Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 BALEWA RANDOLF KWALAR, Case No.: 3:26-cv-2447-JES-BLM 12 Petitioner, ORDER GRANTING IN PART 13 v. PETITION FOR WRIT OF HABEAS CORPUS PURSUANT TO 28 U.S.C. § 14 Warden, Otay Mesa Detention Center; 2241 Secretary of Homeland Security; Attorney 15 General, 16 [ECF No. 1] Respondents. 17 18 19 20 21 Before the Court is Petitioner Balewa Randolf Kwalar's (“Petitioner”) Petition for 22 Writ of Habeas Corpus, pursuant to 28 U.S.C. § 2241. ECF No. 1, (“Pet.”). On May 1, 23 2026, the Court found that Petitioner's due process claim was not yet ripe for adjudication, 24 retained jurisdiction, and Ordered Respondents (the “Government”) to file a Status Report 25 by June 30, 2026. ECF No. 6. On June 26, 2026, the Government timely filed its Status 26 Report. ECF No. 7. Having considered the Status Report, the record as a whole, and for 27 the reasons set forth below, the Court GRANTS IN PART the Petition and ORDERS that 28 Petitioner be afforded an individualized bond hearing. 1 I. BACKGROUND 2 In its May 1st Order, the Court applied the six-factor test set forth in Banda v. 3 McAleenan and found that two factors, the conditions of Petitioner's confinement and the 4 likely duration of future detention, weighed in Petitioner's favor, while the remaining 5 factors, including the length of detention then totaling approximately four months, were 6 neutral. 385 F. Supp. 3d 1099, 1118 (W.D. Wash. 2019); ECF No. 6 at 6–7. The Court 7 concluded that Petitioner's claim was not yet ripe, retained jurisdiction, and Ordered 8 Respondents to report on any changed circumstances by June 30, 2026. Id. at 7. 9 The Status Report states that: (1) Petitioner remains detained at Otay Mesa Detention 10 Center (“OMDC”); (2) the BIA issued a briefing schedule on June 2, 2026, granting both 11 parties until June 24, 2026, to submit briefs; and (3) “the projected timeline for resolution 12 of Petitioner's immigration proceedings is unknown.” ECF No. 7 at 1; ECF No. 7-1. 13 Respondents have not reported any decision by the BIA. See generally ECF No. 7. 14 Petitioner has been detained since December 26, 2025, a period now exceeding 15 seven months, without ever having received an individualized bond hearing. 16 II. LEGAL STANDARD 17 A writ of habeas corpus is “available to every individual detained within the United 18 States.” Hamdi v. Rumsfeld, 542 U.S. 507, 525 (2004) (citing U.S. Const., Art I, § 9, cl. 2). 19 “The essence of habeas corpus is an attack by a person in custody upon the legality of that 20 custody, and . . . the traditional function of the writ is to secure release from illegal 21 custody.” Preiser v. Rodriguez, 411 U.S. 475, 484 (1973). A court may grant a writ of 22 habeas corpus to a petitioner who demonstrates to be in custody in violation of the 23 Constitution or federal law. 28 U.S.C. § 2241(c)(3). Traditionally, “the writ of habeas 24 corpus has served as a means of reviewing the legality of Executive detention, and it is in 25 that context that its protections have been strongest.” I.N.S. v. St. Cyr, 533 U.S. 289, 301 26 (2001). Accordingly, challenges to immigration-related detention are within the purview 27 of a district court's habeas jurisdiction. Zadvydas v. Davis, 533 U.S. 678, 687 (2001); see 28 also Demore v. Kim, 538 U.S. 510, 517 (2003). 1 III. DISCUSSION 2 For the sake of judicial economy, the Court chooses not to reiterate the background 3 facts contained in its May 1st Order. See Kwalar v. Warden, Otay Mesa Detention Center, 4 No. 3:26-CV-2447-JES-BLM, 2026 WL 1195032, at *1 (S.D. Cal., May 1, 2026), the 5 Court, further, elects to follow the reasoning stated therein and incorporates it by reference. 6 Id. at *2-4. 7 A. Renewed Application of the Banda Factors Weigh in Favor of a Bond 8 Hearing 9 As circumstances have changed since the May 1st Order, the Court revisits the Banda 10 factors, in light of the Status Report. Banda, 385 F. Supp. 3d at 1118 (setting forth factors 11 to determine whether a noncitizen’s prolonged detention under 8 U.S.C. § 1225 is 12 unconstitutional: “(1) the total length of detention to date; (2) the likely duration of future 13 detention; (3) the conditions of detention; (4) delays in the removal proceedings caused by 14 the detainee; (5) delays in the removal proceedings caused by the government; and (6) the 15 likelihood that the removal proceedings will result in a final order of removal.”). 16 (1) Length of Detention 17 The first and “the most important factor” weighs in Petitioner’s favor. Id. Petitioner's 18 detention has since grown to more than seven months. “Courts have found detention over 19 seven months without a bond hearing weighs toward a finding that it is unreasonable.” 20 Amado v. United States Dep't of Just., No. 25-CV-2687-LL (DDL), 2025 WL 3079052, at 21 *5 (S.D. Cal. Nov. 4, 2025); see also Sadeqi v. LaRose, 809 F.Supp.3d 1090, 1093 (S.D. 22 Cal. Nov. 12, 2025); Gao v. LaRose, 805 F. Supp. 3d 1106, 1111 (S.D. Cal. 2025). 23 Petitioner's detention has now surpassed the threshold that was dispositive against him in 24 the May 1st Order, and this factor accordingly weighs in his favor. Kwalar, 2026 WL 25 1195032, at *2-3. 26 (2) Likely Duration of Future Detention 27 This factor continues to weigh in Petitioner's favor. Petitioner's BIA appeal remains 28 pending, and the Status Report was not due until June 24, 2026—nearly four months after 1 the appeal was filed. ECF No. 7 at 1; ECF No. 7-1. The Status Report confirms that “the 2 projected timeline for resolution of Petitioner's immigration proceedings is unknown,” and 3 a negative BIA decision would likely prompt Petitioner to seek Ninth Circuit review, a 4 process that “may take up to two years or longer.” Banda, 385 F. Supp. 3d at 1119. If 5 anything, the passage of time since the May 1st Order, without any indication of a resolution 6 date, reinforces this factor's weight in Petitioner's favor. 7 (3) Conditions of Detention 8 This factor continues to weigh heavily in Petitioner's favor for the reasons already 9 stated in the May 1st Order. Kwalar, 2026 WL 1195032, at *2-3. Petitioner remains 10 detained at OMDC, and courts have recognized that OMDC's conditions are 11 “indistinguishable from penal confinement.” Kydyrali v. Wolf, 499 F. Supp. 3d 768, 773 12 (S.D. Cal. 2020); Amado, 2025 WL 3079052, at *6. Nothing in the Status Report suggests 13 any changed circumstances here. ECF No. 7 at 1. 14 (4) Delays Caused by the Detainee; (5) by the Government; and 15 The Status Report does not attribute any delay in the BIA proceedings to either party; 16 the briefing schedule reflects the ordinary course of an administrative appeal. ECF No. 7 17 at 1; ECF No. 7-1. These factors remain neutral. 18 (6) Likelihood of a Final Order of Removal 19 This factor remains neutral. Petitioner's BIA appeal, which challenges the IJ's 20 pretermission of his protection applications and the propriety of Uganda as a designated 21 third country of removal, remains pending and unresolved, and the Court is not in a position 22 to assess the merits of that appeal on this record. 23 In sum, three of the six Banda factors now weigh in Petitioner's favor, conditions of 24 confinement, doing so heavily, and the remainder are neutral. Given that Petitioner's 25 detention now exceeds seven months, with no bond hearing and no identifiable end point 26 to his removal proceedings, the Court finds that Petitioner's continued detention without 27 an individualized bond hearing has become unreasonable and violates due process. Banda, 28 385 F. Supp. 3d at 1120. 1 B. Bond Hearing Procedures 2 Because Petitioner's detention under 8 U.S.C. § 1225(b) has become unreasonably 3 || prolonged, due process requires that he receive an individualized bond hearing before an 4 ||IJ. At that hearing, the burden shall rest with the Government to justify Petitioner's 5 || continued detention by clear and convincing evidence that he poses a flight risk or a danger 6 the community. Singh v. Holder, 638 F.3d 1196, 1203-04 (9th Cir. 2011). 7 IV. CONCLUSION 8 For the reasons discussed above, the Court GRANTS IN PART the Petition and 9 |} ORDERS as follows: 10 (1) Respondents shall provide Petitioner (noncitizen) with an 11 individualized bond hearing before an Immigration Judge within thirty 12 (30) days of the date of this Order; 13 (2) At the bond hearing, the burden shall be on the Government to 14 establish, by clear and convincing evidence, that Petitioner's continued 15 detention is justified because he poses a flight risk or a danger to the 16 community; 17 (3) Respondents shall FILE a Status Report within seven (7) days of the 18 bond hearing including apprising the Court of the results of the hearing; 19 and 20 (4) The Clerk of Court is DIRECTED to CLOSE this case. 21 IT IS SO ORDERED. 22 || Dated: August 12, 2026 24 Honorable James E. Sunmons Jr. 5 United States District Judge 26 27 28 «