Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 RASHAD ABBASZADE, Case No.: 3:26-cv-1750-CAB-VET 12 Petitioner, ORDER PARTIALLY GRANTING A 13 v. WRIT OF HABEAS CORPUS 14 CHRISTOPHER LAROSE, et al., 15 Respondents. 16 17 Before the Court is Petitioner Rashad Abbaszade’s amended petition for a writ of 18 habeas corpus pursuant to 28 U.S.C. § 2241. [Doc. No. 5 (“Petition”).] Petitioner claims 19 his 12-month detention by immigration authorities is unconstitutional. [Id. at 2.] He seeks 20 a bond hearing or immediate release. [Id.] For the reasons below, the Court PARTIALLY 21 GRANTS the request for a writ of habeas corpus and ORDERS that Petitioner receive an 22 individualized bond hearing. 23 I. BACKGROUND 24 Petitioner is an Azerbaijani citizen who attempted to enter the United States without 25 valid entry documents at the Otay Mesa Port of Entry on July 8, 2025. [Doc. No. 8 at 2.] 26 He was determined to be an inadmissible under 8 U.S.C. § 1182(a)(6)(A)(i), placed into 27 expedited removal proceedings, and taken into Immigration and Customs Enforcement 28 (“ICE”) custody under 8 U.S.C. § 1225(b)(1). [Id.] An asylum officer interviewed 1 Petitioner on September 12, 2025 and made a positive credible fear finding. [Id.] Petitioner 2 has since applied for relief from removal. He has no final order of removal and has 3 remained in custody since then. 4 II. LEGAL STANDARD 5 A writ of habeas corpus challenges the legality of a petitioner’s custody and seeks 6 to secure release from that illegal custody. Under 28 U.S.C. § 2241, a district court may 7 grant a writ of habeas corpus when the petitioner “is in custody in violation of the 8 Constitution or laws or treaties of the United States[.]” The petitioner bears the burden of 9 demonstrating that he is in illegal custody. See Martinez v. Noem, No. 25-CV-2740-BJC- 10 BJW, 2025 WL 3171738, at *2 (S.D. Cal. Nov. 13, 2025). 11 III. DISCUSSION 12 Petitioner argues that his twelve-month detention without a bond hearing is 13 unconstitutional. [Petition at 2.] Respondents counter that the relevant statutory language 14 of § 1225(b)(1) and Supreme Court precedent require Petitioner’s detention until the 15 resolution of his removal proceedings. [Doc. No. 8 at 3–10.] The Court has previously 16 discussed that while Supreme Court precedent does establish that the statutory language 17 of § 1225(b) mandates detention, the Supreme Court did not decide the constitutional 18 question of whether indefinite detention is permitted. See L.R.G. v. LaRose, 3:25-CV- 19 3490-CAB-MSB, Doc. No. 13 at 5–6 (S.D. Cal. Jan. 16, 2026). 20 As to the constitutional question, like most of the district courts that have confronted 21 this question, this Court held in L.R.G. that a due process violation may occur when § 22 1225(b) results in practically indefinite civil detention. 3:25-CV-3490-CAB-MSB, Doc. 23 No. 13, at *6; see Kydyrali v. Wolf, 499 F. Supp. 3d 768, 772 (S.D. Cal. 2020) (“[T]he 24 Court joins the majority of courts across the country in concluding that an unreasonably 25 prolonged detention under 8 U.S.C. § 1225(b) without an individualized bond hearing 26 violates due process.”). Respondents’ position has also been questioned by the Ninth 27 Circuit: 28 We have grave doubts that any statute that allows for arbitrary prolonged 1 detention without any process is constitutional or that those who founded our democracy precisely to protect against the government’s arbitrary deprivation 2 of liberty would have thought so. Arbitrary civil detention is not a feature of 3 our American government. “[L]iberty is the norm, and detention prior to trial or without trial is the carefully limited exception.” Civil detention violates 4 due process outside of “certain special and narrow nonpunitive 5 circumstances.” 6 Rodriguez v. Marin, 909 F.3d 252, 256–57 (9th Cir. 2018) (internal citation omitted) 7 (alteration in original). 8 Though there is no brightline test for a violation, this Court and many others have 9 used the Banda test which considers the following six factors to determine when detention 10 under § 1225(b) violates due process: (1) the total length of detention to date, which is the 11 most important factor; (2) the likely duration of future detention; (3) the conditions of 12 detention; (4) delays in removal proceedings caused by the detainee; (5) delays in removal 13 proceedings caused by the government; and (6) the likelihood that the removal proceedings 14 will result in a final order of removal. Banda v. McAleenan, 385 F. Supp. 3d 1099, 1106 15 (W.D. Wash. 2019). 16 The first factor weighs in Petitioner’s favor given that he has been detained for over 17 a year. See Sibomana v. LaRose, No. 22-CV-933-LL-NLS, 2023 WL 3028093, at *4 (S.D. 18 Cal. Apr. 20, 2023) (finding that courts are typically wary of continued custody without a 19 bond hearing when detention extends beyond one year). Regarding the second factor, 20 which consists of the “anticipated duration of all removal proceedings—including 21 administrative and judicial appeals[,]” Petitioner’s final merits hearing is not until July 31, 22 2026, and further detention beyond it, regardless of its outcome, is likely. [Doc. No. 11 at 23 2.] Accordingly, the second factor favors Petitioner. [Id.] As to the third Banda factor, 24 Petitioner’s confinement is similar to penal confinement because, as the Court explained 25 with respect to the petitioner in L.R.G., who was also detained at Otay Mesa Detention 26 Center, Petitioner is detained “in a secure facility, guarded by armed personnel, and has 27 restricted access to outdoor space, activities, and communication.” No. 3:25-CV-3490- 28 1 ||} CAB-MSB, Doc. No. 13, at *8 (S.D. Cal. January 16, 2026). Thus, the third factor favors 2 || Petitioner. 3 As to the fourth and fifth factors, both parties have caused delays. The Court finds, 4 ||and Respondents concede, that these two factors are effectively neutral. [Doc. No. 8 at 5 ||10.] Finally, the Court finds the sixth factor neutral as it is unclear what the result of 6 || Petitioner’s removal proceedings will be. 7 In sum, factors one (the most important), two, and three weigh for Petitioner, while 8 || factors four, five, and six are neutral. The Court thus concludes that Petitioner’s continued 9 ||mandatory detention under § 1225(b)(1) without a bond hearing violates his right to due 10 ||process. Petitioner is entitled to a prompt and individualized bond hearing before an 11 |/immigration judge. 12 IV. CONCLUSION 13 Based on the foregoing, the Court finds that Petitioner’s prolonged detention without 14 bond hearing violates the Due Process Clause of the Fifth Amendment. The Court 15 || therefore PARTIALLY GRANTS the writ of habeas corpus and ORDERS Respondents 16 provide Petitioner an individualized bond hearing by July 31, 2026, unless Petitioner 17 ||requests a continuance. If requested by Petitioner, Respondents shall assist Petitioner in 18 || obtaining an audio recording of the bond hearing. 19 The Clerk of the Court shall close the case. 20 Itis SO ORDERED. 21 Dated: July 17, 2026 (if 22 Hon. Cathy Ann Bencivengo 23 United States District Judge 24 25 26 27 28