Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MANH TUAN NGUYEN, Case No.: 26-cv-3067-BJC-BJW 12 Petitioner, ORDER GRANTING IN PART PETITION FOR WRIT OF HABEAS 13 v. CORPUS 14 MARKWAYNE MULLIN, et al., 15 Respondents. 16 17 Pending before the Court is Petitioner Manh Tuan Nguyen’s Petition for a Writ of 18 Habeas Corpus pursuant to 28 U.S.C. § 2241. ECF No. 1. Petitioner asserts his continued 19 detention exceeds statutory authority and violates the due process clause of the United 20 States Constitution. ECF No. 1. Petitioner requests that this Court assume jurisdiction over 21 the matter, grant the Petition and order Respondents to release him from custody or 22 schedule a bond hearing before an immigration judge. 23 I. BACKGROUND 24 Petitioner is a native and citizen of Vietnam, who entered the United States without 25 inspection through the San Ysidro Point of Entry, California, on November 10, 2025. 26 Petitioner did not have valid entry documents to enter the United States and had not been 27 admitted or paroled into the United States. He was determined to be inadmissible under 8 28 1 U.S.C. § 1225(b)(1). He was taken into Immigration and Customs Enforcement (ICE) 2 custody. An asylum officer interviewed Petitioner pursuant to 8 U.S.C. § 1225(b)(1)(B) 3 and found Petitioner to have a credible fear of persecution. 4 Petitioner has applied for relief from removal before an immigration judge, including 5 asylum under 8 U.S.C. § 1158 and withholding of removal under 8 U.S.C. § 1231(b)(3). 6 The first master calendar hearing was scheduled for December 22, 2025. The merits 7 hearing was held on April 27, 2026. An immigration judge ordered Petitioner removed to 8 Vietnam. Petitioner has appealed the removal order to the Board of Immigration Appeals 9 (BIA). As a result, there is no administratively final order of removal. Petitioner has 10 remained in ICE custody since his entry into the United States. 11 II. LEGAL STANDARD 12 A federal prisoner challenging the execution of his or her sentence, rather than the 13 legality of the sentence itself, may file a petition for writ of habeas corpus in the district of 14 his confinement pursuant to 28 U.S.C. § 2241. See 28 U.S.C. § 2241(a). The sole judicial 15 body able to review challenges to final orders of deportation, exclusion, or removal is the 16 court of appeals. See generally 8 U.S.C. § 1252; see also Alvarez–Barajas v. Gonzales, 418 17 F.3d 1050, 1052 (9th Cir. 2005) (citing REAL ID Act, Pub. L. No. 109-13, 119 Stat. 231, 18 § 106(a)). However, for claims challenging ancillary or collateral issues arising 19 independently from the removal process—for example, a claim of indefinite detention— 20 federal habeas corpus jurisdiction remains in the district court. Nadarajah v. Gonzales, 443 21 F.3d 1069, 1076 (9th Cir. 2006), abrogated on other grounds by Jennings v. Rodriguez, 22 III. DISCUSSION 23 A. Jurisdiction 24 Respondents argue that this Court lacks jurisdiction under 8 U.S.C. § 1252(g) 25 because Petitioner’s claim arises from the decision to commence removal proceedings. 26 ECF No. 5 at 3-4. The Court disagrees. 27 Section 1252(g) provides that “no court shall have jurisdiction to hear any cause or 28 claim by or on behalf of any alien arising from the decision or action by the Attorney 1 General to commence proceedings, adjudicate cases, or execute removal orders against any 2 alien under this chapter.” 8 U.S.C. § 1252(g). Section 1252(g) should be read “narrowly” 3 as to apply “only to three discrete actions that the Attorney General may take: her ‘decision 4 or action’ to ‘commence proceedings, adjudicate cases, or execute removal orders.’” 5 Ibarra-Perez v. United States, No. 24-631, 2025 WL 2461663, at *6 (9th Cir. Aug. 27, 6 2025) (quoting Reno v. American-Arab Anti-Discrimination Committee, 525 U.S. 471, 482, 7 487 (1999)). Section 1252(g) “does not prohibit challenges to unlawful practices merely 8 because they are in some fashion connected to removal orders.” Id. at *7. Section 1252(g) 9 does not bar due process claims. Walters v. Reno, 145 F.3d 1032, 1052–53 (9th Cir. 1998) 10 (finding that the petitioners’ objective was not to review the merits of their proceeding, but 11 rather “to enforce their constitutional rights to due process in the context of those 12 proceedings”). 13 Here, Petitioner does not challenge the decision to commence removal proceedings 14 or any act to adjudicate or execute a removal order. Instead, Petitioner is challenging his 15 prolonged detention without a bond hearing. Petitioner is enforcing his “constitutional 16 rights to due process in the context of the removal proceedings—not the legitimacy of the 17 removal proceedings or any removal order.” Garcia v. Noem, No. 25-CV-2180-DMS- 18 MMP, 2025 WL 2549431, at *4 (S.D. Cal. Sept. 3, 2025). Accordingly, § 1252(g) does not 19 divest the Court of jurisdiction. 20 B. Merits 21 “Neither the Ninth Circuit nor the Supreme Court have provided guidance regarding 22 the point at which an immigration detainee’s prolonged mandatory detention becomes 23 unconstitutional.” Amado v. United States Dep’t of Just., No. 25CV2687-LL(DDL), 2025 24 WL 3079052, at *5 (S.D. Cal. Nov. 4, 2025). However, “[n]early all district courts that 25 have considered [the constitutionality of prolonged mandatory detention] agree that 26 prolonged mandatory detention pending removal proceedings, without a bond hearing, 27 will—at some point—violate the right to due process.” Singh v. Barr, 400 F. Supp. 3d 1005 28 (S.D. Cal. 2019) (internal quotation marks and citations omitted) (cleaned up) (collecting 1 cases). To determine whether continued mandatory detention without a bond hearing has 2 become unreasonable, “the Court will look to the total length of detention to date, the likely 3 duration of future detention, and the delays in the removal proceedings caused by the 4 petitioner and the government.” Lopez v. Garland, 631 F. Supp. 3d 870, 879 (E.D. Cal. 5 2022). 6 First, Petitioner has been detained since November 10, 2025, a period of nine 7 months. Under the circumstances of the present case, the length of detention without a bond 8 hearing weighs in favor of Petitioner. See Hoyos Amado, 2025 WL 3079052, at *5 (“Courts 9 have found detention over seven months without a bond hearing weighs toward a finding 10 that it is unreasonable.”) (collecting cases); Tonoyan v. Andrews, No. 1:25-CV-00815-SKO 11 (HC), 2025 WL 3013684, at *4 (E.D. Cal. Oct. 28, 2025) (“Petitioner has been detained 12 approximately 11 months. This period ... qualifies as prolonged.”); Gao, 2025 WL 13 2770633, at *5 (“The Court finds that Petitioner's detention for over 10 months without a 14 bond hearing, in the context of the specific circumstances described above, has become 15 unreasonable and violates due process.”); Lopez v. Garland, 631 F. Supp. 3d 870, 879 (E.D. 16 Cal. 2022) (“Petitioner has been in immigration detention ... approximately one year. 17 District court have found shorter lengths of detention ... without a bond hearing to be 18 unreasonable.”) (collecting cases). 19 Next, Petitioner has an appeal to the BIA pending which makes it uncertain, at best, 20 how long his detention will last. See Masood v. Barr, No. 19-CV-07623-JD, 2020 WL 21 95633, at *3 (N.D. Cal. Jan. 8, 2020) (noting that the “government cannot predict with any 22 degree of confidence when the BIA appeal will be resolved”). Therefore, this factor weighs 23 in favor of Petitioner. Finally, neither the government nor Petitioner appear to have caused 24 delays in the removal proceedings, making this factor neutral. 25 In sum, the circumstances here weigh in favor of Petitioner’s right to a prompt and 26 individualized bond hearing at which Respondents must justify his continued detention by 27 a showing of clear and convincing evidence that he would likely flee or pose a danger to 28 the community if released. l IV. CONCLUSION AND ORDER 2 For the foregoing reasons, the Court GRANTS the petition for a writ of habeas 3 ||corpus. Respondents shall provide Petitioner with a constitutional adequate bond hearing 4 ||no later than September 18, 2026. Respondents are enjoined from transferring Petitioner 5 || before a bond hearing takes place. The Court DENIES Respondents’ Motion for Extension 6 || of Time as moot (ECF No. 4) and DENIES Petitioner’s Motion to Expedite (ECF No. 11) 7 || as moot. 8 IT IS SO ORDERED. 9 Dated: September 4, 2026 10 12 13 Honorable Benjamin J. Cheeks United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28