Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 FELIX DOPAZO-BARROSO, Case No.: 3:26-cv-1558-CAB-DEB 12 Petitioner, ORDER: 13 v. (1) PARTIALLY GRANTING A 14 WARDEN OF IMPERIAL REGIONAL WRIT OF HABEAS CORPUS; and DETENTION FACILITY, et al., 15 (2) DENYING MOTION TO 16 Respondents. APPOINT COUNSEL, [Doc. No. 2]. 17 18 Petitioner Felix Dopazo-Barroso (“Petitioner”), an immigration detainee proceeding 19 pro se, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. [Doc. 20 No. 1 (“Petition”).] Petitioner argues that his prolonged detention violates the Due Process 21 Clause of the Fifth Amendment. [Id. at 17–18.] For the following reasons, the Court 22 PARTIALLY GRANTS a writ of habeas corpus and DENIES the motion to appoint 23 counsel. 24 I. BACKGROUND 25 Petitioner is a native and citizen of Cuba who entered the United States in September 26 2017 as a parolee. [Doc. No. 6 at 2.] He has not adjusted his status to that of lawful 27 permanent resident. [Id.] Immigration and Customs Enforcement (“ICE”) took Petitioner 28 1 into immigration custody on May 25, 2025 following his release from a Miami-Dade 2 County Jail. [Id.] ICE concluded that Petitioner was inadmissible and subject to 3 mandatory detention under 8 U.S.C. § 1226(c) due to his criminal record, including an 4 April 10, 2025 controlled substance conviction. [Id.] On March 3, 2026, the immigration 5 judge (“IJ”) denied Petitioner’s applications for relief and ordered him removed to Cuba. 6 [Id.] Petitioner appealed the IJ’s decision to the Board of Immigration Appeals (“BIA”) 7 where briefing was completed on June 26, 2026. [Doc. No. 10.] 8 II. LEGAL STANDARD 9 A writ of habeas corpus challenges the legality of a petitioner’s custody and seeks 10 to secure release from that illegal custody. Under 28 U.S.C. § 2241, a district court may 11 grant a writ of habeas corpus when the petitioner “is in custody in violation of the 12 Constitution or laws or treaties of the United States.” The petitioner bears the burden of 13 demonstrating that he is in illegal custody. See Martinez v. Noem, No. 25-CV-2740-BJC- 14 BJW, 2025 WL 3171738, at *2 (S.D. Cal. Nov. 13, 2025). 15 III. DISCUSSION 16 It is undisputed that Petitioner is subject to detention under 8 U.S.C. § 1226(c)(1)(B) 17 due to his controlled substance conviction. [Doc. No. 6 at 2–3.] The issue before the Court 18 is thus whether, under the circumstances of this case, Petitioner’s detention for over a year 19 under § 1226(c) violates his due process rights. 20 Respondents contend that § 1226(c)(1)(B) mandates Petitioner’s detention until the 21 conclusion of his removal proceedings. In Demore v. Kim, the Supreme Court rejected a 22 facial constitutional challenge to § 1226(c) and affirmed that a noncitizen may be detained 23 thereunder “for the brief period necessary for their removal proceedings.” 538 U.S. 510, 24 513 (2003). However, the Supreme Court did not “foreclose as-applied challenges” to § 25 1226(c). Nielsen v. Preap, 586 U.S. 392, 420 (2019). 26 While the Ninth Circuit has not yet decided whether due process requires a bond 27 hearing for noncitizens detained pursuant to § 1226(c), multiple other circuits have found 28 it does. See Reid v. Donelan, 17 F.4th 1, 7 (1st Cir. 2021) (“[W]e adhere to the notion that 1 the Due Process Clause imposes some form of reasonableness limitation upon the duration 2 of detention under section 1226(c).”) (cleaned up); Black v. Decker, 103 F.4th 133, 149 3 (2d Cir. 2024) (noting that the Demore Court “said nothing about whether due process may 4 eventually require a hearing”) (emphasis in original); German Santos v. Warden, 965 F.3d 5 203, 209–10 (3rd Cir. 2020) (holding that noncitizens detained under § 1226(c) may bring 6 as-applied due process challenges). 7 The Court finds persuasive the reasoning of the Reid, Black, and German Santos 8 courts and incorporates their reasoning here. The Court therefore joins its many sister 9 courts that have likewise held that unreasonably prolonged detention under 8 U.S.C. § 10 1226(c) without a bond hearing violates due process. See Blake v. Mullin, No. 3:26-cv- 11 00844-BTM-SBC, 2026 WL 913130, at *2 (S.D. Cal. Apr. 2, 2026) (collecting cases) 12 (citation omitted). The Court now turns to whether Petitioner’s detention has become 13 unreasonably prolonged. 14 Though there is no brightline test for a violation, this Court and many others have 15 used the Banda test which considers the following six factors to determine when detention 16 becomes unreasonably prolonged and violates due process: (1) the total length of detention 17 to date, which is the most important factor; (2) the likely duration of future detention; (3) 18 the conditions of detention; (4) delays in removal proceedings caused by the detainee; (5) 19 delays in removal proceedings caused by the government; and (6) the likelihood that the 20 removal proceedings will result in a final order of removal. Banda v. McAleenan, 385 F. 21 Supp. 3d 1099, 1106 (W.D. Wash. 2019). 22 The first factor weighs in Petitioner’s favor given that he has been detained for over 23 a year. See Sibomana v. LaRose, No. 22-CV-933-LL-NLS, 2023 WL 3028093, at *4 (S.D. 24 Cal. Apr. 20, 2023) (finding that courts are typically wary of continued custody without a 25 bond hearing when detention extends beyond one year). Regarding the second factor, 26 which consists of the “anticipated duration of all removal proceedings—including 27 administrative and judicial appeals[,]” Banda, 385 F. Supp. 3d at 1119, Petitioner’s appeal 28 to the BIA remains pending, and the “undetermined, but likely significant, period of 1 mandatory detention through the appeals process” weighs in favor of Petitioner. Gao v. 2 LaRose, 805 F. Supp. 3d 1106, 1111 (S.D. Cal. 2025). As to the third Banda factor, 3 Petitioner’s confinement is similar to penal confinement because, as the Court explained 4 with respect to the petitioner in L.R.G. v. LaRose, who was also detained at Otay Mesa 5 Detention Center, Petitioner is detained “in a secure facility, guarded by armed personnel, 6 and has restricted access to outdoor space, activities, and communication.” No. 3:25-CV- 7 3490-CAB-MSB, Doc. No. 13, at *8 (S.D. Cal. January 16, 2026). Thus, the third factor 8 favors Petitioner. 9 As to the fourth and fifth factors, there is no evidence either side has caused any 10 delays. The Court finds these two factors are effectively neutral. Finally, the Court finds 11 the sixth factor neutral as it is unclear what the result of Petitioner’s removal proceedings 12 will be. 13 In sum, factors one (the most important), two, and three weigh for Petitioner, while 14 factors four, five, and six are neutral. The Court thus concludes that Petitioner’s continued 15 mandatory detention under § 1226(c) without a bond hearing violates his right to due 16 process.1 Petitioner is entitled to a prompt and individualized bond hearing before an 17 immigration judge. 18 IV. CONCLUSION 19 Based on the foregoing, the Court finds that Petitioner’s prolonged detention without 20 a bond hearing violates the Due Process Clause of the Fifth Amendment. The Court 21 therefore PARTIALLY GRANTS the writ of habeas corpus and ORDERS Respondents 22 to provide Petitioner an individualized bond hearing by August 26, 2026, unless Petitioner 23 requests a continuance. The government bears the burden of establishing by clear and 24 25 1 Respondents contend that the Court should use the test in Lopez v. Garland, 631 F. Supp. 3d 870, 879 26 (E.D. Cal. 2022). [Doc. No. 6 at 7.] “Whether the Court considers the issue under the test from Mathews v. Eldridge, 424 U.S. 319 (1976), Lopez v. Garland, 631 F. Supp. 3d 870, 879 (E.D. Cal. 2022), or Banda 27 v. Nielsen, 385 F. Supp. 3d 1099 (W.D. Wash. 2019), the result would be the same. Petitioner's detention is prolonged and can continue for many more months or years.” Blake v. Mullin, No. 3:26-CV-00844- 28 1 |}convincing evidence that Petitioner is a flight risk or a danger to the community. See 2 || Maldonado-Romero v. Warden of Imperial Reg'l Det. Facility, No. 3:26-CV-02366-RBM- 3 SBC, 2026 WL 1333758, at *4 (S.D. Cal. May 13, 2026). If requested by Petitioner, 4 || Respondents shall assist Petitioner in obtaining an audio recording of the bond hearing. 5 The motion to appoint counsel is DENIED as MOOT. 6 The Clerk of the Court shall close the case. 7 Itis SO ORDERED. 8 || Dated: August 12, 2026 ( (jp —— 9 Hon. Cathy Ann Bencivengo 10 United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28