Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DANILA KOMAROV, Case No.: 26cv3530-LL-SBC 12 Petitioner, ORDER GRANTING AMENDED 13 v. PETITION FOR WRIT OF HABEAS CORPUS UNDER 28 U.S.C. § 2241 14 CHRISTOPHER J. LAROSE, Warden, Otay Mesa Detention Center, 15 Respondent. [ECF No. 8] 16 17 Before the Court is Petitioner Danila Komarov’s Amended Petition for a Writ of 18 Habeas Corpus under 28 U.S.C. § 2241. ECF No. 8 (“Pet.”). The government filed a 19 Response [ECF No. 9], and Mr. Komarov filed a Traverse [ECF No. 12]. For the reasons 20 set forth below, the Court GRANTS the Amended Petition. 21 I. BACKGROUND 22 Mr. Komarov is a citizen of Russia who has been detained at the Otay Mesa 23 Detention Center since he entered the United States on November 18, 2025 seeking asylum. 24 ECF No. 8-1, Declaration of Danila Komarov (“Komarov Decl.”), ¶¶ 1, 6; ECF No. 9-1 at 25 2–5, 7. His application for asylum was denied in May 2026 and he was ordered removed 26 to Russia. Komarov Decl. ¶ 4. Mr. Komarov filed an appeal to the Board of Immigration 27 / / / 28 1 Appeals, which remains pending, and intends to appeal to the Ninth Circuit Court of 2 Appeals if he does not prevail. Id. ¶ 5. 3 On July 2, 2026, Mr. Komarov filed the instant Amended Petition, alleging that his 4 prolonged detention without a bond hearing violates the Due Process Clause of the Fifth 5 Amendment. Pet. at 3. He seeks a writ of habeas corpus directing the government to release 6 him, or alternatively, to provide him with a bond hearing in district court or before an 7 immigration judge at which the government bears the burden of justifying continued 8 detention. Id. at 18. 9 II. LEGAL STANDARD 10 A district court may grant a writ of habeas corpus when a petitioner “is in custody 11 in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. 12 § 2241(c); Magana-Pizano v. I.N.S., 200 F.3d 603, 609 (9th Cir. 1999) (“28 U.S.C. § 2241 13 expressly permits the federal courts to grant writs of habeas corpus to aliens when those 14 aliens are ‘in custody in violation of the Constitution or laws or treaties of the United 15 States.’”). In federal habeas proceedings, the petitioner bears the burden of proving his case 16 by a preponderance of evidence. Lambert v. Blodgett, 393 F.3d 943, 970 n.16 (9th Cir. 17 2004); Bellew v. Gunn, 532 F.2d 1288, 1290 (9th Cir. 1976) (citations omitted). 18 III. DISCUSSION 19 A. Jurisdiction 20 The government argues that as a threshold matter, Mr. Komarov’s claims and 21 requested relief are jurisdictionally barred under 8 U.S.C. § 1252(g). ECF No. 9 at 3–4. 22 Section 1252(g) states that “[e]xcept as provided in this section and notwithstanding 23 any other provision of law (statutory or nonstatutory), including section 2241 of Title 28, 24 or any other habeas corpus provision, . . . no court shall have jurisdiction to hear any cause 25 or claim by or on behalf of any alien arising from the decision or action by the Attorney 26 General to commence proceedings, adjudicate cases, or execute removal orders against any 27 alien under this chapter.” 8 U.S.C. § 1252(g). 28 1 The government argues that Mr. Komarov’s claims are barred because they arise 2 “from the decision or action by the [government] to commence proceedings,” which 3 removes district court jurisdiction. ECF No. 9 at 4 (alteration in original). 4 The Court finds § 1252(g) does not bar its jurisdiction over Mr. Komarov’s claims. 5 The Supreme Court has explained that § 1252(g) does not bar jurisdiction for the “universe 6 of deportation claims” but instead “applies only to three discrete actions that the Attorney 7 General may take: her ‘decision or action’ to ‘commence proceedings, adjudicate cases, or 8 execute removal orders.’” Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471, 9 482 (1999); see also Ibarra-Perez v. United States, No. 24-631, 2025 WL 2461663, at *2 10 (9th Cir. Aug. 27, 2025) (“The Supreme Court has instructed that we should read § 1252(g) 11 narrowly.”). The Supreme Court later reiterated this narrow application of § 1252(g): 12 “We did not interpret this language to sweep in any claim that can technically be said to 13 ‘arise from’ the three listed actions of the Attorney General. Instead, we read the language 14 to refer to just those three specific actions themselves.” Jennings v. Rodriguez, 583 U.S. 15 281, 294 (2018) (citation omitted). Mr. Komarov is not challenging the commencement of 16 removal proceedings but is instead claiming a lack of legal authority to detain him for a 17 prolonged time without a bond hearing during proceedings. See Ibarra-Perez, 2025 WL 18 2461663, at *2 (noting that a claim based on a lack of legal authority to execute a removal 19 order due to a violation of a court order, the Constitution, INA, or international law, does 20 not challenge the decision or action to execute a removal order). Therefore, 21 § 1252(g) does not limit the Court’s jurisdiction in this matter. 22 B. Fifth Amendment Due Process Clause 23 Mr. Komarov argues that his prolonged detention without a bond hearing violates 24 the Fifth Amendment’s Due Process Clause. Pet. at 3. 25 The government contends there is no due process violation because Mr. Komarov is 26 detained pursuant to § 1225(b)(1), which mandates detention through the conclusion of the 27 removal process, and that is all the process he will receive. ECF No. 9 at 4–10. The 28 1 government also argues that Mr. Komarov’s detention is not unconstitutionally prolonged. 2 Id. 3 The Due Process Clause of the Fifth Amendment provides that no person shall be 4 “deprived of life, liberty, or property, without due process of law.” U.S. Const. amend. V. 5 “It is well established that the Fifth Amendment entitles aliens to due process of law in 6 deportation proceedings.” Demore v. Kim, 538 U.S. 510, 523 (2003) (citing Reno v. Flores, 7 507 U.S. 292, 306 (1993)). “At the same time, however, this Court has recognized 8 detention during deportation proceedings as a constitutionally valid aspect of the 9 deportation process.” Id. The Ninth Circuit has questioned the constitutionality of certain 10 immigration detention statutes, including § 1225(b): 11 We have grave doubts that any statute that allows for arbitrary prolonged detention without any process is constitutional or that those who founded our 12 democracy precisely to protect against the government’s arbitrary deprivation 13 of liberty would have thought so. Arbitrary civil detention is not a feature of our American government. “[L]iberty is the norm, and detention prior to trial 14 or without trial is the carefully limited exception.” United States v. Salerno, 15 481 U.S. 739, 755, 107 S. Ct. 2095, 95 L.Ed.2d 697 (1987). Civil detention violates due process outside of “certain special and narrow nonpunitive 16 circumstances.” Zadvydas v. Davis, 533 U.S. 678, 690, 121 S. Ct. 2491, 150 17 L.Ed.2d 653 (2001) (internal quotation marks and citation omitted). Rodriguez v. Marin, 909 F.3d 252, 256–57 (9th Cir. 2018) (alteration in original). 18 The Court agrees with those courts that have found a noncitizen detained under 19 § 1225(b) for a prolonged period without an individualized bond hearing may assert a 20 constitutional right to due process. See Sadeqi v. LaRose, 809 F. Supp. 3d 1090, 1093 (S.D. 21 Cal. 2025) (“This Court agrees with the majority position that a petitioner detained under 22 Section 1225(b)(1) may assert a due process challenge to prolonged mandatory detention 23 without a bond hearing.”); Maksin v. Warden, Golden State Annex, No. 1:25-CV-00955- 24 SKO (HC), 2025 WL 2879328, at *3 (E.D. Cal. Oct. 9, 2025) (“Several courts including 25 the Third, Sixth, and Ninth Circuit, as well as numerous district courts, have found that 26 unreasonably long detention periods may violate the due process clause.” (collecting 27 cases)); Abdul-Samed v. Warden of Golden State Annex Det. Facility, No. 1:25-CV-00098- 28 1 SAB-HC, 2025 WL 2099343, at *6 (E.D. Cal. July 25, 2025) (“[E]ssentially all district 2 courts that have considered the issue agree that prolonged mandatory detention pending 3 removal proceedings, without a bond hearing, ‘will—at some point—violate the right to 4 due process.’” (quoting Martinez v. Clark, No. C18-1669-RAJ-MAT, 2019 WL 5968089, 5 at *6 (W.D. Wash. May 23, 2019), report and recommendation adopted, 6 No. 18-CV-01669-RAJ, 2019 WL 5962685 (W.D. Wash. Nov. 13, 2019))); Kydyrali v. 7 Wolf, 499 F. Supp. 3d 768, 772 (S.D. Cal. 2020) (“[T]he Court joins the majority of courts 8 across the country in concluding that an unreasonably prolonged detention under 8 U.S.C. 9 § 1225(b) without an individualized bond hearing violates due process.”); Banda v. 10 McAleenan, 385 F. Supp. 3d 1099, 1116–17 (W.D. Wash. 2019). 11 The government relies on two cases to support its argument that § 1225(b)(1) and its 12 provision for mandatory detention provides all the process that Petitioner is due, but the 13 Court is not persuaded. ECF No. 9 at 6–8 (citing Dep’t of Homeland Sec. v. Thuraissigiam, 14 591 U.S. 103 (2020), and Shaughnessy v. United States ex rel. Mezei, 15 345 U.S. 206 (1953)). In Thuraissigiam, the habeas petitioner argued that the Illegal 16 Immigration Reform and Immigrant Responsibility Act of 1996 violated “his right to due 17 process by precluding judicial review of his allegedly flawed credible-fear proceeding.” 18 Thuraissigiam, 591 U.S. at 138. The Supreme Court found that the petitioner, as an 19 applicant for admission, was provided “the right to a determination whether he had a 20 significant possibility of establishing eligibility for asylum” pursuant to § 1225(b), and that 21 he had “only those rights regarding admission that Congress has provided by statute.” Id. 22 at 140 (internal quotation marks and brackets omitted) (quoting §§ 1225(b)(1)(B)(ii), (v)). 23 The Court finds Thuraissigiam addressed a noncitizen’s right to challenge admission, not 24 detention. See, e.g., Sadeqi, 809 F. Supp. 3d at 1093 (“This Court likewise agrees with 25 those district courts that interpret Thuraissigiam as circumscribing an arriving alien’s due 26 process rights to admission, rather than limiting that person’s ability to challenge 27 detention.”); Aviles-Mena v. Kaiser, No. 25-CV-06783-RFL, 2025 WL 2578215, at *4 28 1 (N.D. Cal. Sep. 5, 2025) (finding Thuraissigiam inapplicable to cases challenging 2 detention). 3 The Court finds Mezei is also distinguishable. Mezei involved a noncitizen who had 4 been “permanently excluded from the United States on security grounds but stranded in his 5 temporary haven on Ellis Island because other countries [would] not take him back.” Mezei, 6 345 U.S. at 207. The Supreme Court recognized Mezei’s exclusion for security reasons as 7 different from noncitizens who may be released from detention on bond. Id. at 216 (“An 8 exclusion proceeding grounded on danger to the national security, however, presents 9 different considerations; neither the rationale nor the statutory authority for such release 10 exists.”). The facts are significantly different because Mr. Komarov has not been excluded 11 as a security risk and does not have a final order of removal. See Rosales-Garcia v. 12 Holland, 322 F.3d 386, 413–14 (6th Cir. 2003) (“[T]he Mezei Court explicitly grounded 13 its decision in the special circumstances of a national emergency and the determination by 14 the Attorney General that Mezei presented a threat to national security.”); Kydyrali, 499 F. 15 Supp. 3d at 772 (finding Mezei inapposite to issue of whether prolonged detention without 16 a bond hearing violates due process). 17 Mr. Komarov contends that applying any of the various factor tests used in this 18 circuit shows that his detention violates his due process rights. Pet. at 8–9; ECF No. 12 at 19 5–7. The government argues that applying the six-factor balancing test articulated in Banda 20 v. McAleenan, 385 F. Supp. 3d 1099 (W.D. Wash. 2019), shows that Mr. Komarov’s 21 detention is not unconstitutional at this stage. ECF No. 9 at 8–9. 22 Courts in the Ninth Circuit have used various factor tests to determine whether due 23 process requires a bond hearing in immigration detention cases, including the Banda test. 24 In Banda, the court considered the following factors to determine whether prolonged 25 mandatory detention under § 1225(b) in a particular case violates the Due Process Clause: 26 “(1) the total length of detention to date; (2) the likely duration of future detention; (3) the 27 conditions of detention; (4) delays in the removal proceedings caused by the detainee; 28 (5) delays in the removal proceedings caused by the government; and (6) the likelihood 1 that the removal proceedings will result in a final order of removal.” Banda, 385 F. Supp. 2 3d at 1118 (quoting Jamal A. v. Whitaker, 358 F. Supp. 3d 853, 858–59 (D. Minn. 2019)). 3 The Court first considers the length of detention and likely duration of future 4 detention. The total length of detention to date is considered the most important factor. Id. 5 To date, Mr. Komarov has been in detention for almost nine months. Courts have found 6 detentions of similar and shorter duration without a bond hearing weigh toward a finding 7 that they are unreasonable. See, e.g., Masood v. Barr, No. 19-CV-07623-JD, 2020 WL 8 95633, at *3 (N.D. Cal. Jan. 8, 2020) (nearly nine months); Cabral v. Decker, 331 F. Supp. 9 3d 255, 261 (S.D.N.Y. 2018) (over seven months); Brissett v. Decker, 324 F. Supp. 3d 444, 10 452 (S.D.N.Y. 2018) (over nine months). Therefore, the Court finds the length of detention 11 weighs in favor of Mr. Komarov. Mr. Komarov’s future detention can last several more 12 months or even years during the adjudication of his appeal to the BIA and if unfavorable, 13 his appeal to the Ninth Circuit. See Banda, 385 F. Supp. 3d at 1119 (finding an appeal to 14 the BIA and subsequent judicial review “may take up to two years or longer”). The Court 15 finds the duration of future detention weighs in favor of Mr. Komarov. 16 In considering the conditions of detention, “[t]he more that the conditions under 17 which the [noncitizen] is being held resemble penal confinement, the stronger his argument 18 that he is entitled to a bond hearing.” Banda, 385 F. Supp. 3d at 1119 (second alteration 19 in original) (citation omitted). Mr. Komarov is detained at Otay Mesa Detention Center, 20 which courts have found to be “indistinguishable from penal confinement.” Kydyrali, 499 21 F. Supp. 3d at 773 (citation omitted); Gao v. LaRose, 805 F. Supp. 3d 1106, 1111 (S.D. 22 Cal. 2025). The Court finds this factor weighs in favor of Mr. Komarov. 23 The fourth and fifth factors concern delays in the removal proceedings caused by 24 Mr. Komarov or the government. The Court finds no showing that either side has caused 25 undue delays, so these factors are neutral. 26 In considering the “likelihood that the removal proceedings will result in a final order 27 of removal,” the Court considers “whether the noncitizen has asserted any defenses to 28 removal.” Banda, 385 F. Supp. at 1120 (citations omitted). “[W]here a noncitizen has 1 asserted a good faith challenge to removal, ‘the categorical nature of the detention will 2 become increasingly unreasonable.’” Id. (citing Sajous v. Decker, No. 18-CV-2447 (AJN), 3 2018 WL 2357266, at *11 (S.D.N.Y. May 23, 2018)). An immigration judge denied Mr. 4 Komarov’s asylum application, but it is currently pending on appeal. With no knowledge 5 of the merits of the asylum application, the Court finds this factor is neutral. 6 Considering all the factors, the Court finds Mr. Komarov’s mandatory detention 7 under § 1225(b) has become unreasonable and that due process requires that he be provided 8 with a bond hearing. See Rodriguez v. Robbins, 715 F.3d 1127, 1144 (9th Cir. 2013) (“[W]e 9 note that the discretionary parole system available to § 1225(b) detainees is not sufficient 10 to overcome the constitutional concerns raised by prolonged mandatory detention.”). 11 Mr. Komarov contends that the Court should consider immediate release, a bond 12 hearing in district court, or a bond hearing with additional safeguards because immigration 13 judges’ neutrality has been compromised. Pet. at 10–18. 14 The Court finds it appropriate for the government to provide Mr. Komarov with a 15 bond hearing that includes certain procedural safeguards. At the bond hearing before a 16 neutral immigration judge, the government “must justify his continued detention by a 17 showing of clear and convincing evidence that [Mr. Komarov] would likely flee or pose a 18 danger to the community if released.” Gao, 805 F. Supp. 3d at 1112 (citations omitted); 19 Martinez v. Clark, 124 F.4th 775, 786 (9th Cir. 2024) (noting that due process requires “the 20 government to prove dangerousness or risk of flight by clear and convincing evidence” at 21 a bond hearing for noncitizens subject to prolonged detention (citing Singh v. Holder, 638 22 F.3d 1196, 1200, 1205 (9th Cir. 2011))). Immigration courts must make a contemporaneous 23 record of bond hearings, which can be an audio recording. Martinez, 124 F.4th at 786 24 (citing Singh, 638 F.3d at 1200). Additionally, if the immigration judge finds that bond is 25 appropriate, then he or she must consider the detainee’s financial circumstances and 26 possible alternative release conditions. Hernandez v. Sessions, 872 F.3d 976, 990–91 (9th 27 Cir. 2017). 28 Accordingly, the Court GRANTS the Amended Petition. 1 |}IV. CONCLUSION 2 For the reasons set forth above, the Court ORDERS: 3 1. Mr. Komarov’s Amended Petition for Writ of Habeas Corpus is GRANTED. 4 2. The government shall provide Mr. Komarov with an individualized bond 5 || hearing before an immigration judge within ten (10) days of the date of this order, unless 6 Komarov requests a continuance. 7 a. At the hearing, the government SHALL BEAR the burden of 8 establishing by clear and convincing evidence that Mr. Komarov would likely 9 flee or pose a danger to the community if released, while further specifying 10 that concerns about interrupting court schedules is not a ground to deny bond. 11 b. The immigration judge SHALL consider alternative conditions of 12 release and Mr. Komarov’s ability to pay bond if he or she determines bond 13 is appropriate. 14 C. If requested by Mr. Komarov, the government SHALL assist him in 15 obtaining the audio recording of the bond hearing. 16 3. The Clerk of Court shall enter judgment in Mr. Komarov’s favor and close 17 || this case. 18 IT IS SO ORDERED. 19 ||Dated: August 10, 2026 NO 20 DE | 7] Honorable Linda Lopez 9 United States District Judge 23 24 25 26 27 28