Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MAMADOU MALIENNE DOUCOURE, Case No.: 26-CV-3995 JAO (DDL)

12 Petitioner, ORDER GRANTING IN PART AND 13 v. DENYING IN PART WRIT OF HABEAS CORPUS 14 CHRISTOPHER LAROSE, et al., 15 Respondents. (ECF No. 1) 16 17 18 19 Presently before the Court is Petitioner Mamadou Malienne Doucoure’s 20 (“Petitioner”) Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241. ECF No. 21 1. Also before the Court is Respondents Christopher LaRose’s (Warden of the Otay 22 Mesa Detention Center), Patrick Divver’s (Field Office Director of the Immigration and 23 Customs Enforcement, Enforcement and Removal Operations San Diego Field Office), 24 Todd Lyons’s (Acting Director of Immigration Customs Enforcement), Markwayne 25 Mullin’s (Secretary of the U.S. Department of Homeland Security), Todd Blanche’s 26 (Attorney General of the United States), U.S. Department of Homeland Security’s 27 (“DHS”), and Immigration and Customs Enforcement’s (collectively, “Respondents” or 28 1 the “Government”) Response to Petition, ECF No. 4, and Petitioner’s Traverse, ECF No. 2 5. 3 For the reasons set forth below, the Court GRANTS in part and DENIES in part 4 Petitioner’s Petition for Writ of Habeas Corpus. 5 BACKGROUND 6 Petitioner, a citizen of Mali, has been detained by DHS at the Otay Mesa Detention 7 Center since October 18, 2025 when he entered the United States. See ECF No. 1 ¶¶ 1, 3. 8 In 2024, countrywide human rights abuses were carried out, leading to the displacement 9 of over 600,000 Malian citizens. See id. ¶ 16. Petitioner, fearing for his life, sought 10 asylum in the United States. See id. ¶ 17–18. Immediately upon entry into the country, 11 Petitioner was determined to be inadmissible under 8 U.S.C. § 1182(a)(7)(A)(i)(I) and 12 taken into custody under 8 U.S.C. § 1225(b), where he remains in detention. See id. ¶ 16; 13 see ECF No. 4 at 2. Petitioner was then issued a Notice to Appear that initiated removal 14 proceedings. See ECF No. 4 at 2. 15 Though Petitioner was initially permitted to file for asylum, see ECF No. 1 ¶ 19, 16 the Department of Homeland Security (“DHS”) filed a motion to pretermit Petitioner’s 17 application for asylum, arguing that his asylum claim should be heard in Uganda, see 18 ECF No. 4 at 2. On March 27, 2026, an Immigration Judge (“IJ”) granted the motion to 19 pretermit and ordered Petitioner be removed to Uganda. See id. Petitioner appealed the 20 denial to the Board of Immigration Appeals (“BIA”) on March 27, 2026, meaning his 21 order of removal is not administratively final. See id. Nonetheless, he has been detained 22 for over nine months and has not been afforded a bond hearing because of the 23 Government’s position that people detained pursuant to Section 1225(b) are not entitled 24 to such a hearing. See ECF No. 1 ¶ 24. Petitioner has no criminal history and has 25 community support. See id. ¶ 44. 26 DISCUSSION 27 Petitioner argues that prolonged detention without a bond hearing violates due 28 process. See ECF No. 5 at 6–8; see also ECF No. 1 ¶ 24. However, instead of requesting 1 a bond hearing, Petitioner contends that release is the appropriate remedy here because 2 IJs have consistently ruled that they do not have jurisdiction to redetermine the conditions 3 of custody over individuals processed under the expedited removal statute, so such 4 endeavor is futile. See ECF No. 1 ¶ 24. Respondents assert that the Court lacks 5 jurisdiction and that Petitioner is lawfully detained under 8 U.S.C. § 1225(b)(2). 6 A. Jurisdiction 7 The Court has long had jurisdiction to issue writs of habeas corpus to petitioners 8 held in custody “in violation of the Constitution or laws or treaties of the United 9 States[.]” 28 U.S.C § 2241(c)(3); see Judiciary Act of 1789, ch. 20, 1 Stat. 73, 81–82. 10 Yet the Respondents argue that the Court lacks jurisdiction over this petition under 8 11 U.S.C. § 1252(g) because the claim arises from the Government’s decision to commence 12 proceedings. See ECF No. 4 at 4. Although Petitioner does not reply to Respondents’ 13 jurisdiction argument, the Court has jurisdiction here. 14 The Supreme Court has consistently rejected “the Government’s suggestion that § 15 1252(g) covers ‘all claims arising from deportation proceedings’ or imposes ‘a general 16 jurisdictional limitation.’” Dep’t of Homeland Sec. v. Regents of the Univ. of California, 17 591 U.S. 1, 19 (2020) (quoting Reno v. Am.-Arab Anti–Discrimination Comm., 525 U.S. 18 471, 482 (1999)). The Ninth Circuit has “limited [1252(g)]’s jurisdiction-stripping power 19 to actions challenging the Attorney General’s discretionary decisions to initiate 20 proceedings, adjudicate cases, and execute removal orders.” Arce v. United States, 899 21 F.3d 796, 800 (9th Cir. 2018). Thus, for claims challenging ancillary or collateral issues 22 arising independently from the removal process—such as a claim of indefinite 23 detention—federal habeas corpus jurisdiction remains in the district court. Nadarajah v. 24 Gonzales, 443 F.3d 1069, 1076 (9th Cir. 2006), abrogated on other grounds by Jennings 25 v. Rodriguez, 138 S. Ct. 830 (2018); Alvarez v. Sessions, 338 F. Supp. 3d 1042, 1048–49 26 (N.D. Cal. 2018) (citations omitted). 27 Here, Petitioner is not challenging his removal, the execution of a removal order, 28 or a discretionary decision by the Attorney General. Rather, Petitioner solely challenges 1 the constitutionality of his detention, which other courts—including those in this 2 district—routinely conclude provides jurisdiction to district courts. See Nielsen v. Preap, 3 586 U.S. 392, 401–02 (2019) (maintaining jurisdiction on appeal following district court 4 decisions to review legal challenge to decision to deny bond hearings); see also, e.g., 5 Huynh v. Noem, 2026 WL 35973, at *1 (S.D. Cal. Jan. 6, 2026); Tran v. Noem, 2025 WL 6 3005347, at *2 (S.D. Cal. Oct. 27, 2025); Sanchez v. LaRose, 2025 WL 2770629, at *2 7 (S.D. Cal. Sept. 26, 2025). The Court therefore adopts the reasoning of these other 8 decisions and finds that it has jurisdiction to review the petition. 9 B. Merits 10 1. Due Process Rights 11 “[T]he government’s discretion to incarcerate non-citizens is always constrained 12 by the requirements of due process.” Hernandez v. Sessions, 872 F.3d 976, 981 (9th Cir. 13 2017). “Civil immigration detention is permissible only to prevent flight or protect 14 against danger to the community[.]” Pinchi v. Noem, 792 F. Supp. 3d 1025, 1035 (N.D. 15 Cal. 2025); see also Zadvydas v. Davis, 533 U.S. 678, 690 (2001) (“A statute permitting 16 indefinite detention of an alien would raise a serious constitutional problem.”); Rodriguez 17 v. Marin, 909 F.3d 252, 256 (9th Cir. 2018) (“We have grave doubts that any statute that 18 allows for arbitrary prolonged detention without any process is constitutional or that 19 those who founded our democracy precisely to protect against the government’s arbitrary 20 deprivation of liberty would have thought so. Arbitrary civil detention is not a feature of 21 our American government.”). 22 Petitioner argues that his due process rights have been violated based on his nine- 23 month detention without a bond hearing. See ECF No. 1 ¶ 42; ECF No. 5 at 8. 24 Respondents contend that arriving noncitizens under Section 1225(b)(1) do not have a 25 due process right to release or a bond hearing based on the detention’s duration. See ECF 26 No. 4 at 6–8 (citing Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206 (1953); 27 Department of Homeland Security v. Thuraissigiam, 591 U.S. 103 (2020)). However, 28 many courts—including this one—disagree. 1 Indeed, “[n]early all district courts that have considered the issue agree that 2 prolonged mandatory detention pending removal proceedings, without a bond hearing, 3 will—at some point—violate the right to due process.” Singh v. Barr, 400 F. Supp. 3d 4 1005 (S.D. Cal. 2019) (internal quotation marks and citations omitted) (collecting cases); 5 see also Maksin v. Warden, Golden State Annex, 2025 WL 2879328, at *3 (E.D. Cal. Oct. 6 9, 2025) (collecting cases). This holds true for those detained under Section 1225, such 7 as Petitioner. See Gao v. LaRose, 805 F. Supp. 3d 1106, 1110 (S.D. Cal. 2025) (agreeing 8 with “the majority position that a petitioner detained under Section 1225(b)(1) may assert 9 a due process challenge to prolonged mandatory detention without a bond hearing”); see 10 also Kydyrali v. Wolf, 499 F. Supp. 3d 768, 772 (S.D. Cal. 2020). 11 Thus, the Court must determine whether Petitioner’s detention is so prolonged as 12 to violate due process. “Neither the Ninth Circuit nor the Supreme Court have provided 13 guidance regarding the point at which an immigration detainee’s prolonged mandatory 14 detention becomes unconstitutional.” Amado v. United States Dep’t of Just., 2025 WL 15 3079052, at *5 (S.D. Cal. Nov. 4, 2025) (citation omitted). In determining whether 16 detention has become unreasonable, courts evaluate factors including “the total length of 17 detention to date, the likely duration of future detention, and the delays in the removal 18 proceedings caused by the petitioner and the government.” Lopez v. Garland, 631 F. 19 Supp. 3d 870, 879 (E.D. Cal. 2022). Some courts also consider the conditions of 20 detention and the likelihood that the removal proceedings will result in a final order of 21 removal. See, e.g., Sadeqi v. LaRose, 809 F. Supp. 3d 1090, 1094 (S.D. Cal. 2025). 22 As stated, Petitioner has been detained for more than nine months without any 23 bond hearing. See ECF No. 1 ¶ 24. Courts have determined that similarly long periods 24 of detention without a bond hearing support a finding of unreasonableness. See, e.g., 25 Zadvydas, 533 U.S. at 701, 121 S.Ct. 2491 (treating six months as a “presumptively 26 reasonable period of detention” in a related context); Amado, 2025 WL 3079052, at *5 27 (noting that “[c]ourts have found detention over seven months without a bond hearing 28 1 weighs toward a finding that it is unreasonable”). As such, the length of his detention 2 weighs in Petitioner’s favor. 3 As to the likely duration of future detention, Petitioner’s appeal to the BIA may 4 take “anywhere from 6 months to a year for adjudication[,]” ECF No. 1 ¶ 20, and could 5 then be followed by a petition for review to the Ninth Circuit. This process could last 6 years and, thus, the likely duration of future detention weighs in favor of Petitioner. See 7 Banda v. McAleenan, 385 F. Supp. 3d 1099, 1119 (W.D. Wash. 2019); Amado, 2025 WL 8 3079052, at *5. 9 Regarding any delay in removal proceedings, the record does not demonstrate 10 delay by Petitioner. See ECF No. 1 ¶ 41 (“No delay is attributable to Mr. Doucoure. He 11 has been ready to defend his application since he arrived”); see ECF No. 4 at 10 (not 12 disputing Petitioner’s assertion). Balancing these factors, the Court concludes that 13 Petitioner’s detention has become unreasonably prolonged, and therefore, his due process 14 rights have been violated. 15 2. Appropriate Relief 16 While the Court agrees that Petitioner’s prolonged detention triggers due process 17 concerns, Petitioner has not shown that release is the appropriate recourse. Generally, 18 courts in this district have favored ordering a bond hearing over immediate release. See 19 e.g., Singh v. LaRose, 2026 WL 684654, at *4 (S.D. Cal. Mar. 10, 2026) (denying release 20 because “[i]f past history is any guide, the Respondents have shown the [utmost] respect 21 for this Court’s [orders for bond hearings] and has timely followed them thereby enabling 22 the mutual respect of the Court.”). Indeed, Petitioner’s Traverse relied on the legal 23 analysis in Gao to support his due process arguments, but there, the court denied the 24 petitioner’s request for release and instead ordered an individualized bond hearing. See 25 805 F. Supp. 3d at 1112. Therefore, the Court concludes Petitioner is only entitled to a 26 bond hearing at this time. 27 CONCLUSION 28 1 Based on the foregoing, the Court GRANTS in part and DENIES in part 2 || Petitioner’s Petition for Writ of Habeas Corpus (ECF No. 1). The remedy of release 3 || without bond is DENIED without prejudice. Instead, the Court ORDERS Respondents 4 || to provide Petitioner with an individualized bond hearing within fourteen (14) days 5 || before a neutral immigration judge in which the government bears the burden of 6 || establishing by clear and convincing evidence that Petitioner is a danger to the 7 |}community or a flight risk if released. If no hearing occurs within fourteen days of this 8 || Order, Petitioner shall be released from Respondents’ custody. The Parties SHALL file 9 Joint Status Report by August 14, 2026, informing the Court of the outcome of the 10 || hearing. 11 IT IS SO ORDERED. 12 Dated: July 31, 2026 13 J @ ee Sh flan 15 oY a V7 16 dnt Jill A. Otake 7 to i '$ United States District Judge 18 = 19 20 21 22 23 24 25 26 27 28