Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JOSE ANGEL GIRON RODAS, Case No.: 26-CV-3535 JAO (JAC)

12 Petitioner, ORDER GRANTING IN PART 13 v. PETITION FOR WRIT OF HABEAS CORPUS 14 CHRISTOPHER LAROSE, Warden Otay Mesa Detention Center, et al., 15 (ECF No. 1) Respondents. 16 17 18 Before the Court is Jose Angel Giron Rodas’ (“Petitioner”) Petition for a Writ of 19 Habeas Corpus pursuant to 28 U.S.C. § 2241 (ECF No. 1). Also before the Court is 20 Respondents Christopher LaRose’s (Warden of Otay Mesa Detention Center), 21 Markwayne Mullin’s (Secretary of the Department of Homeland Security), Todd 22 Blanche’s (Acting Attorney General), Todd M. Lyon’s (Acting Director, Immigration 23 and Customs Enforcement (“ICE”)), Patrick Divver’s (Field Office Director of San Diego 24 Office of Detention and Removal), and Daren M. Margolin’s (collectively, 25 “Respondents”) Return to Petition for Writ of Habeas Corpus (ECF No. 6), and 26 Petitioner’s Traverse (ECF No. 7). 27 For the following reasons, the Court GRANTS IN PART the Petition for a Writ of 28 Habeas Corpus. 1 BACKGROUND 2 Petitioner is a Guatemalan national who entered the United States without 3 inspection in 2003. See ECF No. 1 ¶ 11. In the 23 years he has lived in the country he 4 married, worked in the construction and auto-care industries, and became a respected 5 leader of his church. See id. ¶ 12. On March 9, 2017, Petitioner was placed into removal 6 proceedings, where he applied for cancellation of removal and work authorization. See 7 id. ¶ 13. The Immigration Court eventually dismissed his removal case without prejudice 8 as a matter of prosecutorial discretion. See ECF No. 1-2 at 15. 9 Then, on May 23, 2024, Petitioner was arrested in Dulzura, California with an 10 undocumented friend in his car. See ECF No. 1 ¶ 14. He was charged by Information 11 with transporting an alien within the United States in violation of 8 U.S.C. § 12 1324(a)(1)(A)(ii). See ECF No. 6-2 at 6. He pleaded guilty to the charge and was 13 sentenced to time served (255 days) on January 10, 2025. See id. at 1–2. 14 Upon release, he was transferred to what he believes was Border Patrol custody 15 and detained in a tent until January 26, 2025, when ICE served him with a new Notice to 16 Appear and transported him to Otay Mesa Immigration Detention Center. See ECF No. 1 17 ¶¶ 15–16; ECF No. 6-3. In removal proceedings, Petitioner applied for asylum, 18 withholding of removal, and relief under the Convention Against Torture. See ECF No. 1 19 ¶ 21. He also twice asked Immigration Judges for a custody re-determination, but the 20 judges denied his requests without assessing whether he was a danger to the community 21 or flight risk because they concluded he was subject to mandatory detention under 8 22 U.S.C. § 1226(c) based on his conviction. See ECF No. 6-4. Petitioner thus has 23 remained in immigration detention without a bond hearing since January 2025, despite 24 serious health issues. See ECF No. 1 ¶¶ 3–4. 25 On March 23, 2026, an Immigration Judge denied Petitioner’s applications for 26 relief and ordered him removed to Guatemala or Mexico. See ECF No. 6-5. Petitioner 27 appealed the removal order to the Board of Immigration Appeals (BIA) and it remains 28 1 pending. See ECF No. 6-6; ECF No. 6 at 3. As such, Petitioner’s removal order is not 2 administratively final. See ECF No. 6 at 3. 3 LEGAL STANDARD 4 A federal prisoner challenging the execution of his or her sentence, rather than the 5 legality of the sentence itself, may file a petition for writ of habeas corpus in the district 6 of his confinement pursuant to 28 U.S.C. § 2241. See 28 U.S.C. § 2241(a). The sole 7 judicial body able to review challenges to final orders of deportation, exclusion, or 8 removal is the court of appeals. See generally 8 U.S.C. § 1252; see also Alvarez–Barajas 9 v. Gonzales, 418 F.3d 1050, 1052 (9th Cir. 2005) (citing REAL ID Act, Pub. L. No. 109- 10 13, 119 Stat. 231, § 106(a)). However, for claims challenging ancillary or collateral 11 issues arising independently from the removal process—for example, a claim of 12 indefinite detention—federal habeas corpus jurisdiction remains in the district court. 13 Nadarajah v. Gonzales, 443 F.3d 1069, 1076 (9th Cir. 2006), abrogated on other 14 grounds by Jennings v. Rodriguez, 583 U.S. 281 (2018); Alvarez v. Sessions, 338 F. 15 Supp. 3d 1042, 1048–49 (N.D. Cal. 2018) (citations omitted). 16 DISCUSSION 17 Petitioner does not dispute that he is detained pursuant to § 1226(c) but argues that 18 his prolonged detention without a bond hearing violates due process. See ECF No. 1 ¶¶ 19 64–86. He asserts that the Court should apply a multi-factor test to assess whether the 20 duration of his detention violates the Constitution. See id. ¶ 64 (citing six-factor test from 21 Banda v. McAleenan, 385 F. Supp. 3d 1099, 1106 (W.D. Wash. 2019)); see also ECF No. 22 8 ¶ 10 (acknowledging the three-factor test from Lopez v. Garland, 631 F. Supp. 3d 870 23 (E.D. Cal. 2022)). Respondents argue that (1) mandatory detention under § 1226(c) does 24 not violate due process under Demore v. Kim, 538 U.S. 510 (2003), and (2) even under a 25 factor-based test, Petitioner has not shown that his detention is unreasonable. 26 The Court applies the multi-factor test from Lopez and concludes that Petitioner is 27 entitled to a bond hearing. 28 /// 1 A. Due Process and Demore 2 In Demore, the Supreme Court rejected a facial constitutional challenge to the 3 mandatory detention provision of § 1226(c). See Demore, 538 U.S. at 531. The Court 4 explained that § 1226(c) “governs detention of deportable criminal aliens pending 5 their removal proceedings,” and that “[s]uch detention necessarily serves the purpose of 6 preventing deportable criminal aliens from fleeing prior to or during their removal 7 proceedings, thus increasing the chance that, if ordered removed, the aliens will be 8 successfully removed.” Id. at 527–28. Still, the Supreme Court alluded to concerns 9 about prolonged detention by noting that “not only does detention have a definite 10 termination point, in the majority of cases it lasts for less than the 90 days [the Supreme 11 Court] considered presumptively valid in Zadvydas.” Id. at 529. Justice Kennedy was 12 even more explicit in a brief concurrence: “[A] lawful permanent resident alien such as 13 respondent could be entitled to an individualized determination as to his risk of flight and 14 dangerousness if the continued detention became unreasonable or unjustified . . . Were 15 there to be an unreasonable delay by the INS in pursuing and completing deportation 16 proceedings, it could become necessary then to inquire whether the detention is not to 17 facilitate deportation, or to protect against risk of flight or dangerousness, but to 18 incarcerate for other reasons.” Id. at 532. 19 Based on this, Respondents argue “Demore teaches that detention of noncitizens 20 under § 1226(c) is constitutional so long as detention serves its purported immigration 21 purpose.” See ECF No. 6 at 5. They continue that “Petitioner has not demonstrated that 22 his detention has become ‘unreasonable or unjustified’” because there is no indication 23 that the government “has unreasonably delayed pursuing and completing his removal 24 proceedings, or that it is seeking to detain him for any reason other than seeking to 25 protect the public and facilitate his removal.” See id. at 6. But Demore didn’t articulate 26 any standard by which to consider whether prolonged detention violates due process. 27 Rather, it simply held that mandatory detention without an initial bond hearing did not 28 violate due process. See Black v. Decker, 103 F.4th 133, 142 (2d Cir. 2024), cert. 1 granted sub nom Genalo v. Black, 2026 WL 1718025 (June 15, 2026). And Petitioner 2 does argue that his detention has become unreasonably lengthy. Accordingly, the Court 3 does not think that Demore answers the question of how to consider Petitioner’s claim 4 such that the Court looks elsewhere for guidance. 5 Similarly, neither the Ninth Circuit nor the Supreme Court has addressed whether 6 due process requires a bond hearing for noncitizens facing prolonged detention under 7 § 1226(c). See Maldonado-Romero v. Warden of Imperial Reg. Detention Facility, 2026 8 WL 1333758, at *3 (S.D. Cal. May 13, 2026). In fact, the Supreme Court just granted a 9 petition for writ of certiorari on the question. See Genalo v. Black, 2026 WL 1718025 10 (June 15, 2026). Nonetheless, at least the First, Second, and Third Circuits have 11 concluded that due process may eventually require a bond hearing once detention 12 becomes unreasonably prolonged. See Black v. Decker, 103 F.4th at 143–146; German 13 Santos v. Warden, 965 F.3d 203, 209–10 (3rd Cir. 2020); Reid v. Donelan, 17 F.4th 1, 7 14 (1st Cir. 2021). And the vast majority of courts in this district have found the same. See, 15 e.g., Sanzpierre v. Mullin, 2026 WL 1495203, at *2 (S.D. Cal. May 28, 2026); 16 Maldonado-Romero, 2026 WL 1333758, at *3; Blake v. Mullin, 2026 WL 913130, at *2 17 (S.D. Cal. Apr. 2, 2026). The Court joins those courts and concludes that prolonged 18 detention under § 1226(c) triggers due process concerns. Like those other courts, the 19 Court will consider various factors to determine whether Petitioner’s detention has 20 become unconstitutionally prolonged. 21 B. Prolonged Detention 22 As an initial matter, the parties dispute which multi-factor test the Court should 23 apply: Petitioner argues for the six-factor Banda analysis, while Respondents assert that 24 Lopez is more appropriate. See ECF No. 1 ¶ 64; ECF No. 6 at 8–9. The Court agrees 25 with the government on the matter. 26 The Banda test considers: (1) the total length of detention to date; (2) the likely 27 duration of future detention; (3) the conditions of detention; (4) delays in the removal 28 proceedings caused by the detainee; (5) delays in the removal proceedings cause by the 1 government; and (6) the likelihood that the removal proceedings will result in a final 2 order of removal. Banda, 385 F. Supp. 3d at 1106. As Respondents point out, Lopez 3 weighs essentially the same factors except for the conditions of detention and the 4 likelihood of removal. See ECF No. 6 at 8–9 (citing Lopez, 631 F. Supp. 3d at 879). 5 They further argue that excluding consideration of the conditions of confinement is 6 appropriate as those types of claims are not cognizable in habeas. See id. at 9. Other 7 courts have noted that conditions of confinement and whether removal proceedings will 8 result in a final order of removal are not particularly relevant to determining whether the 9 duration of detention has become unreasonable. See, e.g., Sanchez-Rivera v. 10 Matuszewski, 2023 WL 139801, at *6 (citation omitted); Lopez, 631 F. Supp. 3d at 879. 11 The Court tends to agree with the reasoning of those courts and thus applies the three- 12 factor Lopez test. As such, the Court considers “the total length of detention to date, the 13 likely duration of future detention, and the delays in the removal proceedings caused by 14 the petitioner and the government.” Lopez, 631 F. Supp. 3d at 879. 15 The Court finds that Petitioner has established he is entitled to a bond hearing. 16 Petitioner’s length of detention, now nearly eighteen months, without a bond hearing 17 weighs in Petitioner’s favor. Courts have found detention of similar lengths without a 18 bond hearing supports a finding that detention has become unreasonable. See Sanzpierre, 19 2026 WL 1495203, at *2 (“Petitioner’s length of detention, over sixteen months, without 20 a bond hearing weighs in Petitioner's favor.”); see also Sanchez-Rivera, 2023 WL 21 139801, at *6 (“In general, as detention continues past a year, courts become extremely 22 wary of permitting continued custody absent a bond hearing.” (internal quotations, 23 alterations, and citations omitted)). Respondents recognize that courts are wary of 24 permitting detention without a bond hearing beyond the one-year mark, yet still argue 25 that this factor does not weigh in favor of Petitioner. Instead, they cite cases where the 26 petitioner was detained longer than Petitioner, but just because some folks have been 27 detained longer than Petitioner does not mean due process is satisfied. In fact, many 28 courts have found shorter periods of detention to be unconstitutional. See, e.g., 1 Maldonado-Romero, 2026 WL 1333758, at *3 (seven months); see also Abdul Kadir v. 2 Larose, 2025 WL 2932654, at *5 (S.D. Cal. Oct. 15, 2025) (“Courts have found detention 3 over seven months without a bond hearing weighs toward a finding that it is 4 unreasonable.”). The length of detention therefore favors Petitioner. 5 As to the likely duration of future detention, Petitioner has appealed to the BIA 6 and, if not granted relief, will appeal that decision, meaning “Petitioner may be subject to 7 detention for many more months if not years before final adjudication.” ECF No. 1 ¶ 70. 8 Courts have concluded that the lengthy BIA appeal process, which could take years, 9 typically tilts this factor in favor of the petitioner. See, e.g., Banda, 385 F. Supp. 3d at 10 1119 (noting that process may take two years); Lopez, 631 F. Supp. 3d at 881 (“Although 11 the Court recognizes, as argued by Respondents, that future events are difficult to predict, 12 the Court nevertheless finds that Petitioner’s administrative appeals and possible judicial 13 review by the Ninth Circuit will be sufficiently lengthy such that this factor weighs in 14 favor of Petitioner.” (Citation omitted)). Respondents argue that Petitioner cannot “rely 15 on the delays attendant to his decisions to establish a due process violation,” but 16 Petitioner’s “BIA appeal . . . [is a] perfectly legitimate proceeding[] he is legally entitled 17 to pursue,” which “does not redound to [Petitioner’s] discredit.” Masood v. Barr, 2020 18 WL 95633, at *3 (N.D. Cal. Jan. 8, 2020). The Court concludes this factor weighs in 19 favor of Petitioner. 20 The delay in removal proceedings factor is neutral since the record does not 21 demonstrate unreasonable delay by either side. Respondents argue that this factor favors 22 the government because Petitioner’s request for a continuance of his Individual Hearing 23 delayed his removal proceedings by four months. See ECF No. 6 at 9–10 (citing ECF 24 No. 1 at 7). But Petitioner responds that the decision to continue the Individual Hearing 25 by that length of time was made by the Immigration Court and that the request for a 26 continuance was a good faith attempt to litigate his case. See ECF No. 8 ¶¶ 25–26. 27 Further, even if the Court excluded that four-month period, Petitioner’s detention has still 28 extended beyond a year. Balancing the discussed factors, the Court concludes that 1 || Petitioner’s detention has become unreasonably prolonged, and therefore, Petitioner is 2 || entitled to a bond hearing. 3 CONCLUSION 4 Based on the foregoing, the Court GRANTS IN PART the Petition for a Writ of 5 || Habeas Corpus (ECF No. 1), and ORDERS Respondents to provide Petitioner with an 6 || individualized bond hearing within fourteen (14) days before a neutral immigration judge 7 which the government bears the burden of establishing by clear and convincing 8 || evidence that Petitioner is a danger to the community or a flight risk if released. If no 9 || hearing occurs within fourteen days of this Order, Petitioner shall be released from 10 || Respondents’ custody. The Parties SHALL file a Joint Status Report by July 24, 2026, 11 ||informing the Court of the outcome of the hearing.! 12 IT IS SO ORDERED. 13 Dated: July 6, 2026 14 Jill A. Otake 18 >. a4 United States District Judge 19 <i, age 20 21 22 23 24 25 26 17 ' Petitioner requested attorney’s fees, related expenses, and costs pursuant to the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412. See ECF No. | at 31. Petitioner’s counsel may submit an appropriate 9g || EAJA fee application within 30 days of the issuance of this Order. See 28 U.S.C. § 2412(d)(1)(B).