Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 WISKENDY FRANCOIS, Case No.: 3:26-cv-02556-BTM-GC 12 Petitioner, ORDER DENYING IN PART AND 13 v. DISMISSING IN PART PETITION FOR HABEAS CORPUS 14 15 CHRISTOPHER LAROSE, Warden, Otay [ECF NO. 1] Mesa Detention Center; TODD M. 16 LYONS, Acting Director, Immigration 17 and Customs Enforcement; and MARKWAYNE MULLIN, Secretary, 18 Department of Homeland Security; TODD 19 BLANCHE, Acting Attorney General, Department of Justice; 20 Respondents. 21 22 23 24 On December 15, 2025, Wiskendy Francois petitioned the Court for a writ of habeas 25 corpus. See Francois v. Warden, No. 25-cv-03635, 2026 WL 146627, at *1 (S.D. Cal. Jan. 26 20, 2026). He had been arrested on February 6, 2025, transferred to the custody of the 27 Department of Homeland Security, and detained pursuant to 8 U.S.C. § 1226(a). Id. After 28 he applied for release, an immigration judge (“IJ”) held a bond hearing on March 18, 2026. 1 Id. The IJ denied Francois’s request for bond, finding that—based on eight traffic-stop 2 violations Francois had accumulated since 2021 and his capias-warrant history—he failed 3 to show that he was not a public safety or bail risk. Id. Francois later requested bond 4 redetermination hearings. In subsequent orders issued on May 13, June 27, and December 5 3, another IJ held that Francois failed to show a material change in circumstances required 6 to reconsider his custody. (ECF No. 8-1, Ex. 2.) See 8 C.F.R. § 1003.19(e). Francois did 7 not appeal these orders to the Board of Immigration Appeals (“BIA”). Francois, 2026 WL 8 146627, at *1. On habeas review, this Court denied in part and dismissed in part Francois’s 9 petition. Id. at *2–4. On April 22, 2026, Francois filed another petition for habeas corpus. 10 (ECF No. 1 (“Pet.”).) Since then, Francois was denied a bond redetermination hearing on 11 May 13, 2026, and granted withholding of removal under the Convention Against Torture 12 on June 5, 2026. (ECF No. 14-4, Ex. D (“May 2026 Denial”); ECF No. 13-1, Ex. A.) The 13 Government appealed the grant of withholding to the BIA on July 1, 2026. (ECF No. 15.) 14 Francois advances several claims in this petition. First, he contends that his 15 detention lasting beyond six months raises “constitutional concerns under the Due Process 16 Clause of the Fifth Amendment.” (Pet., 6.) Second, he claims that the Government has 17 unreasonably delayed his individual hearing for asylum, subjecting him to “indefinite 18 detention.” (Id.) Third, he claims that the Government’s “sole justification for detention” 19 in his initial bond hearing was a dangerousness determination based on eight traffic 20 violations. Because he has been cleared of those citations, he argues he is entitled to a new 21 bond redetermination hearing. (Id.) He also argues that he has suffered irreparable harm 22 in continued detention. (Id. at 7.) 23 The Government does not address the merits of Francois’s petition. Instead, it 24 argues that the Court should deny the petition because Francois has failed to “plead 25 sufficient information” for his new claims or “establish changed circumstances” that show 26 why the Court’s previous order is “no longer valid.” (ECF No. 8, at 3–4.) The Government 27 also argues that the Court should dismiss the petition because Francois has failed to exhaust 28 the administrative remedy of appealing the denials for a bond redetermination hearing to 1 the BIA. (Id. at 4.) The Court agrees with the Government and denies in part and dismisses 2 in part this petition. 3 The Court finds that Francois’s first claim of prolonged detention was adjudicated 4 in the Court’s previous order. Francois argues that Zadvydas v. Davis, 533 U.S. 678 (2001), 5 established that “detention must be related to its purpose,” yet his detention has become 6 “punitive rather than regulatory.” (Pet., 6.) As previously held, “Francois’s detention is 7 related to the purpose of his detention . . . ‘assuring the alien’s presence at removal.”’ 8 Francois, 2026 WL 146627, at *3 (quoting Prieto-Romero v. Clark, 534 F.3d 1053, 1063 9 (9th Cir. 2008)). Because Francois does not present changed circumstances or new 10 arguments for his prolonged detention claim, the Court denies it without prejudice. 11 Regarding the claim that the Government subjected Francois to indefinite detention 12 by unreasonably delaying his individual merits hearing, it was held on May 13, 2026. 13 Francois was denied asylum but granted withholding of removal. Thus, Francois was given 14 an order of removal. See Johnson v. Guzman Chavez, 594 U.S. 523, 540 (2021) (“[T]he 15 order of removal is separate from and antecedent to a grant of withholding of removal.”). 16 He is “not stuck in a ‘removable-but-unremovable limbo,’ as the petitioners in Zadvydas 17 were.” Prieto-Romero, 534 F.3d at 1063 (quoting Jama v. Immigr. & Customs Enf’t, 543 18 U.S. 335, 347 (2005)). The Court finds that Francois’s detention is not impermissibly 19 indefinite at this stage and thus denies the claim without prejudice. 20 Before addressing the merits of Francois’s bond redetermination claim, the Court 21 must determine if he has exhausted his administrative remedies. See Laing v. Ashcroft, 22 370 F.3d 994, 998 (9th Cir. 2004) (“Lower courts are . . . not free to address the underlying 23 merits without first determining the exhaustion requirement has been satisfied or properly 24 waived.”). “[A]s a prudential matter,” the Ninth Circuit requires that “habeas petitioners 25 exhaust available judicial . . . remedies before seeking relief under § 2241.” Id. at 997 26 (second alteration in original) (citation omitted). Here, Francois was required to appeal the 27 denials of his request for a bond redetermination hearing to the BIA. See 8 C.F.R. 28 § 1003.19(f). The Court may waive this prudential requirement if it finds that 1 “administrative remedies are inadequate or not efficacious, pursuit of administrative 2 remedies would be a futile gesture, irreparable injury will result, or the administrative 3 proceedings would be void.” Hernandez v. Sessions, 872 F.3d 976, 988 (9th Cir. 2017) 4 (quoting Laing, 370 F.3d at 988). 5 The Court declines to waive exhaustion here. Francois argues that continued 6 detention is causing irreparable harm to his specialized skills and community connections. 7 (Pet., 7.) Yet he also states that he did not appeal the bond redetermination denials because 8 the “BIA takes 6–12 months to rule.” (Id. at 3.) Had Francois appealed the initial May 9 2025 denial or the subsequent three denials, the BIA may have issued a ruling before the 10 Court and prevented his alleged injury. Francois instead pursued habeas review of the 11 immigration court’s denials ahead of his administrative appeal. “This short cut was 12 improper.” Leonardo v. Crawford, 646 F.3d 1157, 1160 (9th Cir. 2011). Francois goes on 13 to argue that he did not appeal because the “current administration’s purge at the BIA” has 14 made appeals futile. (ECF No. 11 (“The transformation from 60% to 97% pro-government 15 outcomes—achieved through wholesale termination of one administration’s appointees— 16 speaks for itself.”).) The Court is not persuaded by this general argument. “Although 17 Petitioner presents some compelling statistics, the Court is not prepared to find that appeal 18 to any BIA judge is necessarily futile.” Sharma v. Archambrault, No. 26-cv-00513, 2026 19 WL 381611, at *2 (S.D. Cal. Feb. 11, 2026). 20 “[A] district court ordinarily should either dismiss the petition without prejudice or 21 stay the proceedings” until administrative remedies are exhausted. Leonardo, 646 F.3d at 22 1161. Because Francois has not asked for a stay, the Court dismisses this claim without 23 prejudice. 24 The Court notes that the IJ’s most recent denial on May 13, 2026, stated that “the 25 documents submitted were all filed in prior cases in similar requests.” (May 2026 Denial.) 26 On the merits, it appears unlikely that repeated submissions of the same documents would 27 warrant a new bond determination. But Francois was recently granted withholding of 28 removal under the Convention Against Torture. This may constitute a material change in 1 || circumstances pursuant to 8 C.F.R. § 1003.19(e). Until a final order of removal is issued 2 ||and the Government’s removal period begins, Francois may “request another custody 3 redetermination at any time.” Francois, 2026 WL 146627, at *3; see 8 U.S.C. § 1231(a)(1); 4 || Johnson, 594 U.S. at 533 (“§ 1226 governs the detention of aliens until § 1231’s ‘removal 5 || period’ begins.”). 6 In conclusion, Francois’s first claim of prolonged detention and second claim of 7 |\indefinite detention are DENIED without prejudice. His third claim that he is entitled to 8 ||a bond redetermination hearing is DISMISSED without prejudice for lack of exhaustion. 9 IT IS SO ORDERED. Dated: August 31, 2026 j il Jueek Honorable Barry Ted Mosko 12 United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 □ □□