Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DAWIT FITSUM KALAYU, Case No.: 26cv2394-LL-VET 12 Petitioner, ORDER GRANTING IN PART AND 13 v. DENYING IN PART AMENDED PETITION FOR WRIT OF HABEAS 14 MARKWAYNE MULLIN, SECRETARY CORPUS OF THE DEPARTMENT OF 15 HOMELAND SECURITY, ET AL., [ECF No. 8] 16 Respondents. 17 18 19 Before the Court is Petitioner Dawit Fitsum Kalayu’s operative Amended Petition 20 for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241. ECF No. 8 (“Pet.”). 21 Respondents filed a Return in opposition to the Petition. ECF No. 10 (“Ret.”). Petitioner 22 filed a Traverse in support of his Petition. ECF No. 11. For the reasons set forth below, the 23 Amended Petition is GRANTED IN PART and DENIED IN PART. 24 I. BACKGROUND 25 Petitioner, a citizen of Ethiopia, alleges that he has been detained by the United 26 States Department of Homeland Security’s (“DHS”) Immigration and Customs 27 Enforcement (“ICE”) division at the Otay Mesa Detention Center since September 20, 28 2025, when he entered the United States. Pet. at 2; see also Decl. of Dawit Fitsum Kalayu 1 at ECF No. 8-1, ¶ 1. He “immediately” turned himself into U.S. Customs and Border 2 Protection officers. Pet. at 2. Mr. Kalayu received a positive credible fear determination 3 and was issued a Notice to Appear. Ret. at 2. Mr. Kalayu applied for asylum, withholding 4 of removal, and relief under the Convention Against Torture. Id. 5 In February 2026, DHS filed a Motion to Pretermit Petitioner’s applications for relief 6 due to Petitioner being subject to the Asylum Cooperative Agreement with Uganda. Id. at 7 3; see also Exhibit 4 to the Return. On February 18, 2026, an immigration judge denied 8 Petitioner’s applications, granted the Motion to Pretermit, and ordered Petitioner removed 9 to Uganda. Id. Petitioner states that the government has “never found” Mr. Kalayu to be a 10 danger “or even a flight risk, much less an emergency threat to national security.” Traverse 11 at 5. Petitioner appealed the removal order to the Board of Immigration Appeals (“BIA”), 12 and the appeal is still pending. Ret. at 2; see also Exhibit 5 to the Return. 13 Petitioner seeks a bond hearing pursuant to 8 U.S.C. § 1225(b) and also argues that 14 the Immigration Judges’ neutrality has been “compromised.” Pet at 15-16. Accordingly, 15 Petitioner seeks either immediate release or additional safeguards on any bond hearing. Id. 16 Respondents filed a Return to the Amended Petition, in which they argue that Petitioner is 17 “mandatorily detained under 8 U.S.C. § 1225(b)(1) and also that the immigration judges’ 18 neutrality is not compromised. Ret. at 10-11. 19 For the reasons stated below, the Court GRANTS Petitioner’s request for an 20 individualized bond hearing before an immigration judge and DENIES Petitioner’s request 21 for immediate release and request for a bond hearing before the district court. 22 II. LEGAL STANDARD 23 A federal prisoner challenging the execution of his sentence, rather than the legality 24 of the sentence itself, may file a petition for writ of habeas corpus in the district of his 25 confinement pursuant to 28 U.S.C. § 2241. See 28 U.S.C. § 2241(a). The sole judicial body 26 able to review challenges to final orders of deportation, exclusion, or removal is the court 27 of appeals. See generally 8 U.S.C. § 1252; see also Alvarez–Barajas v. Gonzales, 418 F.3d 28 1050, 1052 (9th Cir. 2005) (citing REAL ID Act, Pub. L. No. 109-13, 119 Stat. 231, § 1 106(a)). However, for claims challenging ancillary or collateral issues arising 2 independently from the removal process — for example, a claim of indefinite detention — 3 federal habeas corpus jurisdiction remains in the district court. Nadarajah v. Gonzales, 443 4 F.3d 1069, 1076 (9th Cir. 2006), abrogated on other grounds by Jennings v. Rodriguez, 5 138 S. Ct. 830 (2018); Alvarez v. Sessions, 338 F. Supp. 3d 1042, 1048–49 (N.D. Cal. 6 2018) (citations omitted). 7 III. DISCUSSION 8 In Respondents’ Return to the Petition, they raise the following arguments: (1) 9 Petitioner’s claim is jurisdictionally barred by 8 U.S.C. § 1252(g); (2) Petitioner is lawfully 10 detained under 8 U.S.C. § 1225(b) and his detention has not become unconstitutionally 11 prolonged as to violate due process; and (3) immigration judges’ neutrality has not been 12 compromised. The Court will address each of these issues in turn. 13 A. Jurisdiction and 8 U.S.C. § 1252 14 The arguments with regards to jurisdiction being barred under 8 U.S.C. § 1252 are 15 identical to those recently addressed by the undersigned in Beltran et al. v. Noem et al., 16 No. 25CV2650-LL-DEB, 2025 WL 3078837, at *3-4 (S.D. Cal. Nov. 4, 2025). The Court 17 adopts its reasoning as to these issues and incorporates it by reference. See also Martinez 18 Lopez v. Noem et al., No. 25-CV-2717-JES-AHG, 2025 WL 3030457, at *2-3 (S.D. Cal. 19 Oct. 30, 2025) (holding same). 20 B. Detention Under 8 U.S.C. § 1225 and Length of Detention 21 “Neither the Ninth Circuit nor the Supreme Court have provided guidance regarding 22 the point at which an immigration detainee’s prolonged mandatory detention becomes 23 unconstitutional.” Amado v. United States Dep’t of Just., No. 25CV2687-LL(DDL), 2025 24 WL 3079052, at *5 (S.D. Cal. Nov. 4, 2025). However, “[n]early all district courts that 25 have considered [the constitutionality of prolonged mandatory detention] agree that 26 prolonged mandatory detention pending removal proceedings, without a bond hearing, will 27 — at some point — violate the right to due process.” Singh v. Barr, 400 F. Supp. 3d 1005, 28 1020 (S.D. Cal. 2019) (internal quotation marks and citations omitted) (collecting cases). 1 In determining whether detention has become unreasonable, courts evaluate factors 2 including “the total length of detention to date, the likely duration of future detention, and 3 the delays in the removal proceedings caused by the petitioner and the government.” Lopez 4 v. Garland, 631 F. Supp. 3d 870, 879 (E.D. Cal. 2022). Some courts also consider the 5 conditions of detention and the likelihood that the removal proceedings will result in a final 6 order of removal. See, e.g, Sadeqi v. LaRose, 809 F. Supp. 3d 1090, 1094 (S.D. Cal. 2025). 7 The Court finds that Petitioner has established he is entitled to a bond hearing. 8 Petitioner’s length of detention, over eight months, without a bond hearing weighs in 9 Petitioner’s favor. Courts have found detention of similar lengths without a bond hearing 10 weighs towards a finding that detention has become unreasonable. See, e.g., Guatam v. 11 Corr. Corp of Am., No. 3:25-CV-3600-JES-DEB, 2026 WL 25846, at *4 (S.D. Cal. Jan. 5, 12 2026) (finding that one-year detention weighed in favor of granting a bond hearing); 13 Sadeqi, 809 F. Supp. 3d at 1095 (finding that eleven month detention without a bond 14 hearing “absent meaningful rebuttal by [r]espondents” was unreasonable and violated due 15 process); Amado, 2025 WL 3079052, at *5 (“Courts have found detention over seven 16 months without a bond hearing weighs toward a finding that it is unreasonable.”). The 17 length of detention therefore favors Petitioner. 18 As to the likely duration of future detention, Petitioner argues that he has reason to 19 anticipate significant future detention since his appeal process could go on for an 20 undetermined amount of time. Pet. at 8. The Court agrees, since Respondents “cannot 21 predict with any degree of confidence when the BIA appeal will be resolved.” Masood v. 22 Barr, No. 19-CV-07623-JD, 2020 WL 95633, at *3 (N.D. Cal. Jan. 8, 2020). Therefore, 23 the likely duration of future detention weighs in Petitioner’s favor. 24 Delay in removal proceedings is neutral since the record does not suggest delay by 25 Respondents nor Petitioner. See generally Pet.; Ret. Balancing the discussed factors, the 26 Court concludes that Petitioner’s detention has become unreasonably prolonged, and 27 therefore, the Petitioner is entitled to a bond hearing. 28 / / / 1 C. Neutrality Concerns Surrounding Immigration Judges 2 Petitioner argues that the Court should order his immediate release because 3 immigration judges’ neutrality has been “severely compromised.” Pet. at 8. The Court 4 declines to address the issues raised by Petitioner regarding the neutrality of immigration 5 courts. See, e.g., Sandesh v. LaRose, No. 26-CV-0846-JES-DDL, 2026 WL 622690, at *5 6 (S.D. Cal. Mar. 5, 2026). “It is axiomatic that the [Immigration Judge] must apply the 7 proper legal standard to effectuate this Court’s order for a bond hearing.” Id. Indeed, 8 “[d]istrict courts are better positioned to review the implementation of their orders in cases 9 such as this after the bond hearing has occurred, so that the complete record in the case 10 may be fairly evaluated.” Id. (internal citation omitted). Accordingly, Petitioner’s request 11 for immediate release on this ground is DENIED. 12 IV. CONCLUSION 13 Based on the foregoing, the Court GRANTS IN PART AND DENIES IN PART 14 Mr. Kalayu’s Amended Petition for a Writ of Habeas Corpus (ECF No. 8) as follows: 15 1. Mr. Kalayu’s request for immediate release or to have the bond hearing 16 conducted by the district court is DENIED. 17 2. Mr. Kalayu’s alternative request for the Court to order a bond hearing is 18 GRANTED. The Court ORDERS the government to provide Mr. Kalayu 19 with an individualized bond hearing within fourteen (14) days before a 20 neutral immigration judge in which the government bears the burden of 21 establishing by clear and convincing evidence that Mr. Kalayu is a danger to 22 the community or a flight risk if released. 23 3. The immigration judge SHALL consider alternative conditions of release and 24 Mr. Kalayu’s ability to pay bond if he or she determines bond is appropriate. 25 Hernandez v. Sessions, 872 F.3d 976, 990–91 (9th Cir. 2017). 26 4. If requested by Mr. Kalayu, the government SHALL assist Mr. Kalayu in 27 obtaining the audio recording of the bond hearing. Martinez v. Clark, 124 28 I F.4th 775, 786 (9th Cir. 2024) (citing Singh v. Holder, 638 F.3d 1196, 1200 2 (9th Cir. 2011)). 3 5. The Clerk of Court shall enter judgment in Mr. Kalayu’s favor and close this 4 case. 5 IT IS SO ORDERED. 6 Dated: June 1, 2026 NO 7 Jc J g Honorable Linda Lopez 9 United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28