Opinion

1 UNITED STATES DISTRICT COURT 2 SOUTHERN DISTRICT OF CALIFORNIA 3

4 BAKHTIAR SAHAK, Case No.: 3:26-cv-02292-LEK-SBC 5 Petitioner, 6 ORDER GRANTING IN PART AND v. DENYING IN PART PETITION 7 CHRISTOPHER J. LAROSE, Senior FOR WRIT OF HABEAS CORPUS 8 Warden, Otay Mesa Detention Center, San AND ORDER TO SHOW CAUSE Diego, California; DANIEL A. WITHIN THREE DAYS; 9 BRIGHTMAN, Field Office Director, San COMPLAINT FOR 10 Diego Office of Detention and Removal, DECLARATORY AND U.S. Immigrations and Customs INJUNCTIVE RELIEF 11 Enforcement; U.S. DEPARTMENT OF 12 HOMELAND SECURITY; TODD M. LYONS, Acting Director, Immigration 13 and Customs Enforcement, U.S. 14 Department of Homeland Security; SIRCE OWEN, Acting Director for 15 Executive Office for Immigration Review; 16 KRISTI NOEM, Secretary, U.S. Department of Homeland Security; PAM 17 BONDI, Attorney General of the United 18 States, 19 Respondents. 20 21 Before this Court is Petitioner Bakhtiar Sahak’s (“Petitioner”) Petition for 22 Writ of Habeas Corpus and Order to Show Cause Within Three Days; Complaint for 23 Declaratory and Injunctive Relief (“Petition”), filed on April 10, 2026. [Dkt. no. 1.] 24 Respondents Christopher J. LaRose, Senior Warden, Otay Mesa Detention Center, San 25 Diego, California; Daniel A. Brightman, Field Office Director, San Diego Office of 26 Detention and Removal, U.S. Immigration and Customs Enforcement (“ICE”); the U.S. 27 Department of Homeland Security (“DHS”); Todd M. Lyons, Acting Director, ICE, 1 DHS; Sirce Owen, Acting Director for the Executive Office for Immigration Review; 2 Kristi Noem, Secretary, DHS; and Pam Bondi, Attorney General of the United States 3 (“Respondents”), filed their return to the Petition (“Return”) on April 22, 2026. [Dkt. 4 no. 5.] Petitioner filed a traverse in support of the Petition (“Traverse”) on April 27, 5 2026. [Dkt. no. 6.] 6 BACKGROUND 7 Petitioner, a citizen of Afghanistan, entered the United States on 8 December 1, 2021. Petitioner approached border officials and informed them that he was 9 afraid to return to Afghanistan. [Petition at ¶¶ 17-18.] Petitioner was subsequently 10 detained for approximately one and a half months. During that time, he was referred to an 11 asylum officer, who conducted an interview and found that Petitioner had a credible fear. 12 [Id. at ¶ 19.] It was also determined that Petitioner was neither a flight risk nor a danger 13 to the community. Therefore, on January 19, 2022, Petitioner was released on conditional 14 parole, pursuant to Title 8 United States Code Section 1226, and subject to a bond 15 payment. See id. at ¶ 20. 16 Also on January 19, 2022, Petitioner was issued a Notice to Appear, which 17 stated that he was “an ‘alien present in the United States who has not been admitted or 18 paroled’ under Section 212(a)(6)(A)(i)” and required him to appear before the Los 19 Angeles Asylum Office, where his removal proceedings were pending. [Id. at ¶¶ 20-21.] 20 Petitioner states that he: complied with all of the conditions of his parole; timely filed an 21 application for asylum; and obtained a work permit, social security card, and a California 22 driver’s license. [Id. at ¶ 22.] 23 On September 13, 2025, Petitioner was working as a delivery driver and was 24 attempting to make a delivery to an address near the border. [Id. at ¶ 24.] Petitioner 25 reportedly told the U.S. Customs and Border Protection (“CBP”) officer that “he went 26 into Mexico by accident.” See Return, Exh. 1 (DHS Record of Deportable/Inadmissible 27 Alien, Form I-213, dated 9/14/25 (“Form I-213”)) at 3. As soon as he realized what 28 happened, Petitioner got out of his car, which was in Mexico, and started to walk towards 1 a CBP officer. See id. The Form I-213 states Petitioner “attempted to enter without 2 inspection through the San Ysidro Port of Entry.” [Id. at 2.] Although Petitioner “denies 3 actually ‘exiting’ the U.S. and ‘entering’ Mexico,” whether Petitioner actually did so is 4 not relevant to the Petition, which asserts “a ‘prolonged detention’ argument and not an 5 ‘unlawful re-detention’ argument.”1 See Petition at ¶ 24. 6 Petitioner was detained on September 13, 2025, but he was taken to a 7 hospital for treatment because he suffered a medical emergency. After that, he was held 8 at a CBP facility in San Ysidro for five days, and then he was transferred to the Otay 9 Mesa Detention Center, where he remained through the filing of the Petition. See id. at 10 ¶ 25. 11 On September 24, 2025, a Notice to Appear was issued that required 12 Petitioner to appear before an immigration judge on September 29, 2025. [Id. at ¶ 27.] At 13 the September 29, 2025 master calendar hearing, Petitioner appeared with his counsel 14 who was representing him in connection with his asylum application, but counsel did not 15 handle cases in which the applicant was detained. The immigration judge therefore 16 continued the proceedings to November 12, 2025 to allow Petitioner to secure new 17 counsel. At the November 12, 2025 hearing, Petitioner appeared with new counsel, but 18 the immigration judge continued the hearing to December 11, 2025 and directed 19 Petitioner to file an amended asylum application. See id. at ¶¶ 28-29. 20 Petitioner filed the amended asylum application prior to the December 11, 21 2025 hearing, but the immigration judge continued the hearing to January 28, 2026 and 22 directed Petitioner to file a declaration and other documentation to support the amended 23 asylum application. Petitioner complied, and during the January 28, 2026 hearing, the 24 case was set for a merits hearing on June 2, 2026, which the immigration judge stated 25 was the earliest available date. See id. at ¶¶ 30-31. However, during April 2026, the 26 27 28 1 Petitioner, however, does not waive any argument that his re-detention was 1 June 2 merits hearing was vacated sua sponte, and another master calendar hearing was 2 scheduled for May 14, 2026. See id. at ¶ 32. Prior to the filing of the instant Petition, 3 Petitioner had not requested a bond hearing before an immigration judge because 4 immigration judges “in this jurisdiction have consistently ruled that they do not have 5 jurisdiction to redetermine the conditions of custody over individuals” in situations 6 similar to Petitioner’s. See id. at ¶ 33. 7 Petitioner contends that he is being detained “without a tenable justification 8 and without a demonstration that removal is significantly likely in the reasonably 9 foreseeable future” and that this violates his Fifth Amendment right to due process. See 10 id. at ¶¶ 35, 37; see also id. at ¶¶ 44-54. 11 Among other things, Petitioner asks this Court to order his immediate 12 release from custody or, in the alternative, direct Respondents to hold “an immediate 13 bond hearing before a neutral decisionmaker where DHS bears the burden of justifying 14 [Petitioner]’s continued detention by clear and convincing evidence and where 15 alternatives to detention and [Petitioner]’s ability to pay a bond are considered.” [Id. at 16 pg. 16.] 17 Respondents argue that Petitioner is subject to mandatory detention under 18 Title 8 United States Code Section 1225(b)(1)(B)(ii), and that the period of detention has 19 not been prolonged to the point that it violates Petitioner’s constitutional rights. See 20 Return at 3. 21 STANDARD 22 A federal prisoner challenging the execution of his or her sentence, rather 23 than the legality of the sentence itself, may file a petition for writ of habeas corpus in the 24 district of his confinement pursuant to Title 28 United States Code Section 2241. See 28 25 U.S.C. § 2241(a); Zavala v. Ives, 785 F.3d 367, 370 n.3 (9th Cir. 2015). The sole judicial 26 body able to review challenges to final orders of deportation, exclusion, or removal is the 27 court of appeals. See 8 U.S.C. § 1252(a)(1), (5); see also Alvarez-Barajas v. Gonzales, 28 418 F.3d 1050, 1052 (9th Cir. 2005) (citing REAL ID Act of 2005, Pub. L. No. 109-13, 1 119 Stat. 231, § 106(a)). However, for claims challenging ancillary or collateral issues 2 arising independently from the removal process - for example, a claim of indefinite 3 detention - federal habeas corpus jurisdiction remains in the district court. Alvarez v. 4 Sessions, 338 F. Supp. 3d 1042, 1047-48 (N.D. Cal. 2018) (citations omitted); see also 5 Nadarajah v. Gonzales, 443 F.3d 1069, 1076 (9th Cir. 2006).2 6 DISCUSSION 7 Section 1225(b)(1)(B)(ii) states: “If the officer determines at the time of the 8 interview that an alien has a credible fear of persecution (within the meaning of clause 9 (v)), the alien shall be detained for further consideration of the application for asylum.” 10 However, this district court has recognized that: 11 “[T]he government’s discretion to incarcerate non-citizens is always constrained by the requirements of due process.” Hernandez v. 12 Sessions, 872 F.3d 976, 981 (9th Cir. 2017). “Civil immigration 13 detention is permissible only to prevent flight or protect against danger to the community[.]” Pinchi v. Noem, 792 F. Supp. 3d 1025, 14 1035 (N.D. Cal. 2025); see also Zadvydas v. Davis, 533 U.S. 678, 690 15 (2001) (“A statute permitting indefinite detention of an alien would raise a serious constitutional problem.”); Rodriguez v. Marin, 909 16 F.3d 252, 256 (9th Cir. 2018) (“We have grave doubts that any statute 17 that allows for arbitrary prolonged detention without any process is constitutional or that those who founded our democracy precisely to 18 protect against the government’s arbitrary deprivation of liberty would 19 have thought so. Arbitrary civil detention is not a feature of our American government.”). 20 21 . . . .

22 Indeed, “[n]early all district courts that have considered the 23 issue agree that prolonged mandatory detention pending removal proceedings, without a bond hearing, will - at some point - violate the 24 right to due process.” Singh v. Barr, 400 F. Supp. 3d 1005 (S.D. Cal. 25 26 27 2 Nadarajah was abrogated on other grounds by Jennings v. Rodriguez, 583 U.S. 281 (2018), as recognized by Esquivel-Ipina v. LaRose, 812 F. Supp. 3d 1073, 1077 28 1 2019) (internal quotation marks and citations omitted) (collecting cases); see also Maksin v. Warden, Golden State Annex, 2025 WL 2 2879328, at *3 (E.D. Cal. Oct. 9, 2025) (collecting cases). This holds 3 true for those detained under Section 1225 . . . . See Gao v. LaRose, 805 F. Supp. 3d 1106, 1110 (S.D. Cal. 2025) (agreeing with “the 4 majority position that a petitioner detained under Section 1225(b)(1) 5 may assert a due process challenge to prolonged mandatory detention without a bond hearing”); see also Kydyrali v. Wolf, 499 F. Supp. 3d 6 768, 772 (S.D. Cal. 2020). 7 . . . “Neither the Ninth Circuit nor the Supreme Court have 8 provided guidance regarding the point at which an immigration 9 detainee’s prolonged mandatory detention becomes unconstitutional.” Amado v. United States Dep’t of Just., 2025 WL 3079052, at *5 (S.D. 10 Cal. Nov. 4, 2025) (citation omitted). In determining whether 11 detention has become unreasonable, courts evaluate factors including “the total length of detention to date, the likely duration of future 12 detention, and the delays in the removal proceedings caused by the 13 petitioner and the government.” Lopez v. Garland, 631 F. Supp. 3d 870, 879 (E.D. Cal. 2022). Some courts also consider the conditions 14 of detention and the likelihood that the removal proceedings will 15 result in a final order of removal. See, e.g., Sadeqi v. LaRose, 809 F. Supp. 3d 1090, 1094 (S.D. Cal. 2025). 16 17 Derbew v. LaRose, Case No. 26-CV-2803 JAO(DEB), 2026 WL 1468308, at *2-3 (S.D. 18 Cal. May 22, 2026) (some alterations in Derbew). 19 In the instant case, Petitioner had been detained for almost seven months 20 when he filed the Petition. See Petition at ¶ 51. Since there is no indication in the record 21 that Petitioner was released while the Petition has been pending, this Court assumes that 22 his detention has continued since the filing of the Petition. The length of detention - now 23 more than eight months - weighs in favor of Petitioner. See Derbew, 2026 WL 1468308, 24 at *3 (finding that the delay of more than eight months weighed in the petitioner’s favor 25 (citing Zadvydas, 533 U.S. at 701, 121 S. Ct. 2491 (treating six months as a 26 “presumptively reasonable period of detention” in a related context); Amado, 2025 WL 27 3079052, at *5 (noting that “[c]ourts have found detention over seven months without a 28 bond hearing weighs toward a finding that it is unreasonable”))). 1 Second, Petitioner has not yet had a merits hearing in his removal and 2 asylum proceeding, and, if he is denied relief in those proceedings, Petitioner may appeal 3 to the Board of Immigration Appeals and petition for review by the Ninth Circuit Court 4 of Appeals. Because this process may take years, this Court finds that the anticipated 5 length of detention also weighs in favor of Petitioner. See id. 6 Finally, other than the initial continuance of the master calendar hearing 7 from September 29, 2025 to November 12, 2025 because Petitioner needed to retain new 8 counsel, the delays in the removal proceedings have not been caused by Petitioner, nor is 9 there any indication that the delays were caused by Respondents. See Petition at ¶¶ 28- 10 32. Having considered all of these factors, this Court concludes that Petitioner’s detention 11 has become unreasonably prolonged, and therefore, his due process rights have been 12 violated. 13 Turning to the issue of the appropriate relief, this Court notes that, although 14 Petitioner was previously granted conditional parole, [id. at ¶ 20,] Respondents state that 15 Petitioner’s parole expired,3 [Return at 2,] and Petitioner’s Traverse does not address the 16 status of his parole. Further, as previously noted, there is a dispute regarding the issue of 17 whether Petitioner exited the United States on September 13, 2025. See Petition at ¶ 24. 18 This Court therefore concludes that immediate release is not an appropriate remedy based 19 on the existing record in this case. Petitioner’s request for immediate release is denied 20 without prejudice. 21 22 23 24 25 3 Petitioner’s Form I-213 indicates that Petitioner acknowledged during his September 14, 2025 statement that his parole expired on September 6, 2025. See Return, 26 Exh. 1 at 3. Petitioner stated that he applied for a renewal before the expiration date, and 27 he received a letter informing him that the original parole was extended. See id. However, it appears that the CBP officer questioned that representation. See id. (noting 28 1 Petitioner’s alternative request for an individualized bond hearing is granted. 2 To address Petitioner’s concerns, this Court makes the following orders regarding the 3 bond hearing: 4 -the hearing must be before a fair, neutral, and open-minded immigration judge; 5 -the immigration judge shall determine whether Petitioner is a danger to the community 6 or a flight risk and what bond conditions, if any, would be appropriate to ensure 7 Petitioner’s appearance; 8 -Respondents shall bear the burden of establishing by clear and convincing evidence that 9 Petitioner poses a danger or flight risk; see Sandesh v. LaRose, Case No.: 26-cv- 10 0846-JES-DDL, 2026 WL 622690, at *5 (S.D. Cal. Mar. 5, 2026) (“[I]t [is] 11 appropriate to continue to apply the standard set forth in Singh [v. Holder, 638 12 F.3d 1196 (9th Cir. 2011),4] in the case of bond hearings for those subjected to 13 prolonged detention under § 1225(b) to protect the critical liberty interest and due 14 process rights of such individuals.” (citations omitted)); 15 -if the immigration judge denies bond, the immigration judge must make specific 16 findings as to why Petitioner is a flight risk or a danger to the community; 17 -the immigration judge shall consider whether alternatives to detention are appropriate 18 and, if a bond is considered, the immigration judge shall consider Petitioner’s 19 ability to pay; and 20 -if Petitioner believes that Respondents or the immigration judge violated this order and 21 the writ, Petitioner can apply to this Court for appropriate sanctions. 22 CONCLUSION 23 For the foregoing reasons, Petitioner Bakhtiar Sahak’s Petition for Writ of 24 Habeas Corpus and Order to Show Cause Within Three Days; Complaint for Declaratory 25 and Injunctive Relief, filed April 10, 2026, is GRANTED IN PART AND DENIED IN 26 27 28 4 Singh was abrogated on other grounds by Jennings v. Rodriguez, 583 U.S. 281 1 ||PART. The Petition is GRANTED insofar as Respondents are ORDERED to provide 2 || Petitioner with an individualized bond hearing consistent with the terms of this order 3 || within seven days of the filing of this order. The Petition is DENIED WITHOUT 4 || PREJUDICE as to Petitioner’s request for immediate release from custody. 5 The parties are DIRECTED to file a joint status report informing this Court 6 || of the outcome of the bond hearing within fourteen days of the filing of this order. 7 IT IS SO ORDERED. 8 DATED AT HONOLULU, HAWAITL, June 4, 2026. 9 poet, gS %, 10 oy) /s! Leslie E. Kobayashi 1] Leslie E. Kobayashi 12 ag Senior U.S. District Judge 3 eae 14 15 16 17 18 19 20 21 22 23 BAKHTIAR SAHAK VS. CHRISTOPHER J. LAROSE, ETC., ET AL; CV 26- 24 ||02292 LEK-SBC; ORDER GRANTING IN PART AND DENYING IN PART 5 PETITION FOR WRIT OF HABEAS CORPUS AND ORDER TO SHOW CAUSE WITHIN THREE DAYS; COMPLAINT FOR DECLARATORY AND 26 || INJUNCTIVE RELIEF 27 28