Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 STEPHAN RYTOV, Case No.: 26-cv-2954-JES-JLB 12 Petitioner, ORDER GRANTING PETITION 13 v. 14 CHRISTOPHER LAROSE, Senior [ECF No. 5] Warden, Otay Mesa Detention Center, 15 Respondent. 16 17 18 19 Before the Court is Petitioner Stephan Rytov’s Amended Petition for Writ of Habeas 20 Corpus pursuant to 28 U.S.C. § 2241 (“Petition”), filed on May 22, 2026. ECF No. 5 21 (“FAP”). Pursuant to the Court’s order to show cause, Respondents filed a return on May 22 29, 2026. ECF No. 6 (“Return”). Petitioner also filed a Traverse. ECF No. 10 (“Traverse”). 23 For the reasons set forth below, the Court GRANTS the Petition. 24 I. BACKGROUND 25 Petitioner is a citizen of Russia who entered the United States on August 25, 2025, 26 and was immediately detained. FAP at 2. He has been detained ever since. Id. 27 Petitioner has applied for asylum. Id. An asylum officer made an initial positive 28 assessment in Petitioner’s case. Id. Petitioner was then placed in removal proceedings. Id. 1 On April 8, 2026, an immigration judge (“IJ”) ordered Petitioner removed. Id. at 3. 2 Petitioner filed an appeal, which remains pending. Id. 3 II. LEGAL STANDARD 4 A writ of habeas corpus is “available to every individual detained within the United 5 States.” Hamdi v. Rumsfeld, 542 U.S. 507, 525 (2004) (citing U.S. Const., Art I, § 9, cl. 2). 6 “The essence of habeas corpus is an attack by a person in custody upon the legality of that 7 custody, and . . . the traditional function of the writ is to secure release from illegal 8 custody.” Preiser v. Rodriguez, 411 U.S. 475, 484 (1973). A court may grant a writ of 9 habeas corpus to a petitioner who demonstrates to be in custody in violation of the 10 Constitution or federal law. 28 U.S.C. § 2241(c)(3). Traditionally, “the writ of habeas 11 corpus has served as a means of reviewing the legality of Executive detention, and it is in 12 that context that its protections have been strongest.” I.N.S. v. St. Cyr, 533 U.S. 289, 301 13 (2001). Accordingly, challenges to immigration-related detention are within the purview 14 of a district court's habeas jurisdiction. Zadvydas v. Davis, 533 U.S. 678, 687 (2001); see 15 also Demore v. Kim, 538 U.S. 510, 517 (2003). 16 III. DISCUSSION 17 Petitioner argues that he has been subjected to unconstitutionally prolonged 18 detention and is entitled to an individualized bond hearing. FAP at 3. In the Return, 19 Respondents argue that Petitioner is subject to mandatory detention under 8 U.S.C. § 20 1225(b)(1), and that Petitioner’s detention is not unconstitutionally prolonged. See 21 generally, Return. The Court addresses these arguments below. 22 The Court agrees that Petitioner was detained at the border and has not been granted 23 any form of parole, so Respondents have the authority to detain him under § 1225(b). 24 Return at 5. However, the Court disagrees that no due process violation can therefore arise, 25 as Respondents claim. Respondents essentially argue that § 1225(b) provides no limitation 26 on the length of detention and that the statute provides all the due process that the petitioner 27 is owed. Id. This position has been called into question by the Ninth Circuit: 28 1 We have grave doubts that any statute that allows for arbitrary prolonged detention without any process is constitutional or that those who founded our 2 democracy precisely to protect against the government’s arbitrary deprivation 3 of liberty would have thought so. Arbitrary civil detention is not a feature of our American government. “[L]iberty is the norm, and detention prior to trial 4 or without trial is the carefully limited exception.” United States v. Salerno, 5 481 U.S. 739, 755 (1987). Civil detention violates due process outside of “certain special and narrow nonpunitive circumstances.” Zadvydas v. Davis, 6 533 U.S. 678, 690 (2001) (internal quotation marks and citation omitted). 7 Rodriguez v. Marin, 909 F.3d 252, 256-57 (9th Cir. 2018) (alteration in original). Indeed, 8 numerous district courts have found that prolonged mandatory detention at some point will 9 raise due process considerations. See Maksin v. Warden, Golden State Annex, No. 1:25- 10 CV-00955-SKO (HC), 2025 WL 2879328, at *3 (E.D. Cal. Oct. 9, 2025) (“Several courts 11 including the Third, Sixth, and Ninth Circuit, as well as numerous district courts, have 12 found that unreasonably long detention periods may violate the due process clause.” 13 (collecting cases)); Abdul-Samed v. Warden of Golden State Annex Det. Facility, No. 1:25- 14 CV-00098-SAB-HC, 2025 WL 2099343, at *6 (E.D. Cal. July 25, 2025) (“[E]ssentially all 15 district courts that have considered the issue agree that prolonged mandatory detention 16 pending removal proceedings, without a bond hearing, will—at some point—violate the 17 right to due process.”) (internal citation omitted); Kydyrali v. Wolf, 499 F. Supp. 3d 768, 18 772 (S.D. Cal. 2020) (“[T]he Court joins the majority of courts across the country in 19 concluding that an unreasonably prolonged detention under 8 U.S.C. § 1225(b) without an 20 individualized bond hearing violates due process.”). Respondents’ contention that 21 Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 207–09 (1953), governs here 22 because Petitioner was detained at a point of entry is similarly unavailing. See Mot. at 6. 23 As a number of courts have explained in similar cases, Mezei is distinguished by the 24 national security concerns present in that case. See Xie v. Larose, No. 3:26-CV-01116- 25 RBM-MMP, 2026 WL 836351, at *3 (S.D. Cal. Mar. 26, 2026) (analyzing the Supreme 26 Court’s reasoning in Mezei and collecting cases). Further, even Respondents recognize in 27 their return that district courts within this Circuit have found a potential due process 28 1 violation to arise when the detention has become too prolonged. See id. at 8-10 (citing 2 Lopez v. Garland, 631 F. Supp. 3d 870, 879 (E.D. Cal. 2022) and analyzing factors). 3 “Neither the Ninth Circuit nor the Supreme Court have provided guidance regarding 4 the point at which an immigration detainee’s prolonged mandatory detention becomes 5 unconstitutional.” Amado v. United States Dep’t of Just., No. 25-CV-2687-LL(DDL), 2025 6 WL 3079052, at *5 (S.D. Cal. Nov. 4, 2025). Thus, district courts within this Circuit have 7 employed similar but slightly varying tests. In the Lopez case cited by Respondents, the 8 court employed a test with three factors to decide when mandatory detention under 9 § 1226(c) becomes unconstitutionally prolonged: “the total length of detention to date, the 10 duration of future detention, and the delays in the removal proceedings caused by the 11 petitioner and the government.” 631 F. Supp. 3d at 879. In Banda v. McAleenan, 385 F. 12 Supp. 3d 1099, 1118 (W.D. Wash. 2019), the district court considered the following six 13 factors in the § 1225(b) context: “(1) the total length of detention to date; (2) the likely 14 duration of future detention; (3) the conditions of detention; (4) delays in the removal 15 proceedings caused by the detainee; (5) delays in the removal proceedings caused by the 16 government; and (6) the likelihood that the removal proceedings will result in a final order 17 of removal.” Other courts have simply applied the generalized Mathews v. Eldridge, 424 18 U.S. 319 (1976), procedural due process test. See Henriquez v. Garland, No. 22-cv-869- 19 EJD, 2022 WL 2132919, at *5-6 (N.D. Cal. June 14, 2022). 20 The Court finds it most appropriate to apply the Banda test to Petitioner’s detention 21 here under § 1225(b), as other courts within this district have done in the past.1 See, e.g., 22 Amado, 2025 WL 3079052, at *5 (applying 6-factor Banda test to mandatory detention 23 under § 1225(b)); Kadir v. LaRose, 25-CV-1045-LL-MMP, 2025 WL 2932654 (S.D. Cal. 24 Oct. 15, 2025) (same); Gao v. LaRose, No. 25-CV-2084-RSH-SBC, 2025 WL 2770633, at 25 26 1 Even though the Court does not employ the Lopez test as Respondents cite, the Court notes that the Lopez 27 factors are a subset of the Banda factors. Based on a discussion of the Banda factors below, the Court would reach the same conclusion even if it were to consider solely the Lopez factors because it finds the 28 1 *4 (S.D. Cal. Sept. 26, 2025); Sadeqi v. LaRose, No. 25-CV-2587-RSH-BJW, 2025 WL 2 3154520, at *3 (S.D. Cal. Nov. 12, 2025). 3 The first Banda factor, the length of detention, is “the most important factor.” Banda, 4 385 F. Supp. 3d at 1118. Petitioner has been detained since late August of 2025, just over 5 9 months prior to the writing of this order. FAP at 6. While this factor itself is not 6 dispositive, the length now is within the range such that this factor should weigh in favor 7 of Petitioner. Amado, 2025 WL 3079052, at *5 (“Courts have found detention over seven 8 months without a bond hearing weighs toward a finding that it is unreasonable” (citing 9 cases) and finding detention of thirteen months to weigh in favor of the petitioner); Sadeqi, 10 2025 WL 3154520, at *3 (though “almost 12 months” detention was not dispositive, 11 finding it to weigh in favor of petitioner); Gao, 2025 WL 2770633, at *5 (“The Court finds 12 that Petitioner’s detention for over 10 months without a bond hearing, in the context of the 13 specific circumstances described above, has become unreasonable and violates due 14 process.”); Tonoyan v. Andrews, No. 1:25-CV-00815-SKO (HC), 2025 WL 3013684, at 15 *4 (E.D. Cal. Oct. 28, 2025) (“Petitioner has been detained approximately 11 months. This 16 period . . . qualifies as prolonged.”); Gonzalez v. Bonnar, No. 18-cv-05321-JSC, 2019 WL 17 330906, at *3 (N.D. Cal. Jan. 25, 2019) (“In general, ‘[a]s detention continues past a year, 18 courts become extremely wary of permitting continued custody absent a bond hearing.’”) 19 (citation omitted). Thus, this first and most important factor weighs in favor of Petitioner. 20 The second Banda factor is the likely duration of future detention, and considers 21 “anticipated duration of all removal proceedings—including administrative and judicial 22 appeals.” Banda, 385 F. Supp. 3d at 1119. Here, Petitioner’s case is currently on appeal to 23 the BIA. See Dep’t of Homeland Sec. v. Thuraissigiam, 591 U.S. 103, 108 (2020) (“The 24 usual removal process involves an evidentiary hearing before an immigration judge, and at 25 that hearing an alien may attempt to show that he or she should not be removed. . . . If that 26 claim is rejected and the alien is ordered removed, the alien can appeal the removal order 27 to the Board of Immigration Appeals and, if that appeal is unsuccessful, the alien is 28 generally entitled to review in a federal court of appeals.”). These appeals can take a long 1 time. See Banda, 385 F. Supp. 3d at 1119 (finding appeal of removal order with the BIA 2 and review in the Ninth Circuit may take up to two years or longer). Petitioner’s position 3 is just as likely to lead to further prolonged detention as the Banda petitioner, where there 4 was a final removal order from an IJ and he had just filed an appeal to the BIA. See id. The 5 Banda court concluded that this factor favored the petitioner under those circumstances, 6 and the Court finds the same here. 7 The third Banda factor is regarding the conditions of detention. “The more that the 8 conditions under which the noncitizen is being held resemble penal confinement, the 9 stronger his argument that he is entitled to a bond hearing.” Banda, 385 F. Supp. 3d at 1119 10 (citation omitted). Courts have recognized that the conditions in local detention centers are 11 “indistinguishable from penal confinement.” See Kydyrali, 499 F. Supp. 3d at 773; Amado, 12 2025 WL 3079052, at *6. The Court finds that this factor also weighs in favor of Petitioner. 13 The fourth and fifth Banda factors look to the nature and extent of any delays in the 14 removal proceedings caused by the petitioner and then the government respectively. 15 Banda, 385 F. Supp. 3d at 1119-1120. Here, neither party argues any particular delay 16 attributable to the other. FAP at 8; Return at 8. Thus, the Court finds that both of these 17 factors are neutral. 18 The sixth Banda factor looks to the likelihood that the removal proceedings will 19 result in a final order of removal. Banda, 385 F. Supp. 3d at 1120 (“In other words, the 20 Court considers whether the noncitizen has asserted any defenses to removal.”). Here, 21 Petitioner has had a positive credible fear finding, and is involved in the appeals process 22 for an order of removal. See FAP at 2. The Court is in no position to judge the likelihood 23 of success of Petitioner’s case, thus the Court finds this factor neutral. 24 In summary, at least three of the six factors weigh in favor Petitioner, with the other 25 factors being neutral. Accordingly, the Court concludes that Petitioner’s detention of over 26 nine months to date under § 1225(b) has become unreasonable and due process requires 27 the Government to provide him with an individualized bond hearing at this time. 28 1 IV. CONCLUSION 2 For the reasons discussed above, the Court GRANTS Petitioner’s (“the non- 3 || citizen”) writ of habeas corpus, and ORDERS as follows: 4 (1) The Court ORDERS the government to provide the non-citizen with an 5 individualized bond determination hearing within fourteen days of this 6 Order.’ 7 a. hearing, the government SHALL BEAR the burden of establishing 8 by clear and convincing evidence that the non-citizen is a danger to the 9 community or a flight risk if released. 10 b. The IJ SHALL consider alternative conditions of release and the non- 11 citizen’s ability to pay bond if he or she determines bond is appropriate. 12 c. The government SHALL make a complete record of the bond hearing 13 available to the non-citizen. 14 (2) The government is ORDERED to File a Notice of Compliance within five 15 days of providing the non-citizen with the bond hearing, including apprising 16 the Court of the results of the hearing. 17 The Clerk of Court is ORDERED to CLOSE this case. 18 IT IS SO ORDERED. 19 || Dated: June 2, 2026 20 Jon Nowe 4 21 Honorable James E. Sunmons Jr. United States District Judge 22 . 23 24 25 | In Sandesh vy. LaRose, this Court analyzed the due process requirements of a bond hearing for an 26 || individual subject to prolonged detention under § 1225(b). No. 26-CV-0846-JES-DDL at Dkt. 13 (S.D. Cal. Mar. 5, 2026). The Court incorporates by reference its analysis there regarding the below due process 27 requirements. See also Sadeqi, 2025 WL 3154520, at *4 (citing Singh, 638 F.3 at 1203 and Martinez v. Clark, 124 F.4th 775, 785-86 (9th Cir. 2024)); Kadir, 2025 WL 2932654, at *6 (granting relief that 28 followed the Singh standard).