Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 GENET GEBREMICAEL BEHRE, Case No.: 26-CV-4135 JAO (BJW)

12 Petitioner, ORDER GRANTING IN PART 13 v. PETITION FOR WRIT OF HABEAS CORPUS 14 CHRISTOPHER LAROSE, Warden Otay Mesa Detention Center, et al., 15 (ECF No. 1) Respondents. 16 17 18 Before the Court is Genet Gebremicael Behre’s (“Petitioner”) Petition for a Writ of 19 Habeas Corpus pursuant to 28 U.S.C. § 2241 (ECF No. 4). Also before the Court is 20 Respondents’ Return to the Petition for Writ of Habeas Corpus (ECF No.4), and 21 Petitioner’s Traverse (ECF No. 5). 22 For the following reasons, the Court GRANTS IN PART the Petition for a Writ of 23 Habeas Corpus. 24 BACKGROUND 25 Petitioner is a native and citizen of Ethiopia who entered the United States on 26 February 25, 2026, was detained the next day by the Department of Homeland Security’s 27 (“DHS”) Immigration and Customs Enforcement (“ICE”) division, and has remained in 28 detention since at the Otay Mesa Detention Center. ECF No. 1 ¶¶ 1, 4. Petitioner was 1 persecuted in Ethiopia, including imprisonment and sexual assault by soldiers, because of 2 the fact she is from the Tigray region. See id. ¶ 2. After her apprehension she passed a 3 credible fear interview and applied for Asylum, Withholding of Removal, and relief 4 under the Convention Against Torture. See id. ¶ 4. On June 10, 2026, an Immigration 5 Judge granted Petitioner asylum, see ECF No. 1-2 at 47, but DHS appealed the decision 6 to the Board of Immigration Appeals (“BIA”), see ECF No. 4 at 2. Petitioner remains in 7 custody and has not received a bond hearing. See ECF No. 1 ¶ 5. 8 LEGAL STANDARD 9 A federal prisoner challenging the execution of his or her sentence, rather than the 10 legality of the sentence itself, may file a petition for writ of habeas corpus in the district 11 of his confinement pursuant to 28 U.S.C. § 2241. See 28 U.S.C. § 2241(a). The sole 12 judicial body able to review challenges to final orders of deportation, exclusion, or 13 removal is the court of appeals. See generally 8 U.S.C. § 1252; see also Alvarez–Barajas 14 v. Gonzales, 418 F.3d 1050, 1052 (9th Cir. 2005) (citing REAL ID Act, Pub. L. No. 109- 15 13, 119 Stat. 231, § 106(a)). However, for claims challenging ancillary or collateral 16 issues arising independently from the removal process—for example, a claim of 17 indefinite detention—federal habeas corpus jurisdiction remains in the district court. 18 Nadarajah v. Gonzales, 443 F.3d 1069, 1076 (9th Cir. 2006), abrogated on other 19 grounds by Jennings v. Rodriguez, 583 U.S. 281 (2018); Alvarez v. Sessions, 338 F. 20 Supp. 3d 1042, 1048–49 (N.D. Cal. 2018) (citations omitted). 21 DISCUSSION 22 Petitioner argues that after the IJ granted her asylum, Respondents no longer have 23 any basis to detain her. See ECF No. 1 ¶¶ 47–48. Petitioner essentially contends that— 24 notwithstanding DHS’s appeal of the decision—the IJ’s grant of asylum bestowed legal 25 status upon Petitioner and that the immigration proceedings are effectively terminated. 26 See id. ¶ 54. As such, Petitioner asserts that the Court should order immediate release, 27 see id. ¶¶ 54–56, but requests a bond hearing in the alternative, id. ¶ 66. 28 1 Respondents dispute the finality of the IJ’s order, arguing that DHS’s appeal 2 renders it non-final. See ECF No. 4 at 1–2. According to Respondents, this means that 3 Petitioner remains mandatorily detained pursuant to 8 U.S.C. § 1225(b)(1). Id. at 2. 4 Nevertheless, Respondents “acknowledge[] that courts in this District have repeatedly 5 inferred a constitutional right against prolonged mandatory detention,” and thus 6 “concede[] that this Court should order that Petitioner receive a bond hearing, where the 7 government would bear the burden of proof of establishing, by clear and convincing 8 evidence, that Petitioner poses a danger to the community or a risk of flight.” Id. at 2. 9 As an initial matter, the Court agrees with Respondents that Petitioner is still 10 subject to detention under § 1225. Respondents direct the Court to 8 C.F.R. § 1003.39, 11 which states: “Except when certified to the [BIA], the decision of the Immigration Judge 12 becomes final upon waiver of appeal or upon expiration of the time to appeal if no appeal 13 is taken whichever occurs first.” 8 C.F.R. § 1003.39 (emphasis added). The first clause 14 suggests that an appeal of an IJ’s decision renders it non-final. By contrast, Petitioner 15 cites 8 C.F.R. § 1208.14(c)(1) for the premise that “when an Immigration Judge grants 16 asylum, the regulations require the IJ to enter an order granting asylum and terminating 17 removal proceedings,” but the regulation says no such thing. See ECF No. 1 ¶ 30; ECF 18 No. 5 at 3. 19 The Supreme Court also explained in Jennings that § 1225 mandates detention 20 “throughout the completion of applicable proceedings and not just until the moment those 21 proceedings begin,” 583 U.S. at 302, suggesting that the basis of detention does not 22 transform at different stages of the proceedings. See Rashid v. Trump, 807 F. Supp. 3d 23 349, 361–62 (D. Vermont 2025) (explaining that detention under § 1225(b) is mandatory 24 pending government’s appeal of asylum grant to BIA and collecting cases). The Court 25 thus rejects Petitioner’s argument that the grant of asylum necessarily dictates her release. 26 Regardless, as Respondents concede, the Court concludes that Petitioner’s detention has 27 become prolonged, necessitating a bond hearing. 28 1 “Neither the Ninth Circuit nor the Supreme Court have provided guidance 2 regarding the point at which an immigration detainee’s prolonged mandatory detention 3 becomes unconstitutional.” Amado v. United States Dep’t of Just., 2025 WL 3079052, at 4 *5 (S.D. Cal. Nov. 4, 2025) (citation omitted). However, “[n]early all district courts that 5 have considered the issue agree that prolonged mandatory detention pending removal 6 proceedings, without a bond hearing, will—at some point—violate the right to due 7 process.” Singh v. Barr, 400 F. Supp. 3d 1005 (S.D. Cal. 2019) (internal quotation marks 8 and citations omitted) (collecting cases). In determining whether detention has become 9 unreasonable, courts evaluate factors including “the total length of detention to date, the 10 likely duration of future detention, and the delays in the removal proceedings caused by 11 the petitioner and the government.” Lopez v. Garland, 631 F. Supp. 3d 870, 879 (E.D. 12 Cal. 2022). 13 Under the circumstances of this case—namely that an IJ granted Petitioner 14 asylum—Petitioner’s length of detention without a bond hearing, now almost six months 15 in total and two months after the grant of asylum, weighs in Petitioner’s favor. See, e.g., 16 Zadvydas, 533 U.S. at 701 (treating six months as a “presumptively reasonable period of 17 detention” in a related context); Amado, 2025 WL 3079052, at *5 (noting that “[c]ourts 18 have found detention over seven months without a bond hearing weighs toward a finding 19 that it is unreasonable”). As to the likely duration of future detention, Respondents’ 20 appeal to the BIA may take months or years. See Banda v. McAleenan, 385 F. Supp. 3d 21 1099, 1119 (W.D. Wash. 2019); Amado, 2025 WL 3079052, at *5. And while Petitioner 22 argues that Respondents’ appeal to the BIA is groundless, see ECF No. 5 at 8, the Court 23 makes no finding on whether they have engaged in bad faith. Any delay in removal 24 proceedings is thus neutral, yet on balance of the factors, the Court concludes that 25 Petitioner’s detention has become unreasonably prolonged and Petitioner is entitled to a 26 bond hearing. 27 /// 28 /// I CONCLUSION 2 Based on the foregoing, the Court GRANTS IN PART the Petition for a Writ of 3 || Habeas Corpus (ECF No. 1), and ORDERS Respondents to provide Petitioner with an 4 || individualized bond hearing within fourteen (14) days before a neutral immigration judge 5 ||in which the government bears the burden of establishing by clear and convincing 6 || evidence that Petitioner is a danger to the community or a flight risk if released. If no 7 hearing occurs within fourteen days of this Order, Petitioner shall be released from 8 || Respondents’ custody. The Court DENIES Petitioner’s request for release from 9 || detention without prejudice but notes that if Respondents do not give Petitioner an 10 || adequate bond hearing, the Court may order release in the future. See, e.g., Singh v. 11 || LaRose, 2026 WL 1387428, at *5—6 (S.D. Cal. May 18, 2026); Perez Velasquez v. Bondi, 12 2026 WL 1042479, at *6—7 (S.D. Cal. Apr. 16, 2026). The Parties SHALL file a Joint 13 Status Report by August 28, 2026, informing the Court of the outcome of the hearing. 14 IT IS SO ORDERED. 15 ||Dated: August 11, 2026 16 17 St yl f A 19 Jill A. Otake 20 >> 'S United States District Judge 21 aE 22 23 24 25 26 7 ' Petitioner requested attorney’s fees, related expenses, and costs pursuant to the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412. See ECF No. | at 32. Petitioner’s counsel may submit an appropriate 2g || EAJA fee application within 30 days of the issuance of this Order. See 28 U.S.C. § 2412(d)(1)(B).