Opinion

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 SOUTHERN DISTRICT OF CALIFORNIA 8 9 YANDY ERNESTO MACHIN-ROSAL, Case No.: 3:26-cv-02796-RBM-AHG 10 Petitioner, ORDER GRANTING SECOND 11 v. AMENDED PETITION FOR WRIT OF HABEAS CORPUS 12 MARKWAYNE MULLIN, et al., 13 Respondents. [Doc. 15] 14 15 16 Pending before the Court is Petitioner Yandy Ernesto Machin-Rosal’s (“Petitioner”) 17 Second Amended Petition for Writ of Habeas Corpus (“Second Amended Petition”) 18 pursuant to 28 U.S.C. § 2241. (Doc. 15.) For the reasons set forth below, the Second 19 Amended Petition is GRANTED. 20 I. BACKGROUND 21 A. Factual Background1 22 Petitioner is a citizen of Cuba who came to the United States in 2009 and became a 23 lawful permanent resident. (Doc. 9-1 [Decl. of Yandy Ernesto Machin-Rosal (“Machin- 24 Rosal Decl.”)] ¶¶ 1–2; Doc. 11-1 at 4.) Between June 14, 2019 and February 5, 2025, 25 Petitioner was arrested for the following: “False Statement to Obstruct Police;” 26 27 28 1 “Use/Possess Drug Paraphernalia;” “Possess/Receive Stolen Vehicle;” “Battery Domestic 2 Violence;” “Trespass (dismissed);” “False Statement to Obstruct Police Officer;” “Battery 3 with a Deadly Weapon and Conspiracy to Commit Battery with a Deadly Weapon.” 4 (Doc. 11-1 at 4.) 5 On November 3, 2025, Petitioner was ordered removed to Cuba. (Doc. 11-1 at 7– 6 10.) On November 17, 2025, Petitioner was physically removed to Mexico. (Doc. 11-1 at 7 12.) Petitioner attests that he “was sent to the border with Mexico and forced to walk across 8 the border.” (Machin-Rosal Decl. ¶ 5.) Petitioner was kidnapped while in Mexico and 9 later reentered the United States. (Id. ¶¶ 5–6.) On January 16, 2026, Border Patrol agents 10 encountered Petitioner near Boulevard, California and determined that he had illegally re- 11 entered the United States. (Doc. 11-1 at 3–4.) Petitioner was “referred for prosecution 12 under 8 U.S.C. § 1326(a).” (Id. at 4.) On April 10, 2026, “the government moved to 13 dismiss the case against [Petitioner] . . . in the interests of justice,” and Judge Huie granted 14 the motion to dismiss. (Doc. 9 at 3.) After the dismissal, Petitioner was brought back to 15 immigration detention at Otay Mesa Detention Center. (Id.) 16 On April 14, 2026, the Department of Homeland Security issued Petitioner a Notice 17 of Intent / Decision to Reinstate Prior Order under Immigration and Nationality Act 18 § 241(a)(5). (Doc. 11-1 at 12.) On May 15, 2026, Immigration and Customs Enforcement 19 (“ICE”) “reinstated the prior removal order as a final order of removal” and placed 20 Petitioner into custody pursuant to 8 U.S.C. § 1231(a). (Doc. 11 at 2; Doc. 11-1 at 14–15.) 21 “About a month ago, an ICE agent spoke to [Petitioner] and asked him if he wanted to be 22 removed to Mexico.” (Doc. 15 at 3 (citing Doc. 15-1 [Second Decl. of Yandy Ernesto 23 Machin-Rosal (“Second Machin-Rosal Decl.”)] ¶¶ 2–4).) Petitioner told the agent that “he 24 did not consent to be removed to Mexico.” (Id.) “No other information has been provided 25 to [Petitioner] regarding ICE’s efforts to remove him.” (Id.) 26 B. Procedural Background 27 Petitioner, initially proceeding pro se, filed his original Petition on April 30, 2026. 28 (Doc. 1.) The Court appointed Federal Defenders of San Diego, Inc. as counsel and set a 1 briefing schedule. (Doc. 4.) On May 20, 2026, Petitioner filed his Amended Petition. 2 (Doc. 9.) The Amended Petition was fully briefed on June 3, 2026, and the Court granted 3 in part and denied in part the Amended Petition on June 15, 2026. (See Docs. 11–14.) In 4 that Order, the Court denied Petitioner’s Zadvydas v. Davis, 533 U.S. 678 (2001) claim 5 because Petitioner’s detention was mandated under 8 U.S.C. § 1231(a) until August 13, 6 2026. (Doc. 13 at 7.) The Court authorized Petitioner to file a Second Amended Petition 7 if he had not been removed after that date. (Id.) After the 90-day mandatory detention 8 period expired, Petitioner filed the Second Amended Petition. (Doc. 15.) On August 25, 9 2026, Respondents filed their Return. (Doc. 19.) On September 1, 2026, Petitioner filed 10 his Traverse. (Doc. 20.) 11 II. LEGAL STANDARD 12 A writ of habeas corpus is “available to every individual detained within the United 13 States.” Hamdi v. Rumsfeld, 542 U.S. 507, 525 (2004) (citing U.S. Const., Art. I, § 9, cl. 2). 14 “The essence of habeas corpus is an attack by a person in custody upon the legality of that 15 custody, and . . . the traditional function of the writ is to secure release from illegal 16 custody.” Preiser v. Rodriguez, 411 U.S. 475, 484 (1973). “Writs of habeas corpus may 17 be granted by the Supreme Court, any justice thereof, the district courts and any circuit 18 judge within their respective jurisdictions.” 28 U.S.C. § 2241(a). The petitioner bears the 19 burden of demonstrating that “[h]e is in custody in violation of the Constitution or laws or 20 treaties of the United States.” Id. § 2241(c)(3). 21 III. DISCUSSION 22 Petitioner argues that his detention violates Zadvydas v. Davis, 533 U.S. 678 (2001), 23 because there is no significant likelihood of his removal in the reasonably foreseeable 24 future. (Doc. 15 at 2–8.) Respondents argue that: (1) Petitioner’s detention still falls within 25 the six month presumptively reasonable detention period; (2) ICE is making progress in 26 securing Petitioner’s removal, as only a few weeks have passed since Cuba declined 27 repatriation; and (3) “Petitioner’s conduct in reusing to leave the United States [to Mexico] 28 is akin to an individual who seeks to undermine and frustrate the removal process by failing 1 to cooperate with ICE.” (Doc. 19 at 3–7.) The Court agrees with Petitioner. 2 Section 1231(a) “authorizes the detention of noncitizens who have been ordered 3 removed from the United States.” Johnson v. Arteaga-Martinez, 596 U.S. 573, 575 (2022). 4 Under this statute, a noncitizen ordered removed must be detained for 90 days pending the 5 government’s efforts to secure the noncitizen’s removal. 8 U.S.C. § 1231(a)(2). Section 6 1231(a)(6) “authorizes further detention if the Government fails to remove the [noncitizen] 7 during those 90 days.” Zadvydas, 533 U.S. at 682. This further detention, however, is 8 limited to “a period reasonably necessary to bring about [the noncitizen’s] removal from 9 the United States” and “does not permit indefinite detention.” Id. at 689. “Once removal 10 is no longer reasonably foreseeable, continued detention is no longer authorized by 11 statute.” Id. at 701 (citation modified). In that case, the noncitizen’s release “may and 12 should be conditioned on any of the various forms of supervised release that are appropriate 13 in the circumstances, and the [noncitizen] may no doubt be returned to custody upon a 14 violation of those conditions.” Id. at 700. 15 1. Presumption of Reasonableness 16 Respondents argue that the Petition must be dismissed because Petitioner’s detention 17 still falls within the six months of post-removal confinement that Zadvydas found to be 18 presumptively reasonable. (Doc. 19 at 3–5.) Petitioner argues that he may challenge his 19 detention as unconstitutional because the 90-day statutory removal period has expired and 20 circumstances here justify rebutting the presumption of reasonableness. (Doc. 15 at 4–6.) 21 In Zadvydas, the Supreme Court recognized a six-month presumptively reasonable 22 period of detention after a noncitizen’s removal order becomes final. 533 U.S. at 701. 23 “After this 6-month period, once the [noncitizen] provides good reason to believe that there 24 is no significant likelihood of removal in the reasonably foreseeable future, the 25 Government must respond with evidence sufficient to rebut that showing.” Id. The 26 Supreme Court later clarified its holding in Zadvydas and explained that: 27 Zadvydas did not hold that the statute authorizes detention until it approaches constitutional limits; it held that, since interpreting the statute to authorize 28 1 indefinite detention (one plausible reading) would approach constitutional limits, the statute should be read (in line with the other plausible reading) to 2 authorize detention only for a period consistent with the purpose of 3 effectuating removal. . . . If [it] were, as the Government seems to believe, free to ‘interpret’ statutes as becoming inoperative when they ‘approach 4 constitutional limits,’ [the Supreme Court] would be able to spare [itself] the 5 necessity of ever finding a statute unconstitutional as applied.

6 Clark v. Martinez, 543 U.S. 371, 384 (2005) (emphasis added). 7 Multiple district courts have found that the six-month presumption is rebuttable. See 8 Hoang Trinh v. Homan, 333 F. Supp. 3d 984, 994 (C.D. Cal. 2018) (“The Supreme Court 9 in Zadvydas outlined a ‘guide’ for approaching these detention challenges . . . not a 10 prohibition on claims challenging detention less than six months.”) (quoting Zadvydas, 533 11 U.S. at 700–01); Trinh v. Homan, 466 F. Supp. 3d 1077, 1092 (C.D. Cal. 2020) (“At no 12 point did the Zadvydas Court preclude a noncitizen from challenging their detention before 13 the end of the presumptively reasonable six-month period.”); Huan v. Noem, Case No.: 26- 14 CV-512 JLS (DEB), 2026 WL 412609, at *2 (S.D. Cal. Feb. 13, 2026) (collecting cases); 15 Clark, 543 U.S. at 387 (O’Connor, J., concurring) (“[T]he 6-month presumption . . . in 16 Zadvydas . . . , is just that—a presumption.”). Under Respondents’ proposed interpretation 17 of this regulation, “the Government would be permitted to detain noncitizens ordered 18 removed for up to six months even when their removal is impossible.” Zavvar v. Scott, 19 Civil Action No. 25-2104-TDC, 2025 WL 2592543, at *5 (D. Md. Sept. 8, 2025). The 20 Court agrees with these courts’ reasoning and finds that the six–month presumption in 21 Zadvydas is rebuttable. 22 The Court also finds that Petitioner has rebutted the six-month presumption here. 23 He claims that he cannot be removed to Cuba because “there is no repatriation agreement 24 between the United States and Cuba for those who, like [Petitioner], entered prior to 2017.” 25 (Doc. 15 at 7 (citing Doc. 9 at 10–11 (citing a 2017 joint statement signed by Cuba and the 26 United States)).) He also claims that he cannot be removed to Mexico because Mexico 27 will not accept citizens of other countries without their consent to being removed to 28 Mexico. (Id. (citing Gaceran-Jimenez v. Marin, Case No.: 5:26-cv-01973-BFM, 2026 WL 1 2262177, at *2–3 (C.D. Cal. Aug. 5, 2026) and Arenado-Borges v. Bondi, CASE NO. 2:25- 2 cv-02193-JNW, 2025 WL 3687518, at *4 (W.D. Wash. Dec. 19, 2025)).) Petitioner attests 3 that he will not consent to being removed to Mexico because the last time he was removed 4 to Mexico, he was kidnapped. (Machin-Rosal Decl. ¶¶ 5–6; Second Machin-Rosal Decl. 5 ¶ 2.) For these reasons, the Court finds that Petitioner has rebutted the presumption of 6 reasonableness. Accord Gaceran-Jimenez, 2026 WL 2262177, at *3 (concluding the same 7 under nearly identical circumstances). 8 2. Significant Likelihood of Removal in the Reasonably Foreseeable Future 9 As Petitioner has rebutted the six-month presumption and “provide[d] good reason 10 to believe that there is no significant likelihood of removal in the reasonably foreseeable 11 future,” the burden shifts to Respondents to “respond with evidence sufficient to rebut that 12 showing.” Zadvydas, 533 U.S. at 701. Respondents have not met their burden. They 13 represent that “ICE ERO requested removal to Cuba but, on August 4, 2026, Cuba declined 14 [Petitioner’s] repatriation.” (Doc. 19 at 5 (citing Decl. of Martin Parsons (“Parsons Decl.”) 15 ¶ 12).) Officer Parsons attests that “ERO is looking to remove Petitioner to a third country 16 and is currently working on identifying a third country for removal.” (Id. ¶ 13.) 17 But courts in this District, including this Court, have found that the Government 18 failed to meet its burden on facts far more favorable to them than those present here. See, 19 e.g., Phan v. Warden of Otay Mesa Det. Facility, 813 F. Supp. 3d 1179, 1186–87 (S.D. 20 Cal. 2025) (holding that the Government failed to sufficiently rebut even though it had 21 already submitted a travel document request to ICE headquarters because it “conceded that 22 the travel document request had yet to be submitted to Vietnam, provided no estimate for 23 when it would be submitted, and provided no estimate for how long it would take for 24 Vietnam to respond”) (citation modified); Conchas-Valdez v. Casey, No. 25-cv-02469- 25 DMS-JLB, 2025 WL 2884822, at *3 (S.D. Cal. Oct. 6, 2025) (“[T]he Government’s 26 minimal work on this case—one resettlement request and two follow up emails over the 27 course of seven months—[does] not instill confidence that it will be able to secure [the 28 petitioner’s] removal in the reasonably foreseeable future.”); Alkhafaji v. Mullin, Case No.: 1 3:26-cv-02262-RBM-BJW, 2026 WL 1862613, at *4–5 (S.D. Cal. June 29, 2026) (holding 2 that the Government failed to sufficiently rebut because it had “not identified a third 3 country to which they plan to remove Petitioner, much less a travel document or . . . an 4 estimate for how long it would take for the third country to respond”). Even if ICE were 5 to identify a third country, Petitioner’s removal to that country would still require the 6 affirmative assent of the receiving country. See 8 U.S.C. § 1231(b)(2)(E)(vii). And even 7 then, Petitioner’s removal would be unlikely in the “reasonably foreseeable future” because 8 he would be “entitled to raise a fear-based challenge to his removal to any other country 9 than [Cuba], resulting in potentially additional, lengthy proceedings.” Ndandu v. Noem, 10 819 F. Supp. 3d 1155, 1162 (S.D. Cal. 2026) (citation modified). 11 Respondents also argue that Petitioner’s refusal to consent to removal to Mexico 12 should be fatal to his Zadvydas claim. (Doc. 19 at 6–7.) Specifically, they argue that 13 “Petitioner’s conduct in refusing to leave the United States is akin to an individual who 14 seeks to undermine and frustrate the removal process by failing to cooperate with ICE.” 15 (Id. (citing Pelich v. INS, 329 F.3d 1057, 1060 (9th Cir. 2003) (“Unlike the [noncitizens] 16 in Zadvydas, Pelich has the keys to freedom in his pocket and could likely effectuate his 17 removal by providing the information requested by INS.”).) 18 “Under Ninth Circuit law, a noncitizen ‘who impedes [ ] removal efforts has not met 19 his burden of showing that there is no significant likelihood of removal in the reasonably 20 foreseeable future.’” Batista v. Mullin, Case No.: 3:26-cv-04052-JO-JAC, ECF No. 12 21 (S.D. Cal. Aug. 31, 2026) (quoting Pelich, 329 F.3d at 1060 (finding a Polish native 22 impeded removal efforts when he refused to fill out a Polish passport and provided 23 “conflicting information regarding his name, his parents’ names, his parents’ birthplaces 24 and residences, his birthplace and his nationality”)). But these impediments “pertain[] only 25 to intentionally obstructionist, bad faith tactics that are designed to frustrate the 26 government’s attempts to effectuate a removal order.” Diouf v. Mukasey, 542 F.3d 1222, 27 1232 (9th Cir. 2008); see also Lema v. INS, 341 F.3d 853, 855–56 (9th Cir. 2003) (finding 28 an Ethiopian native impeded removal efforts when he falsely represented to the Ethiopian 1 consulate that he was Eritrean, thereby preventing his removal to Ethiopia); Zerai v. Noem, 2 No. 5:26-cv-00972-AYP, 2026 WL 145931, at *7 (C.D. Cal. May 14, 2026) (“Failure to 3 self-deport does not equal a failure to assist with securing travel documents.”); Seretse- 4 Khama v. Ashcroft, 215 F. Supp. 2d 37, 51 (D.D.C. 2002) (finding no impediment to 5 removal where the petitioner “honestly told the Consul that he did not want to return to 6 Liberia”); Batista, Case No.: 3:26-cv-04052-JO-JAC, ECF No. 12 (“By truthfully 7 informing officials that he did not want to go to Mexico, [the petitioner] has not engaged 8 in the type of bad faith obstructionist conduct that would preclude Zadvydas relief.”). 9 Here, Petitioner has not lied about his country of origin, see Lema, 341 F.3d at 855– 10 56, or refused to apply for travel documents to his country of origin, see Pelich, 329 F.3d 11 at 1060, such that his bad faith efforts have caused his inability to be removed. Rather, he 12 merely explained that he did not consent to removal to Mexico, and as a result did not 13 satisfy Mexico’s voluntariness requirement for third-country deportees. See Gaceran- 14 Jimenez, 2026 WL 2262177, at *3 (noting “[t]he consensus among the federal courts of 15 this Circuit is that . . . Mexico refuses to accept citizens of countries other than Mexico 16 who do not consent to removal to Mexico”); Abramian v. Bondi, 820 F. Supp. 3d 1050, 17 1059 (C.D. Cal. 2026) (finding that “Pelich and Lema do not compel denial” where the 18 petitioners objected to being removed to Eritrea, “a third country with which they have no 19 connections and in which they fear harm”). 20 In summary, Petitioner has established that his removal is not significantly likely in 21 the reasonably foreseeable future. Respondents have not sufficiently rebutted that 22 showing. Therefore, Petitioner’s detention is no longer reasonable or authorized by statute. 23 IV. CONCLUSION 24 For the foregoing reasons, the Second Amended Petition (Doc. 15) is GRANTED. 25 Respondents are ORDERED to immediately release Petitioner from custody, subject to 26 “appropriate conditions” of supervision to be determined by immigration authorities and 27 in accordance with applicable statutory and regulatory procedures. See Zadvydas, 533 U.S. 28 at 700; Vlasov v. Bondi, Case No.: 25-cv-1342-AJB-MSB, 2025 WL 2258582, at *3 (S.D. 1 || Cal. Aug. 7, 2025). 2 IT IS SO ORDERED. 3 || DATE: September 3, 2026 : er iorreds, Mpeg □ 5 HON. RUTH BERMUDEZ MONTENEGRO UNITED STATES DISTRICT JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28