Diolinda Pintado-Granda v. Patrick Divver, et al.
- Proceeding
- district
- Area
- civil
- Panel
- Cathy Ann Bencivengo (author)
Analysis
Petitioner Diolinda Pintado-Granda, an immigration detainee, filed a petition for a writ of habeas corpus arguing that her detention was unlawful under 8 C.F.R. §§ 241.4, 241.13, and Zadvydas v. Davis. The Court denied the petition without prejudice, finding it premature because the petitioner had not yet been detained for the six-month presumptively reasonable period following her final order of removal.
| What the court decided | The model |
|---|---|
Petition for a writ of habeas corpus denied without prejudice“Accordingly, the Court DENIES Petitioner’s application for a writ of habeas corpus WITHOUT PREJUDICE.” | agree with court The court correctly applied the holding in Zadvydas v. Davis, which establishes a six-month presumptively reasonable period for post-removal-order detention. The order recites that the removal order became final on May 19, 2026, and the petition was filed and decided in July 2026, meaning the petitioner had been detained for less than two months. Because the petitioner failed to meet the initial burden of showing detention exceeding the presumptively reasonable period, the claim was unripe. The denial without prejudice allows the petitioner to refile once the statutory period expires, which is the standard procedural remedy for premature habeas petitions in this context. |
The order itself: sound — The order is procedurally and substantively sound. It correctly identifies the relevant legal standard (Zadvydas) and applies it to the specific facts recited in the order (final order date vs. current date). The court properly places the burden on the petitioner to show the presumptively reasonable period has passed. The denial without prejudice is the appropriate disposition for a premature petition, preserving the petitioner's right to challenge detention once the statutory period expires. No significant arguments or authorities were omitted that would change the outcome.
Opinion
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DIOLINDA PINTADO-GRANDA, Case No.: 3:26-cv-3291-CAB-AHG 12 Petitioner, ORDER DENYING PETITION FOR 13 v. A WRIT OF HABEAS CORPUS 14 PATRICK DIVVER, et al., [Doc. No. 5] 15 Respondents. 16 17 Before the Court is Petitioner Diolinda Pintado-Granda’s petition for a writ of habeas 18 corpus. [Doc. No. 1 (“Petition”).] For the following reasons, the Petition is DENIED 19 WITHOUT PREJUDICE. 20 I. BACKGROUND 21 Petitioner is a native of Peru who entered the United States without inspection and 22 was detained by immigration authorities on October 24, 2025. [Petition at 2; Doc. No. 4 23 at 2.] On April 17, 2026, an immigration judge (“IJ”) ordered Petitioner removed from the 24 United States but granted her deferral of removal to Peru under the Convention Against 25 Torture. [Petition at 5; Doc. No. 4 at 2.] Both parties reserved appeal of the IJ’s order by 26 May 18, 2026. [Doc. No. 4 at 2.] Neither party appealed so the removal order became 27 final on May 19, 2026. [Petition at 9; Doc. No. 4 at 3.] 28 1 Respondents have not identified a country other than Peru (“a third country”) to 2 effectuate Petitioner’s removal from the United States. [Petition at 5.] 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. 6 2). “[T]he essence of habeas corpus is an attack by a person in custody upon the legality 7 of that 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). Under 28 U.S.C. § 2241, a 9 district court has the authority to grant a writ of habeas corpus when the petitioner “is in 10 custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. 11 § 2241(c)(3). The petitioner bears the burden of demonstrating that he is in illegal custody. 12 See Martinez v. Noem, No. 25-cv-2740-BJC-BJW, 2025 WL 3171738, at *2 (S.D. Cal. 13 Nov. 13, 2025). 14 III. DISCUSSION 15 Petitioner asserts that her detention is unlawful under 8 C.F.R. §§ 241.4, 241.13, and 16 the Supreme Court’s decision in Zadvydas v. Davis, 533 U.S. 678 (2001). [Petition at 9– 17 11.] Respondents argue that Petitioner remains in the 90-day removal period under 18 8 U.S.C. § 1231(a)(1) and (2), which not only allows but requires detention, and that even 19 after this period, Zadvydas permits an additional 90-day presumptively reasonable 20 detention period. [Doc. No. 4 at 2–4.] Thus, the Petition is premature at least until 21 November 19, 2026, when Zadvydas’ six-month presumptively reasonable removal 22 window will pass. The Court agrees with Respondents. 23 Petitioner has the initial burden to show that she has experienced post-removal order 24 detention for more than Zadvydas’ six-month presumptively reasonable period of 25 detention. 533 U.S. at 701. Given that Petitioner has been in detention for less than two 26 months following her final order of removal, Petitioner does not meet her burden. See 27 Khalilova v. Smith, No. 25-cv-2140 JLS-DDL, 2025 WL 3089522, at *3 (S.D. Cal. Nov. 28 1 2025) (finding habeas petition was unripe for review where Zadvydas six-month period 2 || had not expired). 3 Similarly, Petitioner’s regulatory claims are premature. Both 8 C.F.R. § 241.4(h)(1) 4 § 241.13 govern custody reviews and other determinations when detention has 5 || exceeded the removal period. Here, that has not yet occurred. 6 CONCLUSION 7 Accordingly, the Court DENIES Petitioner’s application for a writ of habeas corpus 8 || WITHOUT PREJUDICE. If Petitioner remains in detention after the six-month 9 || presumptively reasonable window has passed, Petitioner may file an amended petition. 10 Itis SO ORDERED. 11 ||Dated: July 6, 2026 (GB 12 Hon. Cathy Ann Bencivengo 13 United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28