Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 THI THU HOAI TRAN, Case No.: 26-cv-3135-RSH-GC 12 Petitioner, ORDER GRANTING PETITION 13 v. 14 MARKWAYNE MULLIN, 15 Defendants. 16 17 18 On May 19, 2026, petitioner Thi Thu Hoai Tran filed through counsel a petition for 19 writ of habeas corpus pursuant to 28 U.S.C. § 2241 (the “Petition”). ECF No. 1. Petitioner 20 challenges her detention without a bond hearing, pending her immigration proceedings, as 21 unduly prolonged in violation of due process. ECF No. 1 at 7–15. The merits are fully 22 briefed. See ECF Nos. 4, 5. 23 I. STATEMENT OF FACTS 24 Petitioner, a citizen of Vietnam, was arrested at the San Ysidro Port of Entry on 25 August 26, 2025. ECF No. 4-1 at 3. An asylum officer subsequently interviewed Petitioner 26 and determined that she had a credible fear of persecution. Id. at 8. On September 20, 2025, 27 the Department of Homeland Security (“DHS”) issued Petitioner a Notice to Appear 28 charging her as removable. Id. at 8–17. On March 30, 2026, the immigration judge granted 1 Petitioner withholding of removal and deferral of removal under the Convention Against 2 Torture. Id. at 19. DHS appealed that decision on April 29, 2026. Id. at 24. 3 II. LEGAL STANDARD 4 Title 28 of the U.S. Code, Section 2241, provides that “[w]rits of habeas corpus may 5 be granted by the Supreme Court, any justice thereof, the district courts and any circuit 6 judge within their respective jurisdictions.” 28 U.S.C. § 2241(a). A detainee bears the 7 burden of demonstrating that “[sh]e is in custody in violation of the Constitution or laws 8 or treaties of the United States[.]” 28 U.S.C. § 2241(c)(3). 9 III. ANALYSIS 10 A. Jurisdiction 11 Respondents first challenge this Court’s jurisdiction to hear the Petition, relying on 12 8 U.S.C. § 1252(g). ECF No. 4 at 3–4. That provision states that, except as otherwise 13 provided in Section 1252, and notwithstanding any other provision of law including 8 14 U.S.C. § 2241, “no court shall have jurisdiction to hear any cause or claim by or on behalf 15 of any alien arising from the decision or action by the Attorney General to commence 16 proceedings, adjudicate cases, or execute removal orders against any alien under this 17 chapter.” 8 U.S.C. § 1252(g). Respondents argue that because Petitioner challenges her 18 detention during removal proceedings, that detention “arises from” DHS’s decision to 19 commence such proceedings. ECF No. 4 at 4. 20 The Supreme Court has interpreted the jurisdiction-stripping provision in Section 21 1252(g) narrowly, limiting it to “three discrete actions”: the “‘decision or action’ to 22 ‘commence proceedings, adjudicate cases, or execute removal orders.’” Reno v. Am.-Arab 23 Anti-Discrimination Comm., 525 U.S. 471, 482 (1999) (quoting 8 U.S.C. § 1252(g)). The 24 Supreme Court noted that “[t]here are of course many other decisions or actions that may 25 be part of the deportation process.” Id. In a later decision, the Court explained that it did 26 not interpret Section 1252(g) “to sweep in any claim that can technically be said to ‘arise 27 from’ the three listed actions of the Attorney General. Instead, [the Court] read the language 28 1 to refer to just those three specific actions themselves.” Jennings v. Rodriguez, 583 U.S. 2 281, 294 (2018). 3 Petitioner is seeking to review the legality of her detention, arguing that the length 4 of time she has been detained here is unlawful—rather than challenging the decision to 5 commence proceedings, the adjudication of her removal case, or an action to execute her 6 removal order. ECF No. 5 at 3. She does not seek to litigate in this Court questions of 7 whether he is removable or whether he is entitled to relief from removal. The relief she 8 seeks here is release from custody or a bond hearing at which her release may be considered 9 by an immigration judge. ECF No. 1 at 19–20. The Court concludes that Petitioner’s claim 10 is not barred by Section 1252(g). 11 B. Whether Petitioner Has a Due Process Claim 12 Respondents next argue that under the Supreme Court’s decision in Department of 13 Homeland Security v. Thuraissigiam, 591 U.S. 103 (2020), Petitioner has no due process 14 rights beyond those that Congress has provided, and that her due process claim therefore 15 fails. ECF No. 4 at 7–8. In Thuraissigiam, the Supreme Court rejected a habeas petitioner’s 16 argument that the due process clause conferred rights to challenge his expedited removal 17 beyond those established by Congress, stating that “an alien at the threshold of initial entry 18 cannot claim any greater rights under the Due Process Clause.” 591 U.S. at 107. The 19 petitioner in that case had “attempted to enter the country illegally and was apprehended 20 just 25 yards from the border.” Id. The Supreme Court determined that the “political 21 department of the government” had plenary authority to admit or exclude aliens seeking 22 initial entry, and thus “an alien in respondent’s position has only those rights regarding 23 admission that Congress has provided by statute.” Id. at 139–40. 24 Following the Supreme Court’s decision in Thuraissigiam, some district courts have 25 adopted Respondents’ reasoning to dismiss or deny habeas petitions in the context of 26 arriving aliens subject to mandatory detention under Section 1225(b). See Petgrave v. 27 Aleman, 529 F. Supp. 3d 665, 679 (S.D. Tex. 2021) (“As far as Petitioner is concerned, 28 whatever procedure Congress has authorized is sufficient due process.”); Gonzales Garcia 1 v. Rosen, 513 F. Supp. 3d 329, 536 (W.D.N.Y. 2021) (“Petitioner is on the threshold of 2 initial entry into the United States and . . . he accordingly is not entitled to procedural 3 protections beyond those provided by statute.”). 4 Most courts have ruled otherwise. See Abdul-Samed v. Warden of Golden State 5 Annex Det. Facility, No. 25-cv-98-SAB-HC, 2025 WL 2099343, at *6 (E.D. Cal. July 25, 6 2025) (“Although the Ninth Circuit has yet to take a position on whether due process 7 requires a bond hearing for noncitizens detained under 8 U.S.C. § 1225(b) . . . ‘essentially 8 all district courts that have considered the issue agree that prolonged mandatory detention 9 pending removal proceedings, without a bond hearing, will—at some point—violate the 10 right to due process.’”) (quoting Martinez v. Clark, No. C18-1669-RAJ-MAT, 2019 WL 11 5968089, at *6 (W.D. Wash. May 23, 2019)); Kydyrali v. Wolf, 499 F. Supp. 3d 768, 772 12 (S.D. Cal. 2020) (“[T]he Court joins the majority of courts across the country in concluding 13 that an unreasonably prolonged detention under 8 U.S.C. § 1225(b) without an 14 individualized bond hearing violates due process.”). This Court agrees with the majority 15 position that a person detained under Section 1225(b) may assert a due process challenge 16 to prolonged mandatory detention without a bond hearing. 17 This Court likewise agrees with those district courts that interpret Thuraissigiam as 18 circumscribing an arriving alien’s due process rights to admission, rather than limiting that 19 person’s ability to challenge detention. See A.L. v. Oddo, 761 F. Supp. 3d 822, 825 (W.D. 20 Pa. 2025) (“Nowhere in [Thuraissigiam] did the Supreme Court suggest that arriving aliens 21 being held under § 1225(b) may be held indefinitely and unreasonably with no due process 22 implications, nor that such aliens have no due process rights whatsoever.”); Hernandez v. 23 Wofford, No. 25-cv-986-KES-CDB (HC), 2025 WL 2420390, at *3 (E.D. Cal. Aug. 21, 24 2025) (“Although the Supreme Court has described Congress’s power over the ‘policies 25 and rules for exclusion of aliens’ as ‘plenary,’ and held that this court must generally ‘defer 26 to Executive and Legislative Branch decisionmaking in that area,’ it is well-established 27 that the Due Process Clause stands as a significant constraint on the manner in which the 28 political branches may exercise their plenary authority’—through detention or otherwise.”) 1 (citations omitted); Padilla v. ICE, 704 F. Supp. 3d 1163, 1172 (W.D. Wash. 2023) (“The 2 holding in Thuraissigiam does not foreclose Plaintiffs’ due process claims which seek to 3 vindicate a right to a bond hearing with certain procedural protections.”). 4 Respondents also argue that a much older case, Shaughnessy v. United States ex rel. 5 Mezei, 345 U.S. 206 (1953), establishes that arriving aliens subject to a mandatory 6 detention scheme, regardless of the length of their detention, never become entitled by the 7 due process clause to a bond hearing. ECF No. 4 at 6–7. This Court does not read Mezei to 8 establish such a proposition. Mezei involved a noncitizen who had been “permanently 9 excluded from the United States on security grounds but [who was] stranded in his 10 temporary haven on Ellis Island because other countries [would] not take him back.” 345 11 U.S. at 207. In 1950, the Attorney General determined, pursuant to emergency regulations 12 that based on certain confidential information, the noncitizens should be excluded from the 13 United States “for security reasons.” Id. at 208-10, 214–15. The Supreme Court rejected 14 the noncitizen’s constitutional challenge, citing “considerations” of “danger to the national 15 security”: 16 Thus we do not think that respondent’s continued exclusion deprives 17 him of any statutory or constitutional right. It is true that resident aliens temporarily detained pending expeditious consummation of deportation 18 proceedings may be released on bond by the Attorney General whose 19 discretion is subject to judicial review. By that procedure aliens uprooted from our midst may rejoin the community until the 20 Government effects their leave. An exclusion proceeding grounded on 21 danger to the national security, however, presents different considerations; neither the rationale nor the statutory authority for such 22 release exists. Ordinarily to admit an alien barred from entry on 23 security grounds nullifies the very purpose of the exclusion proceeding …. 24 25 Id. at 215–16 (citations omitted and emphasis added). 26 This Court agrees with those courts that distinguish the constitutional holding in 27 Mezei as addressing the national security considerations presented in that case. See 28 Rosales-Garcia v. Holland, 322 F.3d 386, 413–14 (6th Cir. 2003) (“[T]he Mezei Court 1 explicitly grounded its decision in the special circumstances of a national emergency and 2 the determination by the Attorney General that Mezei presented a threat to national 3 security.”); Lett v. Decker, 346 F. Supp. 3d 379, 386 (S.D.N.Y. 2018) (“Mezei may compel 4 the conclusion that arriving aliens already excluded on national security grounds are not 5 entitled to a bond hearing prior to their arranged deportation. However, Mezei does not 6 compel the categorical conclusion that all arriving aliens may be subject to prolonged 7 confinement without a bond hearing.”); Kydyrali, 499 F. Supp. 3d at 772 (finding Mezei 8 inapposite to the issue of whether prolonged detention without a bond hearing violates due 9 process); Rash v. LaRose, No. 26-cv-8-LL-DEB, 2026 WL 249324, at *4 (S.D. Cal. Jan. 10 30, 2026) (same). Here, in contrast, neither the Attorney General nor any other government 11 component has made a determination that Petitioner should be excluded on grounds of 12 national security; Petitioner is not seeking to circumvent such a determination by obtaining 13 release into the United States. Petitioner is merely seeking a bond hearing. 14 The Court concludes that it has authority to review whether Petitioner’s detention, 15 pursuant to a scheme of mandatory detention, has become unconstitutionally prolonged. 16 C. Whether Petitioner’s Detention is Prolonged in Violation of Due Process 17 In determining whether Petitioner’s detention has become prolonged, the Court 18 applies a six-factor balancing test used by some district courts. See Kydyrali, 499 F. Supp. 19 3d at 773–74; Banda v. McAleenan, 385 F. Supp. 3d 1099, 1106 (W.D. Wash. 2019). That 20 test considers: (1) the total length of detention to date; (2) the likely duration of future 21 detention; (3) conditions of detention; (4) delays in the removal proceedings caused by the 22 detainee; (5) delays in the removal proceedings caused by the government; and (6) the 23 likelihood that the removal proceedings will result in a final order of removal. See Kydyrali, 24 499 F. Supp. 3d at 773–74. Of these factors, the first—the length of detention—is the “most 25 important.” Id. at 774 (quoting Banda, 385 F. Supp. 3d at 1118). Petitioner invokes this 26 six-factor test in the Petition. ECF No. 1 at 12–15. 27 The Court agrees with Respondents that the length of Petitioner’s detention to date— 28 over 11 months—does not by itself, without more, establish prolonged detention in 1 violation of due process But neither does that length of detention serve as a safe harbor or 2 insulate Petitioner’s case from constitutional review. District courts have found 3 comparable periods of mandatory detention without a bond hearing unreasonably 4 prolonged. See Belov v. Warden, Otay Mesa Det. Ctr., No. 26-CV-1518-BTM-BLM, 2026 5 WL 926903, at *1 (S.D. Cal. Apr. 5, 2026) (granting bond hearing for petitioner detained 6 for almost eleven months); Amado v. United States Dep’t of Just., No. 25CV2687- 7 LL(DDL), 2025 WL 3079052, at *5 (S.D. Cal. Nov. 4, 2025) (“Courts have found 8 detention over seven months without a bond hearing weighs toward a finding that it is 9 unreasonable.”) (collecting cases); Tonoyan v. Andrews, No. 1:25-CV-00815-SKO (HC), 10 2025 WL 3013684, at *4 (E.D. Cal. Oct. 28, 2025) (“Petitioner has been detained 11 approximately 11 months. This period . . . qualifies as prolonged.”).1 12 The conditions of Petitioner’s confinement weigh in her favor. Courts in this district 13 have found that conditions at the Otay Mesa Detention Center, where Petitioner is detained, 14 are “indistinguishable from penal confinement.” Kydyrali, 499 F. Supp. 3d at 773; Hoyos 15 Amado v. U.S. Dep’t of Justice, No. 25-cv-2687-LL-DDL, 2025 WL 3079052, at *6 (S.D. 16 Cal. Nov. 4, 2025). 17 As to the likely duration of Petitioner’s future detention, the Court cannot determine 18 precisely how long the appeal will take, Petitioner faces the prospect of a substantial 19 additional period of detention. See Thompson v. Mullin, No. 26-CV-2743 JLS (BJW), 2026 20 WL 1697635, at *3 (S.D. Cal. June 11, 2026) (noting that an “appeal to the BIA may take 21 months, and any appeal to the Ninth Circuit thereafter may take years”); Banda v. 22 McAleenan, 385 F. Supp. 3d 1099, 1119 (W.D. Wash. 2019) (noting appeal of IJ removal 23 order to BIA “may take up to two years or longer”). The record does not attribute any 24 material delay in the removal proceedings to either Petitioner or the Government, rendering 25 the fourth and fifth factors neutral. Finally, on the record presented, the Court is not in a 26 27 1 The fact that courts have granted habeas relief in some other cases involving longer 28 1 || position to assess the likelihood that the proceedings will result in a final order of removal; 2 || this factor is therefore also neutral. 3 On balance, the Court concludes that Petitioner’s detention has become 4 ||unreasonably prolonged. Petitioner is entitled to a prompt and individualized bond hearing, 5 |}at which Respondents must justify his continued detention by a showing of clear and 6 || convincing evidence that Petitioner would likely flee or pose a danger to the community if 7 ||released. See Singh v. Holder, 638 F.3d 1196, 1203 (9th Cir. 2011), abrogated on other 8 || grounds by Jennings v. Rodriguez, 583 U.S. 281, (2018) (explaining that “the substantial 9 || liberty interest at stake” warranted placing the burden on the government to “prove by clear 10 || and convincing evidence that an alien is a flight risk or a danger to the community to justify 11 denial of bond”); see also Martinez v. Clark, 124 F.4th 775, 785—86 (9th Cir. 2024) (stating 12 || that “the BIA properly noted that the government bore the burden to establish by clear and 13 ||convincing evidence that Martinez is a danger to the community” with respect to a bond 14 || hearing for a noncitizen detained under § 1226(c)). 15 CONCLUSION 16 For the foregoing reasons, the Petition is GRANTED as follows. Respondents are 17 || directed to arrange a bond hearing for petitioner Thi Thu Hoai Tran before an immigration 18 || court within seven (7) days of this order as described above or within such later date as 19 || she may request. The Court declines to order Petitioner’s immediate release, as the Petition 20 || does not set forth an adequate legal basis for this relief. 21 IT IS SO ORDERED. 22 || Dated: July 29, 2026 □ 23 Jokut ¢ Howe Hon. Robert S. Huie United States District Judge 25 26 27 28 °