Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 NAHOM HAFTOM BERHE, Case No.: 3:26-cv-2828-JES-VET 12 Petitioner, ORDER: 13 v. (1) DENYING RESPONDENTS’ 14 MARKWAYNE MULLIN, Secretary of REQUEST TO RECONSIDER; the Department of Homeland Security; 15 TODD BLANCHE, Acting Attorney (2) GRANTING MOTION TO 16 General; TODD M. LYONS, Acting ENFORCE ORDER ENJOINING Director, Immigration and Customs 17 PETITIONER'S THIRD COUNTRY Enforcement; JESUS ROCHA, Acting REMOVAL; and 18 Field Office Director, San Diego Field Office; JEREMY CASEY, Warden at 19 (3) GRANTING PETITION FOR Imperial Regional Detention Center, WRIT OF HABEAS CORPUS 20 Respondents. 21 [ECF Nos. 1, 13, 14]

23 24 Before the Court is Petitioner Nahom Haftom Berhe’s (1) Petition for Writ of Habeas 25 Corpus, pursuant to 28 U.S.C. § 2241 (“Petition”), and (2) Motion to Enforce Order 26 Enjoining Petitioner's Removal & Immediate Release (“Motion”). ECF Nos. 1 (“Pet.”), 14 27 (“Mot.”). Pursuant to the Court’s Order (ECF No. 12), Respondents (the “Government”) 28 filed a Status Report and supplemental declaration. ECF No. 13. The Court has reviewed 1 the Status Report, the Second Declaration of Vu Cam, and the Motion. ECF No. 13; ECF 2 No. 13-1, (“Cam Decl.”); Mot. For the reasons set forth below, the Court GRANTS the 3 Motion and the Petition. 4 I. LEGAL STANDARD 5 A writ of habeas corpus is “available to every individual detained within the United 6 States.” Hamdi v. Rumsfeld, 542 U.S. 507, 525 (2004) (citing U.S. Const., Art I, § 9, cl. 2). 7 “The essence of habeas corpus is an attack by a person in custody upon the legality of that 8 custody, and . . . the traditional function of the writ is to secure release from illegal 9 custody.” Preiser v. Rodriguez, 411 U.S. 475, 484 (1973). A court may grant a writ of 10 habeas corpus to a petitioner who demonstrates to be in custody in violation of the 11 Constitution or federal law. 28 U.S.C. § 2241(c)(3). Traditionally, “the writ of habeas 12 corpus has served as a means of reviewing the legality of Executive detention, and it is in 13 that context that its protections have been strongest.” I.N.S. v. St. Cyr, 533 U.S. 289, 301 14 (2001). Accordingly, challenges to immigration-related detention are within the purview 15 of a district court's habeas jurisdiction. Zadvydas v. Davis, 533 U.S. 678, 687 (2001); see 16 also Demore v. Kim, 538 U.S. 510, 517 (2003). 17 II. DISCUSSION 18 A. Respondents’ Status Report 19 In the Status Report, Respondents inform the Court that Immigration and Customs 20 Enforcement (“ICE”) no longer intends to remove Petitioner to Cameroon. ECF No. 13 at 21 1. Instead, it intends to remove Petitioner to the Central African Republic (“CAR”) on or 22 about July 30, 2026. Cam Decl. ¶ 8. Respondents represent that on April 4, 2026, the CAR 23 provided diplomatic assurances that noncitizens removed to the CAR, pursuant to a 24 bilateral arrangement with the United States, will not be subjected to persecution or torture, 25 nor in any country to which the CAR may further transfer them. Id. ¶ 5. 26 On May 4, 2026, the Department of State determined those assurances to be credible 27 and reliable. Id. The CAR has accepted Petitioner for removal pursuant to that arrangement, 28 and his placement on a charter flight manifest serves as his travel document. Id. ¶¶ 6–7. 1 ICE further represents that it will follow the March 30, 2025, DHS memorandum (“March 2 30 Memo”) to effectuate Petitioner’s removal. Id. ¶ 9. 3 Respondents acknowledge that this Court previously found the March 30 Memo 4 unlawful and ordered due process procedures before any third-country removal. ECF No. 5 13 at 2; see also ECF No. 12. Respondents nonetheless ask the Court to reconsider that 6 order, arguing that Petitioner’s claims are subsumed within the class action in D.V.D. v. 7 Department of Homeland Security, 778 F. Supp. 3d 335 (D. Mass. 2025), and that the First 8 Circuit’s stay of that injunction pending appeal, D.V.D. v. DHS, No. 26-1212 (1st Cir. Mar. 9 16, 2026), forecloses independent individual relief here. ECF No. 13 at 2–3. 10 B. Respondents’ Reconsideration Request Is Denied and Remain Enjoined 11 Reconsideration is warranted only upon a showing of “newly discovered evidence 12 or intervening change in the controlling law,” or to correct “clear error or prevent manifest 13 injustice.” Sch. Dist. No. 1J, Multnomah Cty. v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 14 1993). Respondents have presented neither. 15 Respondents’ sole basis for reconsideration is that the First Circuit has stayed the 16 class-wide injunction in D.V.D. pending appeal. ECF No. 13 at 2–3. That stay is not 17 controlling authority in this circuit and provides no basis to revisit this Court’s independent 18 constitutional analysis. Moreover, Respondents have presented no new law or facts bearing 19 on the constitutional analysis this Court already conducted. The legal landscape governing 20 due process in third-country removal proceedings has not changed: courts in this district 21 and throughout the Ninth Circuit continue to hold, as they did when this Court issued its 22 prior order, that the March 30 Memo’s diplomatic-assurances exception violates due 23 process. See, e.g., Giebashvili v. Noem, No. 25-cv-3432-BJC-VET, 2026 WL 114422, at 24 *3–4 (S.D. Cal. Jan. 15, 2026); Lapshin v. Bondi, No. C25-2245-KKE, 2026 WL 71407, 25 at *5 (W.D. Wash. Jan. 9, 2026). The mere substitution of the CAR for Cameroon as the 26 proposed country of removal does not alter the constitutional analysis. 27 // 28 // 1 The Court’s prior Order accordingly stands. Respondents remain enjoined from 2 removing Petitioner to the CAR—or any other third country—without first complying 3 with the due process procedures set forth therein. 4 C. Respondents Have Failed to Rebut Petitioner’s Zadvydas Showing 5 As this Court previously found, Petitioner has demonstrated good reason to believe 6 there is no significant likelihood of his removal in the reasonably foreseeable future. ECF 7 No. 12. The burden, accordingly, shifted to the Government to respond with evidence 8 sufficient to rebut that showing. Zadvydas v. Davis, 533 U.S. 678, 701 (2001). 9 Respondents have not met that burden. The Status Report discloses that ICE intends 10 to remove Petitioner to the CAR on or about July 30, 2026, using the same March 30 Memo 11 procedures this Court has already found unlawful. ECF No. 13-1, Cam Decl. ¶¶ 8–9. 12 Because any removal to the CAR, under those procedures is enjoined, it cannot constitute 13 a “significant likelihood of removal” for Zadvydas purposes. 533 U.S. at 701. A removal 14 that cannot lawfully be effectuated does not demonstrate a significant likelihood of removal 15 in the reasonably foreseeable future. Cf. Id. at 701–02. 16 Critically, Respondents acknowledge this inevitable conclusion as well. The Status 17 Report expressly states that, to the extent the Court is not inclined to reconsider its prior 18 Order, “the government acknowledges that Respondents are unable to demonstrate a 19 significant likelihood of removing Petitioner to a third country in the reasonably 20 foreseeable future.” ECF No. 13 at 3. That concession is dispositive and, therefore, entitles 21 Petitioner to immediate release. 22 As the Court has declined to reverse its prior Order, Respondents—admittedly—fail 23 to demonstrate a significant likelihood of Petitioner’s lawful removal. Id. The Court, 24 accordingly, finds that Petitioner’s continued detention is no longer authorized by statute. 25 Zadvydas, 533 U.S. at 699–700. 26 // 27 // 28 // 1 III. CONCLUSION 2 For the reasons stated above, the Court ORDERS the following: 3 (1) The Court GRANTS Petitioner’s Motion to Enforce the Court’s Order 4 Enjoining Respondents from Removing Petitioner to a Third Country 5 absent due process. See ECF No. 12. For the sake of clarity, the Court 6 restates its Order. Respondents are ENJOINED AND RESTRAINED 7 from removing Petitioner to the Central African Republic, or any other 8 third country, without first complying with the following procedures: 9 a. Respondents must provide written notice to Petitioner and 10 Petitioner’s counsel, in a language Petitioner understands, 11 identifying the intended country of removal; 12 b. Petitioner must be afforded a minimum of ten (10) days to raise 13 a fear-based claim for protection under the Convention Against 14 Torture prior to removal; 15 c. If Petitioner demonstrates a reasonable fear of removal to the 16 designated country, Respondents must move to reopen 17 Petitioner’s immigration proceedings; and 18 d. If Petitioner is not found to have demonstrated a reasonable fear 19 of removal to the designated country, Respondents must provide 20 a meaningful opportunity, and a minimum of fifteen (15) days, 21 for Petitioner to seek reopening of his immigration proceedings; 22 (2) The Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 is 23 GRANTED; 24 (3) Respondents are ORDERED to IMMEDIATELY release Petitioner 25 from custody, subject to any preexisting conditions that were imposed 26 prior to his current detention; 27 (4) Respondents are ENJOINED AND RESTRAINED from re-arresting 28 or re-detaining Petitioner under 8 U.S.C. § 1231(a)(6) unless and until 1 Respondents obtain a lawful travel document authorizing Petitioner’s 2 removal and demonstrate compliance with all applicable constitutional 3 and statutory requirements. 4 (5) Respondents are ORDERED to file a Status Report on or before July 5 31, 2026, confirming that Petitioner has been released; and 6 (6) The Clerk of Court is DIRECTED to CLOSE this case. 7 IT IS SO ORDERED. 8 || Dated: July 29, 2026 10 Honorable James E. Sunmons Jr. 11 United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6B