought asylum after experiencing ethnic discrimination and torture 4 in Russia. (Id. ¶ 1–4.) Gadzhiev was detained under 8 U.S.C. § 1225(b) and interviewed 5 about his asylum claim. (See id. ¶ 6–7.) On August 24, 2025, the Respondents initiated 6 Section 1229a removal proceedings against Gadzhiev. (ECF No. 9, Ex. 1 (“NTA”).) 7 Gadzhiev’s first hearing was scheduled for September 4, 2025. (Id.; ECF No. 9, Ex. 8 2 (“EOIR Hearing Report”).) He continued the hearing to September 24, 2025. (EOIR 9 Hearing Report.) Gadzhiev attests that he was ready to proceed on September 24, but was 10 told another hearing was scheduled in October 2025, and later in November 2025. (Decl., 11 ¶ 7–8.) The Respondents have filed a report that shows Gadzhiev continued his hearings 12 on September 24, 2025, and October 22, 2025, to seek legal counsel and prepare his asylum 13 claim. (See EOIR Hearing Report.) The parties agree that on November 19, 2025, the 14 immigration court scheduled the Petitioner’s individual merits hearing for April 1, 2026. 15 (See Decl., ¶ 8; EOIR Hearing Report.) On April 1, 2026, the Petitioner’s merits hearing 16 was rescheduled to April 28, 2026, because “another priority matter was scheduled at the 17 same time.” (ECF No. 12, at 1.) 18 Gadzhiev is detained at the Otay Mesa Detention Center. (ECF No. 1-4; see NTA.) 19 He filed a petition for the writ of habeas corpus on February 9, 2026, and an amended 20 petition on March 2, 2026. (ECF No. 1; ECF No. 8 (“Am. Pet.”).) Gadzhiev has been in 21 custody for more than nine months. 22 II. DISCUSSION 23 The Petitioner claims the Due Process Clause of the Fifth Amendment prohibits 24 unreasonably prolonged immigration detention without a bond hearing. (Am. Pet., 3–11.) 25 He also contends that immigration judges are not neutral and that the Court should order 26 his release outright or provide additional safeguards for the bond hearing. (Id. at 11–18.) 27 The Respondents contend that the Court lacks jurisdiction. (ECF No. 9 (“Return”), 28 at 4–5.) The Respondents claim that the Petitioner is lawfully detained under 8 U.S.C. 1 § 1225(b)(2) and not entitled to a bond hearing. (Id. at 5–11.) Alternatively, they argue 2 the Petitioner is not entitled to a bond hearing because his detention is not 3 unconstitutionally prolonged. (Id. at 11–16.) The Respondents also contend that, should 4 the Court find that the Petitioner is entitled to habeas relief, the Court should decline to 5 grant release and instead order a bond hearing. (Id. at 16–18.) 6 A. Jurisdiction 7 The Court has long had jurisdiction to issue writs of habeas corpus to petitioners 8 held in custody “in violation of the Constitution or laws or treaties of the United States.” 9 28 U.S.C § 2241(c)(3); see Judiciary Act of 1789, ch. 20, 1 Stat. 73, 81–82. Yet the 10 Respondents argue that the Court lacks jurisdiction over this petition under 8 U.S.C. 11 § 1252(g). 12 This is the same jurisdictional argument that other decisions in this district have 13 soundly rejected. See, e.g., Tran v. Noem, No. 25-cv-02391, 2025 WL 3005347, at *2 14 (S.D. Cal. Oct. 27, 2025). The Petitioner is not challenging his removal, the execution of 15 a removal order, or a discretionary decision by the Attorney General. See Arce v. United 16 States, 899 F.3d 796, 800 (9th Cir. 2018) (“[W]e have limited [1252(g)]’s jurisdiction- 17 stripping power to actions challenging the Attorney General’s discretionary decisions to 18 initiate proceedings, adjudicate cases, and execute removal orders.”). Rather, the Petitioner 19 solely challenges the constitutionality of his detention without a bond hearing. The Court 20 therefore adopts the reasoning of the other decisions in this district, rejects the 21 Respondents’ argument, and finds that it has jurisdiction to review the petition. 22 B. Merits 23 i. Due Process under Section 1225(b)(1) 24 The facts and legal arguments are similar to those presented in the Court’s previous 25 decision, Singh v. LaRose, No. 26-cv-00842, 2026 WL 684654 (S.D. Cal. Mar. 10, 2026). 26 The Court adopts Singh’s reasoning and applies it here. 27 The Court holds that the Due Process Clause prohibits unreasonably prolonged 28 detention without a bond hearing. See Zadvydas v. Davis, 533 U.S. 678, 690 (2001). This 1 protection extends to those detained under Section 1225, such as the Petitioner. See 2 Kydyrali v. Wolf, 499 F. Supp. 3d 768, 772 (S.D. Cal. 2020) (“[T]he Court joins the 3 majority of courts across the country in concluding that an unreasonably prolonged 4 detention under 8 U.S.C. § 1225(b) without an individualized bond hearing violates due 5 process.”). The Court further holds that Shaughnessy v. United States ex rel. Mezei does 6 not apply here. 345 U.S. 206 (1953). The petitioner in Mezei had been deemed “a threat 7 to national security.” Rosales-Garcia v. Holland, 322 F.3d 386, 413–14 (6th Cir. 2003). 8 There has been no determination in the record that the Petitioner here is a danger to national 9 security. The Court also finds unpersuasive the argument that Barrera-Echavarria v. Rison 10 binds this Court to find that noncitizens1 “have no substantive right to be free from 11 immigration detention.” 44 F.3d 1441, 1450 (9th Cir. 1995), superseded by statute, 12 Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104–208, 110 13 Stat. 3009–546, as recognized in Xi v. U.S. Immigr. & Naturalization Serv., 298 F.3d 832, 14 837–38 (9th Cir. 2002). “[T]he constitutionality of ‘indefinite’ or ‘permanent’ detention 15 with no prospect of release” was not at issue in Barrera-Echavarria as it is here. Id. at 16 1450. 17 Having found that the Petitioner has a right against prolonged detention, the Court 18 must determine whether the Petitioner’s detention is so prolonged as to violate the Due 19 Process Clause. 20 ii. Prolonged Detention 21 When deciding whether a petitioner’s continued detention would violate the Due 22 Process Clause, many district courts have looked to the factors articulated in Banda v. 23 McAleenan: 24 (1) the total length of detention to date; (2) the likely duration of future detention; (3) the conditions of detention; (4) delays in the removal 25 proceedings caused by the detainee; (5) delays in the removal proceedings 26 27 1 This order uses the term “noncitizen” as equivalent to the statutory term “alien.” 8 U.S.C. 28 1 cause [sic] by the government; and (6) the likelihood that the removal proceedings will result in a final order of removal.” 2 3 385 F. Supp. 3d 1099, 1118 (W.D. Wash. 2019) (quoting Jamal A. v. Whitaker, 358 F. 4 Supp. 3d 853, 858–59 (D. Minn. 2019)). The Court finds it appropriate to apply the Banda 5 test to the Petitioner’s detention as other decisions in this district have done. See, e.g., 6 Sandesh v. LaRose, No. 26-cv-00846, 2026 WL 622690 (S.D. Cal. Mar. 5, 2026). 7 The length of detention is the “most important factor.” Banda, 385 F. Supp. 3d at 8 1118. The Petitioner had been detained without a bond hearing for over nine months. This 9 length of time “does not presumptively establish unreasonably prolonged detention, but 10 neither does it prevent constitutional scrutiny.” Mtiulishvili v. LaRose, No. 26-cv-00387, 11 2026 WL 377870, at *3 (S.D. Cal. Feb. 10, 2026). Although some courts have found 12 detention lasting up to nine months to be reasonable, see Miagkikh v. LaRose, No. 3:25- 13 cv-03755, 2026 WL 237742, at *2 (S.D. Cal. Jan. 29, 2026), many courts in this district 14 have found detention beyond seven months to be unreasonably prolonged, see, e.g., Amado 15 v. U.S. Dep’t of Just., No. 25-cv-02687, 2025 WL 3079052, at *5 (S.D. Cal. Nov. 4, 2025) 16 (collecting cases). 17 The Court follows the approach of the latter. The prolonged detention at issue is of 18 “a human being who has never been found to pose a danger to the community or to be 19 likely to flee if released.” Whitaker, 358 F. Supp. 3d at 859. The Respondents have also 20 not presented any merits argument that justifies further detention without a bond hearing. 21 They instead rely on Markov v. LaRose to argue that the Court has denied petitions where 22 detention has lasted longer than seven months. No. 25-cv-3811, 2026 WL 92069 (S.D. 23 Cal. Jan. 13, 2026). The Court there held that the Petitioner’s “length of detention” of one 24 year, “without more, does not render his detention unreasonable.” Id. at *2. But here, as 25 the Court discusses below, there is more. Thus, Markov is inapposite to this case. Based 26 on the absence of any finding of danger or flight risk, and the failure of the Respondents to 27 discuss the length of detention on its merits, the Court finds that this factor favors the 28 1 Petitioner. The weight is only slight, however, as the Court recognizes that the length of 2 detention is at the low end of time deemed prolonged in this district. 3 The second factor, likely duration of future detention, considers “the anticipated 4 duration of all removal proceedings—including administrative and judicial appeals.” 5 Banda, 385 F. Supp. 3d at 1119 (quoting Jamal A., 358 F. Supp. at 859). Here, as in 6 Sandesh, “Petitioner has not yet had his final merits hearing, and if he loses, will file an 7 appeal to the BIA and will have an opportunity to appeal to the Ninth Circuit as well.” 8 2026 WL 622690, at *4. This process may take years. See Banda, 385 F. Supp. 3d at 9 1119. The Court finds that this factor weighs in favor of the Petitioner. 10 The third factor, conditions of detention, favors the Petitioner. “The more that the 11 conditions under which the noncitizen is being held resemble penal confinement, the 12 stronger his argument that he is entitled to a bond hearing.” Banda, 385 F. Supp. 3d at 13 1119. Here, the Petitioner has not pleaded that the conditions of his confinement at the 14 Otay Mesa Detention Center resemble prison. At most, his declaration states that the food 15 and other conditions at Otay Mesa are worsening his preexisting medical issues. (Decl., 16 ¶ 12.) Nevertheless, other courts in this district have found that conditions at Otay Mesa 17 are “indistinguishable from penal confinement.” Kydyrali, 499 F. Supp. 3d at 7723; see, 18 e.g., Guerrero v. Divver, No. 26-cv-01966, 2026 WL 1004847 (S.D. Cal. Apr. 14, 2026). 19 Also, the Respondents do not dispute the Petitioner’s argument on the conditions of his 20 confinement. (See generally Return.) Moreover, the Petitioner has medical conditions 21 including a prolapsed rectum that are worsening. The Court therefore finds that this factor 22 weighs in his favor. 23 The fourth and fifth factors consider the nature and extent of the delays caused by 24 the parties. The Respondents argue that the Petitioner delayed his proceedings by 25 continuing his September and October 2025 hearings. (Return, 15; see EOIR Hearing 26 Report.) The Court need not decide whether the Petitioner or Respondents delayed these 27 hearings. Assuming that the Petitioner did so, the Court finds that the reason noted for the 28 continuances—seeking legal counsel for the Petitioner’s asylum claim—mitigates their 1 weight in the analysis. The Respondents go on to acknowledge that the immigration court 2 delayed the Petitioner’s proceedings by scheduling his merits hearing five months after his 3 November 19, 2025 hearing. Nonetheless, they contend that this delay should not be 4 attributed to the government: “[I]f the Petitioner truly desired a faster merits hearing,” he 5 should have filed a motion to advance or a writ of mandamus to expedite the immigration 6 process. (Return, 15.) 7 The Court disagrees and holds the delay against the Respondents for two reasons. 8 First, the delay is attributable not to the Petitioner but the likely “crowded docket of the 9 immigration courts.” Cui v. Mukasey, 538 F.3d 1289, 1295 (9th Cir. 2008). The Court 10 understands that this department is busy, but “an immigrant’s right to have her case heard 11 should not be sacrificed because of the [immigration judge’s] heavy caseload.” Id. Second, 12 the Respondents ask the Court to penalize the Petitioner for not attempting to accelerate 13 his case regardless of whether acceleration is appropriate. Parties may file a motion to 14 advance “where the circumstances demonstrate” that a case should be expedited, 15 “including where a qualifying member is going to age out, the one-year asylum deadline is 16 approaching, or a family member is critically ill and/or dying.” Maria Baldini-Potermin, 17 Immigration Trial Handbook § 5:32 (Christopher Kozoll ed., updated ed. 2025). 18 Mandamus is a “‘drastic and extraordinary’ remedy ‘reserved for really extraordinary 19 causes.’” Cheney v. U.S. Dist. Ct. for D.C., 542 U.S. 367, 380 (2004) (quoting Ex parte 20 Fahey, 332 U.S. 258, 259–60 (1947)). “Only exceptional circumstances amounting to a 21 judicial usurpation of power, or a clear abuse of discretion, will justify the invocation of 22 this extraordinary remedy.” Id. (citation modified). Neither a motion to advance or 23 mandamus should be filed frivolously. The Respondents’ argument implies, however, that 24 a noncitizen should move to expedite his case, irrespective of merit, to demonstrate that 25 they “truly desire[]” a closer hearing date. (See Return, 15.) The Court rejects this 26 argument and does not read into the Petitioner’s decision not to expedite. The five-month 27 delay is attributed to the Respondents. 28 1 Furthermore, the parties’ joint status report stated that the Petitioner’s merits hearing 2 was reset because “another priority matter was scheduled at the same time.” (ECF No. 12, 3 at 1.) This delay shows that the immigration judge would not likely have granted a motion 4 to move this case up. For this reason and the reasons stated above, the Banda factors 5 regarding delay favor the Petitioner. 6 The sixth factor, the likelihood that the removal proceedings will result in a final 7 order of removal, is neutral. The Court “is in no position to judge the likelihood of success 8 of this argument” or his claim for asylum. Sandesh, 2026 WL 622690. 9 The first factor slightly favors the Petitioner, the second through fifth factors favor 10 the Petitioner, and the sixth factor is neutral. Taken together, the Court finds that the 11 Petitioner’s prolonged detention without a bond hearing violates the Due Process Clause 12 of the Fifth Amendment. 13 C. Relief 14 The Petitioner claims that the neutrality of immigration judges has been “severely 15 compromised.” (Am. Pet., 11.) He contends that immigration judges have been 16 encouraged to rule for the Respondents and “minimize due process.” (Id. at 15.) Thus, the 17 Petitioner argues that immigration judges will not be fair and impartial and seeks release 18 as a remedy instead of a bond hearing. (Id. at 18.) In the alternative, he requests this Court 19 to hold a bond hearing. (Id. at 18–19.) 20 To remedy the violation of the Petitioner’s Due Process rights, the Court is ordering 21 an individualized bond hearing with additional safeguards. See Singh v. Holder, 638 F.3d 22 1196, 1200 (9th Cir. 2011) (holding that noncitizens “facing prolonged detention” are 23 “entitled to a bond hearing before a neutral immigration judge.”). The bond hearing must 24 be before a fair, neutral, and open-minded immigration judge who is ordered to determine 25 whether the Petitioner is a danger to the community or a flight risk and what bond 26 conditions, if any, would be appropriate to ensure the Petitioner’s appearance. During the 27 bond hearing, the Respondents shall bear the burden of establishing by clear and 28 convincing evidence that the Petitioner poses a danger or flight risk. See Sandesh, 2026 1 WL 622690, at *5 (“[I]t [is] appropriate to continue to apply the standard set forth in Singh 2 [v. Holder] in the case of bond hearings for those subjected to prolonged detention under 3 § 1225(b) to protect the critical liberty interest and due process rights of such 4 individuals.”). If the immigration judge denies bond, the judge must make specific findings 5 as to why the Petitioner is a flight risk or a danger to the community. 6 The Court declines to grant outright release for the same reason it discussed in Singh 7 v. LaRose: 8 If the Petitioner believes that the Respondents or the immigration judge violated this order and the writ, the Petitioner can apply to this Court for 9 appropriate sanctions. If past history is any guide, the Respondents have 10 shown the upmost respect for this Court’s judgments and has timely followed them thereby enabling the mutual respect of the Court. There is no reason to 11 believe that the mutual respect for coequal branches of the government will 12 not continue here in the Southern District of California. 13 2026 WL 684654, at *4. The remedy of release without bond is denied without prejudice. 14 The alternative remedy of a bond hearing in front of this Court is also denied without 15 prejudice. 16 // 17 // 18 // 19 // 20 // 21 // 22 // 23 // 24 // 25 // 26 // 27 // 28 // I Hl. CONCLUSION 2 For the reasons stated, the petition for a writ of habeas corpus is GRANTED IN 3 ||PART. The Respondents are ordered to grant Gadzhiev an individualized bond hearing 4 ||before a fair, neutral, and open-minded immigration judge in accordance with the 5 requirements ordered above. The hearing must be held no later than May 28, 2026. The 6 remedy of release without a bond hearing is DENIED without prejudice. The alternative 7 ||remedy of a bond hearing in front of this Court is DENIED without prejudice. 8 The parties shall file a joint statement as to compliance with this writ and order and 9 || the result of the bond hearing by 5 p.m. on May 29, 2026. Ifthe Petitioner’s merits hearing 10 |/results in the Petitioner’s release, the parties may file a motion to vacate this writ as moot. 11 || The Court retains jurisdiction to enforce the writ. 12 IT IS SO ORDERED. 1 ‘ Dated: May 14, 2026 il Vusek Honorlt Barry Ted sehr 15 United States District Judge 16 17 18 19 20 21 22 23 24 25 26 27 28 10