Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 CHANGHUA CHEN, Case No.: 26-cv-2158-BJC-VET 12 Petitioner, ORDER GRANTING PETITION FOR WRIT OF HABEAS CORPUS 13 v. 14 MARKWAYNE MULLIN, Department of Homeland Security, et. al., 15 Respondents. 16 17 18 19 Petitioner Changhua Chen, a citizen of China, entered the United States on May 3, 20 2025. ECF No. 1 ¶¶ 1, 33; ECF No. 11 at 2.1 On the same day, Border Patrol took 21 Petitioner into custody, and the Department of Homeland Security (“DHS”) served 22 Petitioner with a Notice and Order of Expedited Removal. ECF No. 1 ¶ 2; ECF No. 11-2. 23 After receiving a positive credible fear determination, DHS issued a Notice to Appear, 24 which initiated removal proceedings. ECF Nos. 11-3, 11-4. Petitioner applied for asylum 25 and withholding of removal. ECF No. 1 ¶ 2. Petitioner’s individual merits hearing was 26 27 1 Page numbers refer to those generated by the Court’s CM/ECF system. 28 1 scheduled for May 5, 2026, but it was not held and has not been rescheduled. ECF No. 16. 2 On April 6, 2026, Petitioner, proceeding pro se, filed a Petition for Writ of Habeas 3 Corpus pursuant to 28 U.S.C. § 2241. ECF No. 1. On April 16, 2026, this Court 4 conditionally appointed Federal Defenders of San Diego, Inc. as counsel, set a briefing 5 schedule on the petition, and issued a limited stay to preserve the status quo. ECF No. 6. 6 Respondents filed a return on May 4, 2026, and Petitioner filed a traverse on May 12, 2026. 7 ECF Nos. 8, 9. 8 LEGAL STANDARD 9 Courts may grant habeas corpus relief to those “in custody in violation of the 10 Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241; see also Hamdi v. 11 Rumsfeld, 542 U.S. 507, 525, 124 S. Ct. 2633, 2644, 159 L. Ed. 2d 578 (2004) (“[T]he writ 12 of habeas corpus remains available to every individual detained within the United States.”). 13 Courts are authorized to grant writs pursuant to § 2241 to noncitizens in custody in 14 violation of the Constitution or laws or treaties of the United States. Magana-Pizano v. 15 I.N.S., 200 F.3d 603, 609 (9th Cir. 1999). 16 DISCUSSION 17 Petitioner argues his detention without an individualized custody determination 18 violates his right to due process because his detention has become prolonged. Respondents 19 argue Petitioner’s claim is jurisdictionally barred, he is lawfully detained, and his detention 20 is not unconstitutionally prolonged. 21 I. Jurisdiction 22 Respondents contend Petitioner’s claims arise from DHS’s decision to commence 23 removal proceedings and, therefore, his claims are jurisdictionally barred pursuant § 24 1252(g). Congress explicitly divested the court of jurisdiction over claims “arising from 25 the decision or action by the Attorney General to commence proceedings, adjudicate cases, 26 or execute removal orders.” 8 U.S.C. § 1252(g). The provision is read narrowly and does 27 not apply to every decision or action that may be a part of the deportation process, only 28 those involving the Attorney General’s decision to commence proceedings, adjudicate 1 cases, or execute removal orders. Ibarra-Perez v. United States, No. 24-631, 2025 WL 2 2461663, at *6 (9th Cir. Aug. 27, 2025) (citing Reno v. American-Arab Anti- 3 Discrimination Committee, 525 U.S. 471 (1999)). Challenges to unconstitutional practices 4 and policies that do not arise from the Attorney General’s decision to commence 5 proceedings, adjudicate cases or execute removal orders, but are merely collateral to those, 6 are not subject to § 1252(g). Walters v. Reno, 145 F.3d 1032, 1052 (9th Cir. 1998) (citing 7 McNary v. Haitian Refugee Ctr., Inc., 498 U.S. 479, 492 (1991)). 8 Petitioner’s claim, which challenges his detention as unconstitutionally prolonged, 9 is merely collateral to, but does not arise from the decision to commence and adjudicate 10 proceedings. See Nguyen v. Fasano, 84 F. Supp. 2d 1099, 1104 (S.D. Cal. 2000) 11 (“Petitioners’ challenge to their indefinite detention is [ ] distinct from a petition that seeks 12 review of the bond determination itself.”); Alikhani v. Fasano, 70 F. Supp. 2d 1124, 1126 13 (S.D. Cal. 1999) (“[A] challenge to the constitutionality of confinement pending 14 deportation does not address any discretionary action by the Attorney General, and “does 15 not implicate the three categories of unreviewable decisions specified in § 1252(g).”); 16 Diaz-Zaldierna v. Fasano, 43 F. Supp. 2d 1114, 1117 (S.D. Cal. 1999) (“The propriety of 17 holding petitioner without any possibility of release on bail is distinct from a ‘decision or 18 action by the Attorney General to commence proceedings, adjudicate cases, or execute 19 removal orders.’”). Accordingly, § 1252(g) does not deprive this Court of jurisdiction to 20 hear Petitioner’s claims. 21 II. Merits of the Petition 22 Petitioner contends his detention has become unconstitutionally prolonged. 23 Respondents argue Petitioner is subject to mandatory detention under 8 U.S.C. 24 §1225(b)(1). Many district courts addressing habeas petitions asserting claims based upon 25 mandatory detention have determined that prolonged detention without a bond hearing 26 violates due process rights. See Gao v. LaRose, 805 F. Supp. 3d 1106, 1110 (S.D. Cal. 27 2025) (listing cases). Additionally, the Supreme Court and the Ninth Circuit have 28 recognized that indefinite prolonged detention of an alien raises due process concerns. 1 Zadvydas v. Davis, 533 U.S. 678, 690, (2001) (“A statute permitting indefinite detention 2 of an alien would raise a serious constitutional problem.”); Rodriguez v. Marin, 909 F.3d 3 252, 256 (9th Cir. 2018) (“We have grave doubts that any statute that allows for arbitrary 4 prolonged detention without any process is constitutional or that those who founded our 5 democracy precisely to protect against the government’s arbitrary deprivation of liberty 6 would have thought so.”). Accordingly, this Court finds prolonged detention without a 7 bond hearing raises due process concerns that are inextricably linked to the length of 8 incarceration. 9 Petitioner argues his detention is unconstitutionally prolonged pursuant to the factors 10 in Banda v. McAleenan, 385 F. Supp. 3d 1099, 1118 (W.D. Wash. 2019). Respondent 11 addresses the three-factor balancing test from Lopez v. Garland, 631 F. Supp. 3d 870 (E.D. 12 Cal. 2022), in support of their argument that Petitioner is lawfully detained. The Court 13 finds the multi-factor test from Banda, which includes the three factors from Lopez, is more 14 suitable to determine the possible constitutional implications of Petitioner’s ongoing 15 detention without process. The Banda test considers 16 the (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 proceedings caused by the 17 detainee; (5) delays in the removal proceedings caused by the government; and (6) 18 the likelihood that the removal proceedings will result in a final order of removal. 19 Id. at 1106. 20 To date, Petitioner has been in custody over a year. While not a bright line rule, 21 generally, courts “become extremely wary of permitting continued custody absent a bond 22 hearing” after a petitioner is detained past a year. Yagao v. Figueroa, No. 17-cv-2224- 23 AJB-MDD, 2019 WL 1429582 at *2 (S.D. Cal. Mar. 29, 2019) (quoting Muse v. Sessions, 24 No. 18-CV-0054 (PJS/LIB), 2018 WL 4466052, at *4 (D. Minn. Sept. 18, 2018)). As such, 25 this factor weighs in favor of finding Petitioner’s detention implicates due process 26 concerns. 27 The likely duration of future detention also weighs in Petitioner’s favor. Petitioner’s 28 1 individual meris hearing was vacated, and it has not yet been rescheduled. Additionally, 2 depending on the result, Petitioner will likely file an appeal with the BIA and the Ninth 3 || Circuit Court of Appeals. Next, Petitioner is detained at Otay Mesa Detention Center, 4 || where conditions “are not dissimilar to criminal confinement.” Gao, 805 F. Supp. 3d at 5 1111. As such, this factor weighs in Petitioner’s favor. Because neither party has caused 6 ||unreasonable delays, the delay factors are both neutral. Finally, the Court is without 7 || sufficient information to determine whether Petitioner’s proceedings will result in removal. 8 || As such, the final factor is neutral. On balance, the factors demonstrate Petitioner’s 9 || ongoing detention is unreasonable, such that due process requires a bond hearing. Banda, 10 F. Supp. 3d at 1118. 11 Accordingly, the petition is GRANTED. The government shall provide the 12 noncitizen with an individualized bond hearing under 8 U.S.C. § 1226(a) within fourteen 13 ||(14) days, unless the noncitizen requests a continuance. The government bears the burden 14 establishing by clear and convincing evidence that the noncitizen is a danger to the 15 |}community or a flight risk if released. The government shall make a complete record of 16 proceedings available to the noncitizen and counsel. The Clerk of Court shall close 17 || this matter. 18 IT IS SO ORDERED. 19 Dated: June 24, 2026 20 22 Honorable Benjamin J. Cheeks 23 United States District Judge 24 25 26 27 28