Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 NWOKE SOLOMON VICTOR, Case No.: 3:26-cv-5460-CAB-DEB 12 Petitioner, ORDER DISMISSING PETITION 13 v. FOR A WRIT OF HABEAS CORPUS WITH LEAVE TO AMEND 14 CHRISTOPHER LAROSE, Warden, Otay Mesa Detention Center, 15 [Doc. No. 1] Respondent. 16 17 18 Petitioner Nwoke Solomon Victor, an immigration detainee proceeding pro se1, has 19 filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. [Doc. No. 1 20 (“Petition”).] Petitioner claims that he has been detained by Immigration and Customs 21 Enforcement (“ICE”) without a bond hearing since he entered the United States without 22 inspection on February 27, 2026. [Id. at 6.] As explained in detail below, the Court 23 DISMISSES the Petition WITH LEAVE TO AMEND. 24 /// 25 26 1 Petitioner may be interested in contacting Federal Defenders of San Diego to see if a Federal Defender 27 can represent Petitioner in this matter. The telephone number for Federal Defenders’ San Diego Office is 619-234-8467 (Toll Free: 888-614-9867) and the El Centro Office is 760-335-3510 (Toll Free: 877-404- 28 1 A habeas petitioner bears the burden of demonstrating that he is in illegal custody. 2 See Martinez v. Noem, No. 25-CV-2740-BJC-BJW, 2025 WL 3171738, at *2 (S.D. Cal. 3 Nov. 13, 2025). “If it plainly appears from the petition and any attached exhibits that the 4 petitioner is not entitled to relief in the district court, the judge must dismiss the petition[.]” 5 Rules Governing Section 2254 Cases in the United States District Courts, Rule 4; see also 6 Rule 1(b) (permitting court to apply Rules Governing Section 2254 Cases to any “habeas 7 corpus petition”). Indeed, “district courts are expected to take ‘an active role in summarily 8 disposing of facially defective habeas petitions[.]’” Pinson v. Carvajal, 69 F.4th 1059, 9 1065 (9th Cir. 2023) (citing Boyd v. Thompson, 147 F.3d 1124, 1127 (9th Cir. 1998)). 10 Petitioner alleges that he has been continuously detained since his arrival on 11 February 27, 2026. [See Petition at 6.] The Petition mentions a pending asylum case. In 12 similar cases, this Court has used the Banda test as a framework, which considers the 13 following six factors: (1) the total length of detention to date, which is the most important 14 factor; (2) the likely duration of future detention; (3) the conditions of detention; (4) delays 15 in removal proceedings caused by the detainee; (5) delays in removal proceedings caused 16 by the government; and (6) the likelihood that the removal proceedings will result in a final 17 order of removal. Banda v. McAleenan, 385 F. Supp. 3d 1099, 1106 (W.D. Wash. 2019). 18 Here, the first factor weighs heavily against Petitioner given that he has been 19 detained for approximately seven months. See Sibomana v. LaRose, No. 22-CV-933-LL- 20 NLS, 2023 WL 3028093, at *4 (S.D. Cal. Apr. 20, 2023) (highlighting that courts are 21 typically wary of continued custody without a bond hearing when detention extends 22 beyond one year). Moreover, Petitioner has not alleged any specific delays attributable to 23 Respondent, nor provided any details as to the status of his case, such as the timing or 24 outcome of his calendar or merits hearings to date.2 The Court thus finds that Petitioner’s 25 26 27 2 The EOIR Automated Case Information system states that Petitioner has an individual hearing scheduled 28 1 continued detention has not become unconstitutionally prolonged and thus dismisses the 2 || Petition without ordering a response. 3 Petitioner also challenges the conditions of his confinement, including the adequacy 4 ||of his medical care, the facilities, and the food. [Petition at 6—7.] Such challenges may be 5 || brought in a civil action, usually under 42 U.S.C. § 1983 or Bivens, not as a habeas claim. 6 || Wilson v. Ponce, 465 F. Supp. 3d 1037, 1046 (C.D. Cal. 2020); see also Muhammad vy. 7 || Close, 540 U.S. 749, 750 (2004) (“Challenges to the validity of any confinement or to 8 || particulars affecting its duration are the province of habeas corpus . . . [while] requests for 9 || relief turning on circumstances of confinement may be presented in a § 1983 action.”). 10 The Court thus DISMISSES the Petition for a writ of habeas corpus WITH LEAVE 11 AMEND to allow Petitioner to file an Amended Petition in the event that his detention 12 || extends beyond a year. 13 The Clerk of the Court shall close the case. If an Amended Petition is filed, the 14 || Court will reopen the case. 15 Itis SO ORDERED. 16 || Dated: September 25, 2026 18 Hon. Cathy Ann Bencivengo 19 United States District Judge 20 21 22 23 24 25 26 27 28