Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MEHRAD FARDIJOUYBARI, Case No.: 26-cv-3840-BJC-AHG 12 Petitioner, ORDER GRANTING PETITION FOR WRIT OF HABEAS CORPUS 13 v. 14 MARKWAYNE MULLIN, Secretary of the Department Homeland Security, et. al. 15 Respondents. 16 17 18 BACKGROUND 19 Petitioner Mehrad Fardijouybari, a citizen of Iran, entered the United States on 20 October 18, 2024, and was detained by the Department of Homeland Security (“DHS”) the 21 same day. ECF No. 1 at 19; ECF No. 4-1 at 3. He received a referral for a credible fear 22 interview on October 20, 2024, and was served with a Notice to Appear on December 10, 23 2024. ECF No. 4-1 at 2-8. On August 11, 2025, an immigration judge denied Petitioner’s 24 applications for asylum, withholding of removal and deferral of removal, and ordered 25 Petitioner removed to Iran. Id. at 10-13. Petitioner’s appeal was dismissed on February 26 26, 2026. 27 On July 1, 2026, Petitioner filed the instant Petition for a Writ of Habeas Corpus 28 1 pursuant to 28 U.S.C. § 2241. ECF No. 1. Respondent filed a return to the petition on July 2 14, 2026, and Petitioner filed a traverse on July 21, 2026. ECF Nos. 6, 7. 3 LEGAL STANDARD 4 Courts may grant habeas corpus relief to those “in custody in violation of the 5 Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241; see also Hamdi v. 6 Rumsfeld, 542 U.S. 507, 525, 124 S. Ct. 2633, 2644, 159 L. Ed. 2d 578 (2004) (“[T]he writ 7 of habeas corpus remains available to every individual detained within the United States.”). 8 Courts are authorized to grant writs pursuant to § 2241 to noncitizens in custody in 9 violation of the Constitution or laws or treaties of the United States. Magana-Pizano v. 10 I.N.S., 200 F.3d 603, 609 (9th Cir. 1999). 11 DISCUSSION 12 Petitioner asserts his detention violates Zadvydas v. Davis, 533 U.S. 678 (2001) and 13 8. U.S.C. § 1231. Petitioner argues he rebuts the presumptive reasonableness of his 14 detention, because there is no significant likelihood he will be removed to Iran in the 15 reasonably foreseeable future. He further argues the removal policies in the July 9, 2025 16 Immigration and Customs Enforcement memo violate the Fifth Amendment, 8 U.S.C. § 17 1231, and the Convention Against Torture. He maintains due process requires adequate 18 notice and an opportunity to be heard before removing him to a third country. ECF No. 1. 19 at 14-16. 20 Respondents argue Petitioner’s claim is barred by 8 U.S.C. § 1252, the petition is 21 premature, and Petitioner cannot show there is no significant likelihood of removal in the 22 reasonably foreseeable future. ECF No. 4. 23 I. Jurisdiction 24 Respondents contend Petitioner’s claims arise from the Attorney General’s decision 25 to execute removal orders and, therefore, his claims are jurisdictionally barred pursuant § 26 1252(g). ECF No. 4 at 2-3. Congress explicitly divested the court of jurisdiction over 27 claims “arising from the decision or action by the Attorney General to commence 28 proceedings, adjudicate cases, or execute removal orders.” 8 U.S.C. § 1252(g). The 1 provision is read narrowly and does not apply to every decision or action that may be a part 2 of the deportation process, only those involving the Attorney General’s decision to 3 commence proceedings, adjudicate cases, or execute removal orders. Ibarra-Perez v. 4 United States, No. 24-631, 2025 WL 2461663, at *6 (9th Cir. Aug. 27, 2025) (citing Reno 5 v. American-Arab Anti-Discrimination Committee, 525 U.S. 471 (1999)). Challenges to 6 unconstitutional practices and policies that do not arise from the Attorney General’s 7 decision to commence proceedings, adjudicate cases or execute removal orders, but are 8 merely collateral to those, are not subject to § 1252(g). Walters v. Reno, 145 F.3d 1032, 9 1052 (9th Cir. 1998) (citing McNary v. Haitian Refugee Ctr., Inc., 498 U.S. 479, 492 10 (1991)). 11 Petitioner’s claim, which challenges his detention as unconstitutionally prolonged, 12 is merely collateral to, but does not arise from, the decision to commence and adjudicate 13 proceedings. See Nguyen v. Fasano, 84 F. Supp. 2d 1099, 1104 (S.D. Cal. 2000) 14 (“Petitioners’ challenge to their indefinite detention is [ ] distinct from a petition that seeks 15 review of the bond determination itself.”); Alikhani v. Fasano, 70 F. Supp. 2d 1124, 1126 16 (S.D. Cal. 1999) (“[A] challenge to the constitutionality of confinement pending 17 deportation does not address any discretionary action by the Attorney General, and “does 18 not implicate the three categories of unreviewable decisions specified in § 1252(g).”); 19 Diaz-Zaldierna v. Fasano, 43 F. Supp. 2d 1114, 1117 (S.D. Cal. 1999) (“The propriety of 20 holding petitioner without any possibility of release on bail is distinct from a ‘decision or 21 action by the Attorney General to commence proceedings, adjudicate cases, or execute 22 removal orders.’”). Accordingly, § 1252(g) does not deprive this Court of jurisdiction to 23 hear Petitioner’s claims. 24 II. Merits of the Petition 25 Pursuant to § 1231, non-citizens subject to a final order of removal must be detained 26 during the removal period. 8 U.S.C. § 1231(a)(1)(A). The removal period is the ninety 27 days within which the Attorney General must remove an individual ordered removed. Id. 28 The removal period begins on the latest of the following dates: “(i) [t]he date the order of 1 removal becomes administratively final; (ii) [i]f the removal order is judicially reviewed 2 and if a court orders a stay of the removal of the alien, the date of the court’s final order; 3 (iii) [i]f the alien is detained or confined (except under an immigration process), the date 4 the alien is released from detention or confinement.” 8 U.S.C. §1231(a)(1)(B). 5 The petition is not premature. The presumptively reasonable six-month period of 6 detention discussed in Zadvydas is rebuttable. Trinh v. Homan, 466 F. Supp. 3d 1077, 7 1093 (C.D. Cal. 2020) (“Zadvydas established a ‘guide’ for approaching detention 8 challenges, not a categorical prohibition on claims challenging detention less than six 9 months.”); see also Ndandu v. Noem, No. 3:25-CV-02939-RBM-MSB, 2026 WL 25848, 10 at *3 (S.D. Cal. Jan. 5, 2026) (Collecting cases finding the six-month presumption is 11 rebuttable.). The Court finds Petitioner demonstrates “that there is no significant likelihood 12 of removal in the reasonably foreseeable future,” and Respondents fail to rebut this 13 showing. Zadvydas, 533 U.S. at 701. Petitioner has been in custody for over a year and 14 has been subject to a final order of removal for over five months. While Respondents 15 contend they have the documents to request repatriation to Iran, they admit removals to 16 Iran are “paused” due to the closure of Iranian airspace. ECF No. 4-1 ¶¶ 8, 9. They provide 17 no information on when airspace will be reopened and how long after it is reopened that 18 removal can occur. Petitioner cannot be removed to his country of citizenship in the 19 reasonably foreseeable future, and he would be entitled to seek protection from removal to 20 a third country. Therefore, Petitioner is entitled to release under Zadvydas. 21 Moreover, due process supports Petitioner’s request for injunctive relief related to 22 ICE’s policy regarding third country removals presented in the memo dated July 9, 2025. 23 ECF No. 1 at 2. Several courts within the Ninth Circuit have held the policies provided in 24 the ICE memo violate due process. Lapshin v. Bondi, No. C25-2245-KKE, 2026 WL 25 71407, at *5 (W.D. Wash. Jan. 9, 2026); Elshourbagy v. Bondi, No. 2:25-CV-02432-TL, 26 2025 WL 3718993, at *8 (W.D. Wash. Dec. 23, 2025); Escobar v. Chestnut, No. 1:25-CV- 27 01801-DJC-EFB, 2025 WL 3687639, at *4 (E.D. Cal. Dec. 19, 2025); Azzo v. Noem, No. 28 3:25-CV-03122-RBM-BJW, 2025 WL 3535208, at *7 (S.D. Cal. Dec. 10, 2025); Vishal v. 1 Chestnut, __ F.Supp.3d __, 2025 WL 3511815, at *6 (E.D. Cal. Dec. 8, 2025); Kumar v. 2 Wamsley, No. C25-2055-KKE, 2025 WL 3204724, at *6 (W.D. Wash. Nov. 17, 2025); Vu 3 v. Noem, No. 1:25-CV-01366-KES-SKO (HC), 2025 WL 3114341, at *9 (E.D. Cal. Nov. 4 6, 2025); Esmail v. Noem, No. 2:25-CV-08325-WLH-RAO, 2025 WL 3030589, at *6 5 (C.D. Cal. Sept. 26, 2025). This Court agrees. The memo suggests removal to a third 6 country may occur without an opportunity to be heard if the United States receives and 7 believes diplomatic assurances that there will be no persecution or torture. According to 8 the Ninth Circuit, “last minute orders of removal to a country may violate due process if 9 an immigrant was not provided an opportunity to address his fear of persecution in that 10 country.” Najjar v. Lynch, 630 F. App’x 724 (9th Cir. 2016). Additionally, when the third 11 country does not provide such assurances, ERO “will not affirmatively ask whether the 12 alien is afraid of being removed to that country.” However, “[f]ailing to notify individuals 13 who are subject to deportation that they have the right to apply for asylum. . .and for 14 withholding of deportation to the country to which they will be deported violates” 15 regulations and due process. Andriasian v. I.N.S., 180 F.3d 1033, 1041 (9th Cir. 1999) 16 (citing Kossov v. INS, 132 F.3d 405, 408–09 (7th Cir.1998)). 17 Based on the foregoing, the Court ORDERS: 18 1. The petition for writ of habeas corpus is GRANTED. 19 2. Respondents shall immediately release Petitioner. 20 3. Respondents are ENJOINED from re-detaining Petitioner under 8 U.S.C. 21 § 1231(a)(6) unless and until Respondents obtain a travel document for his removal. 22 4. Respondents are ENJOINED from re-detaining Petitioner without first 23 following the procedures set forth in 8 C.F.R. §§ 241.4(l), 241.13(i), and any other 24 applicable statutory and regulatory procedures. 25 5. Respondents are ENJOINED from removing Petitioner to a third country 26 unless they adhere to the following procedures: 27 a. provide written notice to Petitioner, in a language he can understand and to 28 his counsel; 1 b. provide Petitioner a minimum of ten (10) days to raise a fear-based claim 2 for CAT protection prior to removal; 3 c. if Petitioner demonstrates reasonable fear of removal to the country, 4 Respondents must move to reopen Petitioner’s removal proceedings; 5 d. if Petitioner is not found to have demonstrated a reasonable fear of removal 6 to the third country, Respondents must provide a meaningful opportunity, and 7 a minimum of fifteen (15) days for Petitioner to seek reopening of his 8 immigration proceedings. 9 6. The Clerk of Court shall close this matter. 10 IT IS SO ORDERED. 11 Dated: August 3, 2026 12 Honorable Benjamin J. Cheeks 15 United States District Judge 16 17 18 19 20 21 22 23 24 25 26 27 28