Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 VIANEY HERNANDEZ-DIAZ, Case No.: 26-CV-4261 JAO (GC)

12 Petitioner, ORDER GRANTING IN PART 13 v. PETITION FOR WRIT OF HABEAS CORPUS 14 PATRICK DIVVER, Field Office Director of Enforcement and Removal 15 (ECF No. 1) Operations, San Diego Field Office, 16 Immigrations and Customs Enforcement, et al., 17 Respondents. 18 19 Before the Court is Vianey Hernandez-Diaz’s Petition for Writ of Habeas Corpus 20 pursuant to 28 U.S.C. § 2241 (ECF No. 1). Also before the Court is Respondents Patrick 21 Divver’s (Director of Enforcement and Removal Operations, San Diego Field Office, 22 Immigration and Customs Enforcement (“ICE”)), Christopher J. LaRose’s (Warden of 23 Otay Mesa Detention Facility), and the Department of Homeland Security’s (“DHS”) 24 (collectively, “Respondents” or the “Government”) Return to the Petition (ECF No. 4). 25 For the following reasons, the Court GRANTS IN PART the Petition. 26 BACKGROUND 27 Petitioner is a citizen of Mexico who has been in immigration detention since July 28 1 Courts have taken the position that they lack jurisdiction to order release of people held 2 pursuant to 8 U.S.C. § 1225(b). See id. ¶ 6. 3 LEGAL STANDARD 4 A federal prisoner challenging the execution of his or her sentence, rather than the 5 legality of the sentence itself, may file a petition for writ of habeas corpus in the district 6 of his confinement pursuant to 28 U.S.C. § 2241. See 28 U.S.C. § 2241(a). The sole 7 judicial body able to review challenges to final orders of deportation, exclusion, or 8 removal is the court of appeals. See generally 8 U.S.C. § 1252; see also Alvarez–Barajas 9 v. Gonzales, 418 F.3d 1050, 1052 (9th Cir. 2005) (citing REAL ID Act, Pub. L. No. 109- 10 13, 119 Stat. 231, § 106(a)). However, for claims challenging ancillary or collateral 11 issues arising independently from the removal process—for example, a claim of 12 indefinite detention—federal habeas corpus jurisdiction remains in the district court. 13 Nadarajah v. Gonzales, 443 F.3d 1069, 1076 (9th Cir. 2006), abrogated on other 14 grounds by Jennings v. Rodriguez, 583 U.S. 281 (2018); Alvarez v. Sessions, 338 F. 15 Supp. 3d 1042, 1048–49 (N.D. Cal. 2018) (citations omitted). 16 DISCUSSION 17 Petitioner argues that he is entitled to a bond hearing as a member of the Bond 18 Eligible Class certified in Maldonado Bautista v. Santacruz, --- F. Supp. 3d ---, 2025 WL 19 3288403 (C.D. Cal. Nov. 25, 2025) (“Bautista”). See ECF No. 1 ¶¶ 1–2. Respondents 20 concede that Petitioner appears to be a member of the Bautista class. See ECF No. 4 at 1. 21 And while the Ninth Circuit stayed the application of Bautista beyond the Central District 22 of California, Respondents recognize that courts in this district have ordered bond 23 hearings in similar cases. See id. “Respondents therefore do not oppose an order from 24 this Court directing a bond hearing be held pursuant to 8 U.S.C. § 1226(a).” Id. 25 The Court concludes that Petitioner is entitled to a bond hearing under 8 U.S.C. § 26 1226(a). See, e.g., Esquival-Ipina v. LaRose, 812 F. Supp. 3d 1073, 1080–81 (S.D. Cal. 27 2025); Garcia Garcia v. Mullin, 2026 WL 1303159, at *1 (S.D. Cal. May 12, 2026) 28 (acknowledging Bautista and ordering bond hearing). I CONCLUSION 2 Based on the foregoing, the Court GRANTS IN PART and DENIES IN PART 3 Petition for Writ of Habeas Corpus (ECF No. 1), and ORDERS Respondents to 4 || provide Petitioner with an individualized bond hearing within fourteen (14) days before a 5 neutral immigration judge in which the Government bears the burden of establishing by 6 and convincing evidence that Petitioner is a danger to the community or a flight risk 7 ||ifreleased.! If no hearing occurs within fourteen days of this Order, Petitioner shall be 8 ||released from Respondents’ custody. The Court DENIES Petitioner’s request for release 9 || from detention without prejudice but notes that 1f 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 (May 18, 2026); Perez Velasquez v. Bondi, 2026 12 || WL 1042479, at *6—7 (S.D. Cal. Apr. 16, 2026). The Parties SHALL file a Joint Status 13 || Report by September 2, 2026, informing the Court of the outcome of the hearing.” 14 IT IS SO ORDERED. 15 ||Dated: August 18, 2026 16 . AOA PA 19 Not Jill A. Otake 2 ais United States District Judge 21 22 23 00 25 ||! See, e.g., Barrera v. LaRose, 2026 WL 475358, at *1 n.3 (S.D. Cal. Feb. 19, 2026) (concluding that 26 the Government bears the burden on a bond hearing of a Bautista class member). 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 9. 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).