Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JORGE ALBERTO ALEJANDRE- Case No.: 26-CV-3902 JLS (JLB) SERVIN, 12 ORDER (1) GRANTING IN PART Petitioner, 13 AMENDED PETITION FOR WRIT v. OF HABEAS CORPUS AND (2) 14 DENYING AS MOOT MOTION TODD BLANCHE, et al., 15 FOR TEMPORARY Respondents. RESTRAINING ORDER 16 17 (ECF Nos. 2, 12) 18 Presently before the Court is Petitioner Jorge Alberto Alejandre-Servin’s Amended 19 Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 (“Pet.,” ECF No. 12) 20 and Motion for Temporary Restraining Order (ECF No. 2). Also before the Court is 21 Respondents’ Return to Petition for Writ of Habeas Corpus (“Ret.,” ECF No. 14) and 22 Petitioner’s Traverse (“Traverse,” ECF No. 15). For the reasons set forth below, the Court 23 GRANTS IN PART the Petition for a Writ of Habeas Corpus. 24 BACKGROUND 25 Petitioner, a citizen of Mexico, alleges that he has been detained by the United States 26 Department of Homeland Security’s (“DHS”) Immigration and Customs Enforcement 27 (“ICE”) division at the Otay Mesa Detention Center since November 1, 2025, when he was 28 transferred from MCC to immigration custody. Ret. at 2. On October 30, 2025, Petitioner 1 pled guilty to Unlawful Representation under Title 18 U.S.C. § 1325(a)(3) and was 2 sentenced to time served. Id. While in immigration custody, Petitioner received a negative 3 credible fear determination which was vacated because the “immigration judge was 4 concerned about Petitioner’s mental competency, ‘including his statements about hearing 5 voices directing him to harm himself.’” Id. (citing ECF No. 14, Ex. 3). Petitioner applied 6 for asylum and withholding from removal. Id. at 3. On January 23, 2026, DHS filed a 7 motion to pretermit Petitioner’s applications for relief finding that Petitioner is subject to 8 the Asylum Cooperative Agreements (“ACA”) with Honduras, Guatemala, and Ecuador. 9 Id. (citing ECF No. 14, Ex. 5). 10 On May 4, 2026, Petitioner received a bond hearing where the immigration judge 11 found that they lacked jurisdiction over Petitioner’s custody status because Petitioner was 12 not a member of the Franco-Gonzalez class. Id. (citing Franco-Gonzalez, No. 10-2211, 13 2013 WL 8115423 (C.D. Cal. Apr. 23, 2013)).1 Petitioner appealed this decision. Id. On 14 May 14, 2026, the immigration judge granted DHS’s motion to pretermit and ordered 15 Petitioner removed to Ecuador, Honduras, or Guatemala. Id. Petitioner has been in 16 immigration custody for over ten months. Petitioner alleges that his prolonged detention 17 violates the Due Process Clause of the Fifth Amendment. See generally Pet. 18 DISCUSSION 19 I. Legal Standard 20 A federal prisoner challenging the execution of his or her sentence, rather than the 21 legality of the sentence itself, may file a petition for writ of habeas corpus in the district of 22 his confinement pursuant to 28 U.S.C. § 2241. See 28 U.S.C. § 2241(a). The sole judicial 23 body able to review challenges to final orders of deportation, exclusion, or removal is the 24 25 26 1 “Under Franco-Gonzalez, class members ‘who have a serious mental disorder or defect that renders them incompetent to represent themselves’ are entitled to a ‘Qualified Representative’ in immigration 27 proceedings, and class members ‘who have been detained for more than six months’ are entitled to a bond 28 hearing within 180 days after being identified.” Lara v. Hernandez, No. C26-747 TSZ, 2026 WL 1 court of appeals. See generally 8 U.S.C. § 1252; see also Alvarez–Barajas v. Gonzales, 2 418 F.3d 1050, 1052 (9th Cir. 2005) (citing REAL ID Act, Pub. L. No. 109-13, 119 Stat. 3 231, § 106(a)). However, for claims challenging ancillary or collateral issues arising 4 independently from the removal process—for example, a claim of indefinite detention— 5 federal habeas corpus jurisdiction remains in the district court. Nadarajah v. Gonzales, 6 443 F.3d 1069, 1076 (9th Cir. 2006), abrogated on other grounds by Jennings v. Rodriguez, 7 138 S. Ct. 830 (2018); Alvarez v. Sessions, 338 F. Supp. 3d 1042, 1048–49 (N.D. Cal. 8 2018) (citations omitted). 9 II. Jurisdiction 10 Respondents argue that this Court lacks jurisdiction under 8 U.S.C. §§ 1252(g) and 11 1252(b)(9). Ret. at 4–5. Section 1252(g) provides that “no court shall have jurisdiction to 12 hear any cause or claim by or on behalf of any alien arising from the decision or action by 13 the Attorney General to commence proceedings, adjudicate cases, or execute removal 14 orders against any alien under this chapter.” 8 U.S.C. § 1252(g). Respondents argue that 15 Petitioner’s claims arise from his detention during removal proceedings, which stem from 16 the Attorney General’s decision to commence such proceedings. Ret. at 4. The Court 17 disagrees. 18 Section 1252(g) should be read “narrowly” as to apply “only to three discrete actions 19 that the Attorney General may take: her ‘decision or action’ to ‘commence proceedings, 20 adjudicate cases, or execute removal orders.’” Ibarra-Perez v. United States, No. 24-631, 21 2025 WL 2461663, at *6 (9th Cir. Aug. 27, 2025) (quoting Reno v. Am.-Arab Anti- 22 Discrimination Comm., 525 U.S. 471, 482, 487 (1999)). Section 1252(g) “does not 23 prohibit challenges to unlawful practices merely because they are in some fashion 24 connected to removal orders.” Id. at *7. Thus, Section 1252(g) does not bar due process 25 claims. Walters v. Reno, 145 F.3d 1032, 1052–53 (9th Cir. 1998) (finding that the 26 petitioners’ objective was not to review the merits of their proceeding, but rather “to 27 enforce their constitutional rights to due process in the context of those proceedings”). 28 1 Here, Petitioner does not challenge the decision to commence removal proceedings 2 or any act to adjudicate or execute a removal order. Traverse at 2–3. Rather, Petitioner is 3 challenging the legality of his continued detention without a bond hearing. Id. Petitioner 4 is enforcing his “constitutional rights to due process in the context of the removal 5 proceedings—not the legitimacy of the removal proceedings or any removal order.” 6 Garcia v. Noem, 803 F. Supp. 3d 1064, 1074 (S.D. Cal. 2025). Therefore, § 1252(g) does 7 not strip the Court of jurisdiction. See, e.g., Germakhanov v. Aki, No. 26-CV-1397-BJC- 8 VET, 2026 WL 2273115, at *1–2 (S.D. Cal. Aug. 6, 2026) (finding the Court had 9 jurisdiction in a similar matter). 10 III. Merits 11 “Neither the Ninth Circuit nor the Supreme Court have provided guidance regarding 12 the point at which an immigration detainee’s prolonged mandatory detention becomes 13 unconstitutional.” Amado v. United States Dep’t of Just., No. 25-CV-2687-LL(DDL), 14 2025 WL 3079052, at *5 (S.D. Cal. Nov. 4, 2025). However, “[n]early all district courts 15 that have considered [the constitutionality of prolonged mandatory detention] agree that 16 prolonged mandatory detention pending removal proceedings, without a bond hearing, 17 will—at some point—violate the right to due process.” Singh v. Barr, 400 F. Supp. 3d 18 1005 (S.D. Cal. 2019) (internal quotation marks and citations omitted) (cleaned up) 19 (collecting cases). In determining whether detention has become unreasonable, courts 20 evaluate factors including “the total length of detention to date, the likely duration of future 21 detention, and the delays in the removal proceedings caused by the petitioner and the 22 government.” Lopez v. Garland, 631 F. Supp. 3d 870, 879 (E.D. Cal. 2022). Some courts 23 also consider the conditions of detention and the likelihood that the removal proceedings 24 will result in a final order of removal. See, e.g., Sadeqi v. LaRose, 809 F. Supp. 3d 1090, 25 1094 (S.D. Cal. 2025). 26 The Court finds that Petitioner has established he is entitled to a bond hearing. 27 Petitioner’s length of detention, over ten months, without a bond hearing weighs slightly 28 in Petitioner’s favor. Courts have found that detention of similar lengths without a bond 1 hearing weighs in favor of finding that detention has become unreasonable. See, e.g., 2 Castro Ricardo v. ICE Field Off. Dir., No. 26-CV-1195-SAB, 2026 WL 1179786, at *2 3 (W.D. Wash. April 30, 2026) (finding detention prolonged without a hearing at five and a 4 half months); Nche v. Patrick, No. 26-CV-2449-JES-DDL, 2026 WL 1195015, at *3 (S.D. 5 Cal. May 1, 2026) (finding this factor weighed slightly in favor of a bond hearing after six 6 months of detention); Islamov v. Doe, No. 26-CV-1528-JES-VET, 2026 WL 1179873, at 7 *4 (S.D. Cal. April 30, 2026); Amado, 2025 WL 3079052, at *5 (“Courts have found 8 detention over seven months without a bond hearing weighs toward a finding that it is 9 unreasonable.”). The length of detention therefore slightly favors Petitioner. 10 As to the likely duration of future detention, Petitioner argues that he has reason to 11 anticipate significant future detention because he has appealed his removal order. Ret. at 12 2. The Court agrees, as Petitioner’s appeal to the BIA may take months, and any appeal to 13 the Ninth Circuit thereafter may take years. See Masood v. Barr, No. 19-CV-07623-JD, 14 2020 WL 95633, at *3 (N.D. Cal. Jan. 8, 2020) (noting that the “government cannot predict 15 with any degree of confidence when the BIA appeal will be resolved”). Therefore, the 16 likely duration of future detention weighs in Petitioner’s favor. 17 Delay in removal proceedings is neutral since the record does not suggest significant 18 delay by Respondents nor Petitioner. See generally Pet.; Ret. Balancing the discussed 19 factors, the Court concludes that Petitioner’s detention has become unreasonably 20 prolonged, and therefore, Petitioner is entitled to a bond hearing. 21 CONCLUSION 22 Based on the foregoing, the Court GRANTS Petitioner’s Amended Petition for a 23 Writ of Habeas Corpus (ECF No. 12) and ORDERS the Government to provide Petitioner 24 with a bond hearing within fourteen (14) days, unless Petitioner, the non-citizen, requests 25 a continuance. The Government SHALL bear the burden of establishing by clear and 26 convincing evidence that Petitioner is a danger to the community or a flight risk if released. 27 Bond SHALL NOT be denied on the basis that 8 U.S.C. § 1225(b)(2) requires mandatory 28 1 ||detention. The Court DENIES the Amended Petition to the extent it seeks release and 2 || DENIES AS MOOT Petitioner’s Motion for Temporary Restraining Order (ECF No. 2). 3 The Parties SHALL FILE a Joint Status Report by September 24, 2026, informing 4 Court of the outcome of the hearing or the status of the hearing if Petitioner requests a 5 ||continuance. The Clerk of Court SHALL CLOSE the file. 6 IT IS SO ORDERED. 7 ||Dated: September 4, 2026 . tt f Le 8 on. Janis L. Sammartino 9 United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28