Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 EFRAIN BARRIOS-PEREZ, Case No.: 26-cv-1622-BJC-VET 12 Petitioner, ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND 13 v. DENYING TEMPORARY 14 PAMELA BONDI, et. al., RESTRAINING ORDER 15 Respondents. 16 17 Pending before the Court is Petitioner Efrain Barrios-Perez’s Petition for Writ of 18 Habeas Corpus under 28 U.S.C. § 2241, along with a Motion for Temporary Restraining 19 Order (“TRO”). ECF Nos. 1, 2. Petitioner is a citizen of Mexico. On September 23, 2025, 20 he was encountered by ICE ERO at the Metropolitan Correctional Center in San Diego. He 21 has been detained since that time at the Otay Mesa Detention Center. 22 Petitioner has multiple prior removals from the United States. His first removal was 23 in 2007 and the most recent was on April 14, 2020. ECF No. 12 at 2. On February 26, 2026, 24 Petitioner was transferred from federal criminal custody into immigration custody pursuant 25 to an honored detainer. On February 27, 2026, Petitioner was issued a Notice of 26 Intent/Decision to Reinstate Prior Order. After asserting fear of removal, Petitioner was 27 referred for a reasonable fear interview and the reviewing officer found that Petitioner did 28 not establish a reasonable fear. On March 25, 2026, an immigration judge reviewed that 1 fear determination and found that Petitioner failed to establish a reasonable fear. Pursuant 2 to 8 C.F.R. § 1208.31(g)(1), there is no administrative appeal available of the immigration 3 judge’s determination. On March 26, 2026, Petitioner filed a request for reconsideration of 4 the credible-fear determination with the USCIS Asylum Office. On March 31, 2026, 5 USCIS denied the request for reconsideration, stating Petitioner needed to request that from 6 the judge. 7 Petitioner contends his detention is a violation of 8 U.S.C. § 1231(a)(6) and the Fifth 8 Amendment Right to Due Process under Zadvydas v. Davis, 533 U.S. 678 (2001). ECF 9 No. 1 at 11. 10 Courts may grant habeas corpus relief to those “in custody in violation of the 11 Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241; see also Hamdi v. 12 Rumsfeld, 542 U.S. 507, 525 (2004) (“[T]he writ of habeas corpus remains available to 13 every individual detained within the United States.”) Courts are authorized to grant writs 14 pursuant to § 2241 to noncitizens in custody in violation of the Constitution or laws or 15 treaties of the United States. Magana-Pizano v. I.N.S., 200 F.3d 603, 609 (9th Cir. 1999). 16 Under 8 U.S.C. § 1231(b)(3), an alien who is ordered removed, must be detained for 17 ninety days (90) pending the government's efforts to secure their removal to a third country. 18 See 28 U.S.C. § 1231(a)(2). The ninety-day period is referred to as the “removal period.” 19 § 1231(a)(1)(A). Once the removal period expires, the statute “limits an alien's post- 20 removal-period detention to a period reasonably necessary to bring about that alien's 21 removal from the United States” and “does not permit indefinite detention.” Zadvydas v. 22 Davis, 533 U.S. 678, 689 (2001). A six-month period of post-removal detention constitutes 23 a “presumptively reasonable period of detention.” Id. at 701. After this six-month period 24 passes, the petitioner has the burden to “provide[ ] good reason to believe that there is no 25 significant likelihood of removal in the reasonably foreseeable future.” Id. If a petitioner 26 meets the initial burden, it then shifts to the Government to rebut that showing. Id. “[F]or 27 detention to remain reasonable, as the period of prior post-removal confinement grows, 28 what counts as the ‘reasonably foreseeable future’ conversely would have to shrink.” Id. 1 “[O]nce removal is no longer reasonably foreseeable, continued detention is no longer 2 authorized by statute.” Id. at 699. In that case, the alien's release may be conditioned on 3 any of the various forms of conditioned release. Id. at 700. 4 Here, Petitioner’s final order of removal became final on February 27, 2026. 5 Therefore, he has been detained for almost 7 months post final order of removal. His period 6 of detention is longer than the presumptively reasonable six-month period. Trinh v. Homan, 7 466 F. Supp. 3d 1077, 1092 (C.D. Cal. 2020) (collecting cases); Ndandu v. Noem, No. 25- 8 CV-2939-RBM-MSB, 2026 WL 25848, at *3 (S.D. Cal. Jan. 5, 2026) (finding that the six- 9 month presumption is rebuttable and finding petitioner rebutted the presumption while only 10 being detained for three months); Hernandez v. Bondi, No. 25-CV-2020-EPG-HC, 2026 11 WL 350829, at *3–4 (E.D. Cal. Feb. 9, 2026) (rebutting presumption after five month 12 detention); Herzardastan v. Noem, No. 25-CV-3424-AB-DBT, 2025 WL 3768581, at *2 13 (C.D. Cal. Dec. 23, 2025) (rebutting presumption after four month detention); Uzzhina v. 14 Chestnut, No. 25-CV-1594-DAD-SCR, 2025 WL 3458787, at *3 n.3 (E.D. Cal. Dec. 2, 15 2025) (“The fact that a noncitizen has been held in-custody less than six months does not 16 foreclose a claim that his or her detention is unlawful under Zadvydas.”) Here, the Court 17 finds Petitioner has rebutted the 6-month presumption and met his initial burden. 18 Next, Petitioner must “provide[ ] good reason to believe that there is no significant 19 likelihood of removal in the reasonably foreseeable future.” Zadvydas, 533 U.S. 701. 20 Petitioner argues that “ICE has been unable to secure travel documents or otherwise 21 effectuate Petitioner's removal to Mexico due to a lack of diplomatic cooperation or 22 practical ability to carry out removals to Mexico at this time. Petitioner has fully cooperated 23 with ICE's efforts to secure travel documents.” ECF No. 10 at 6. Petitioner has 24 demonstrated that there is “good reason to believe that there is no significant likelihood of 25 removal in the reasonably foreseeable future.” Zadvydas, 533 U.S. at 701. 26 The burden now shifts to Respondents to rebut Petitioner's showing of good reason 27 to believe he will not be removed in the reasonably foreseeable future. Zadvydas, 533 at 28 701. Respondents contend that removal to Mexico is imminent but that they have been 1 || unable to effectuate Petitioner’s removal to Mexico because of the pending habeas petition. 2 || They argue that they will be able to remove Petitioner as soon as the Court lifts its order 3 || enjoining removal. ECF No. 12 at 4. 4 The Court finds that Petitioner’s removal to Mexico is significantly likely in the 5 ||reasonably foreseeable future considering Petitioner’s multiple prior removals and 6 Respondents representation that the only reason removal has not been effectuated is this 7 ||Court’s order enjoining his removal. Accordingly, Petitioner’s continued detention does 8 ||not exceed the authority conferred by 8 U.S.C. § 1231(a)(6) and does not violate the Due 9 || Process Clause of the Fifth Amendment. The Court DENIES the petition for a writ of 10 || habeas corpus and DENIES the TRO as moot (ECF No. 2). The Clerk of Court shall close 11 matter. 12 IT IS SO ORDERED. 13 Dated: September 16, 2026 14 6 “yew C4 fa 15 Honorable Benjamin J. Cheeks 16 United States District Judge 17 18 19 20 21 22 23 24 25 26 27 28