Babaveisi v. Larose et al

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA

SHOJA BABAVEISI, Case No.: 25-cv-3746-GPC-SBC
Petitioner,
ORDER GRANTING IN PART
Vv. PETITION FOR WRIT OF HABEAS
CHRISTOPHER J. LAROSE, et al. CORPUS
Respondents.|_ [ECF No. 1]

On December 23, 2025, Petitioner filed a Petition for Writ of Habeas Corpus
pursuant to 28 U.S.C. § 2241. ECF No. 1 (“Pet.”). On January 2, 2026, Respondents filed
a return to the petition. ECF No. 5 (“Ret.”). On January 5, 2026, Petitioner filed a traverse.
ECF No. 6 (“Trv.”). A hearing was held on January 9, 2026. ECF No. 11. For the following
reasons, the Court GRANTS IN PART the petition for writ of habeas corpus.

///
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AUTHENTIEBTE

INFORMAFION

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I. BACKGROUND
a. Factual Background

Petitioner is a native and citizen of Iran, Pet. ¢ 12, and fled Iran due to persecution
for his participation in the protests against the Kurdish opposition. Pet. § 4.! He was “shot
at with live rounds, beaten, and arrested by government forces...[and] was told by
intelligence authorities that he would be killed if Petitioner did not cooperate with them.”
Pet. { 4. Petitioner, thus, fears returning to Iran and being killed for his political opinions
and involvement. Id.

On March 18, 2025, Petitioner entered the United States near Roma, Texas without
inspection. Jd. § 2; Ret. at 2, Ex. 1. That same day after entering the country, Petitioner was
encountered by border patrol agents and taken into custody.’ Ret., Ex. 1. The border agents
determined that Petitioner was inadmissible under 8 U.S.C. § 1182(a)(7)(A)()(J). Ret. at
2. Petitioner was then placed into expedited removal proceedings pursuant to 8 U.S.C. §
1225(b)(1). Id. Petitioner, at that time, indicated a fear of returning to Iran and was referred
for a credible fear interview. Jd. On April 18, 2025, the credible fear interview was
conducted and resulted in a positive determination. /d., Ex. 5.

On July 2, 2025, Petitioner was issued a Notice to Appear (NTA) charging him as
inadmissible under 8 U.S.C. §§ 1182(a)(6)(A)(i) and 1182(a)(7)(A)G)(). Jd. at 2, Ex. 3.
The filing of the NTA initiated removal proceedings against Petitioner under 8 U.S.C. §

'In his Traverse, Petitioner adds that he is a Kurdish national of Iran, was active in the
Democratic Party of Iranian Kurdistan, and fled Iran after participating in the protests of
the killing of Mahsa Amini, a Kurdish-Iranian woman, by Iranian police. Trv. at 2.

* In his petition, Petitioner alleged he was detained by Immigration and Customs
Enforcement (“ICE”) on or about July 2, 2025. Pet. §§ 1, 15, 19, 20. The Respondent’s
Return asserts that Petitioner has been in ICE custody since March 24, 2025. Ret. at 1.
Attached to their Return, Respondent provided a Form I-213, indicating Petitioner was
detained on March 18, 2025. See Ret., Ex. 1. In his Traverse, Petitioner now claims that
he has been in ICE custody since March 24, 2025.

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1229a, which remain ongoing. Jd. at 2. The NTA scheduled Petitioner’s initial master
calendar hearing for July 14, 2025. /d., Ex. 3. At the hearing, the Parties informed the Court
that this initial master calendar hearing was delayed to allow Petitioner to update his
asylum application.

On September 8, 2025, Petitioner filed an I-589 asylum application. Petitioner
remains detained at the Otay Mesa Detention Center. Pet. § 15. Petitioner’s removal
proceedings are pending, and a master calendar hearing is scheduled for January 27, 2026.
Ret., Ex. 4.

b. Procedural Background

On December 23, 2025, Petitioner filed a Petition for Writ of Habeas Corpus
pursuant to 28 U.S.C. § 2241. ECF No. 1. On January 2, 2026, Respondents filed a
return. ECF No. 5. On January 5, 2026, Petitioner filed a traverse. ECF No. 6.

Petitioner presents three claims under the Fifth Amendment Due Process clause.
Petitioner claims that his detention violates substantive and procedural due process. Pet.
q§] 42-47 (First Cause of Action). Additionally, Petitioner argues that the January 2025
Designation, Office of the Secretary, Dept of Homeland Security, Designating Aliens for
Expedited Removal, 15 Fed. Reg. 8139 (“2025 Designation” )—which expanded the
application of expedited removal—does not unmistakably apply to Petitioner. Jd. {¥ 48-
51 (Second Cause of Action). Third, Petitioner alleges that the Respondents’ detention of
Petitioner without notice or an opportunity to be heard violated due process. Jd. J§ 81-85
(Seventh Cause of Action).

Second, Petitioner has alleged three causes of action, asserting that Respondents
violated the Administrative Procedure Act (“APA”). The APA causes of action allege
that Respondents have (1) unlawfully detained Petitioner in order to deprive him of his
liberty interest and to eliminate his due process rights, (2) not provided Petitioner notice
or consideration of his individualized facts before detaining Petitioner, and (3) violated 8

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U.S.C. § 1225(b) because the “expedited removal statute does not apply and may not be
applied to individuals who were ‘paroled’ into the United States.” Id. 94 58, 66, 73
(Third, Fourth, and Fifth Causes of Action).

Finally, Petitioner alleges he was detained in violation of the Fourth Amendment
when he did not receive any judicial determination of probable cause for his arrest. Jd. J§
74-80 (Sixth Cause of Action).

The Petitioner asks the court to (1) grant the instant petition for a writ of habeas
corpus, (2) declare that Petitioner’s detention without an individualized determination
violates the Due Process Clause of the Fifth Amendment, (3) declare that refusal to allow
Petitioner a meaningful bond and custody redetermination hearing violates the INA, APA,
and Due Process, (4) issue an order prohibiting the Respondents from transferring
Petitioner from the district without the Court’s approval, (5) issue an order requiring
Respondents to provide a bond and custody redetermination hearing within 14 days, (6)
grant Petitioner injunctive relief to obtain all medical records regarding suicidal diagnosis
based on the conditions at the detention center, and (7) award Petitioner attorney’s fees
and costs under the Equal Access to Justice Act and on any other basis justified under law.
Il. LEGAL STANDARD

Under 28 U.S.C. § 2241, a writ of habeas corpus may be granted to any petitioner
who demonstrates that he is “in custody in violation of the Constitution or laws or treaties
of the United States.” 28 U.S.C. § 2241(c)(3); see Rasul v. Bush, 542 U.S. 466, 473 (2004).
As explained by the Supreme Court, “the essence of habeas corpus is an attack by a person
in custody upon the legality of that custody, and...the traditional function of the writ is to
secure release from illegal custody.” Preiser v. Rodriguez, 411 U.S. 475, 484 (1973);
Pinson v. Carvajal, 69 F.4th 1059, 1067 (9th Cir. 2023) (habeas actions limited to

challenges of the legality or duration of confinement).

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A prisoner bears the burden of demonstrating that “[h]e is in custody in violation of
the Constitution or laws or treaties of the United States.” See Espinoza v. Sabol, 558 F.3d
83, 89 (1st Cir. 2009).

Il. DISCUSSION
a. Jurisdiction

Petitioner invokes this Court’s jurisdiction under the habeas provision, 28 U.S.C. §
2241, the Suspension Clause, federal question, 28 U.S.C. § 1331, and the APA, 5 U.S.C. §
702. Respondents maintain that this Court lacks jurisdiction over Petitioner’s claims,
stating that the claims and relief are barred by 8 U.S.C. § 1252(g).

8 U.S.C. § 1252(g) states that, with limited exceptions, “no court shall have
jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision
or action by the Attorney General to commence proceedings, adjudicate cases, or execute
removal orders against any alien.” 8 U.S.C. § 1252(g) (emphasis added); Reno v. Am.-Arab
Anti-Discrimination Comm., 525 U.S. 471, 482 (1999). In that light, § 1252(g) is a narrow
statutory provision that concentrates on those three discrete actions. Reno, 525 U.S. at 482.

Respondents argue that the § 1252(g) bar applies because Petitioner’s claims arise
“from the Department of Homeland Security’s decision to commence removal
proceedings against him.” Ret. at 4. Specifically, the government’s decision “unavoidably
triggers mandatory detention under 8 U.S.C. § 1225(b)(1)(B)(ii) until the conclusion of
his removal proceedings.” /d. However, rather than challenging the decision to commence
proceedings, Petitioner challenges the legality of his detainment, specifically objecting to
the application of § 1225(b)(1) and the prolonged length of detention. Trv. 5-6.
Detainment of Petitioner does not fall within the three discrete actions identified in §
1252(g) and, thus, would not deprive the Court’s jurisdiction. See, e.g., Aditya W. H. v.
Trump, 782 F. Supp. 3d 691, 704 (D. Minn. 2025) (finding a claim against detention did
not fall under Section 1252(g)); Mahdawi v. Trump, 781 F. Supp. 3d 214, 224-26 (D. Vt.

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2025) (same); Deng Chol A. v. Barr, 455 F. Supp. 3d 896, 901 (D. Minn. 2020) (“Although
the court may not review discretionary decisions made by immigration authorities, it may
review immigration-related detentions to determine if they comport with the demands of
the Constitution.”).
b. Merits

Petitioner claims that his detention violates the APA, the Fifth Amendment’s Due
Process Clause, and the Fourth Amendment. Pet. {J 42-85; Trv. at 5-13. Respondents, in
turn, maintain that Petitioner is mandatorily detained under 8 U.S.C. § 1225(b)(1), has not
been subjected to unconstitutionally prolonged detention, brings inappropriate habeas
claims in terms of conditions of confinement, and fails with its Fourth Amendment claims.
Ret. at 5-12.

i. Detainment Under the INA

Section 1225(b)(1) states that “[i]f an immigration officer determines that an
alien...who is arriving in the United States or is described in clause (iii) is inadmissible
under section 1182(a)(6)(C) or 1182(a)(7)...and the alien indicates either an intention to
apply for asylum...or a fear of persecution, the officer shall refer the alien for an interview
by an asylum officer under.” 8 U.S.C. § 1225(b)(1)(A)(ii). Once the noncitizen has been
referred for an interview, “[i]f the [asylum] officer determines at the time of the interview
that an alien has a credible fear of persecution...the alien shall be detained for further
consideration of the application for asylum.” 8 U.S.C. § 1225(b)(1)(B)(ii). Thus Section
1225(b)(1) “mandate[s] detention of applicants for admission until certain proceedings
have concluded.” Jennings v. Rodriguez, 583 U.S. 281, 297 (2018). Until the noncitizen’s
asylum application has been fully considered, “nothing in the statutory text imposes any
limit on the length of detention...[or] says anything whatsoever about bond hearings.” Jd.

Here, Petitioner is a noncitizen and an applicant for admission. See 8 U.S.C. §

1225(a)(1). An immigration officer determined Petitioner was inadmissible under 8 U.S.C.

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§§ 1182(a)(6)(A)(i) and 1182(a)(7)(A)G)(). Ret. at 2. Exs. 1-3. Petitioner, however,
indicated a fear of persecution, was given an interview, and received a positive
determination. Ret. at 2. These facts indicate that Petitioner falls within the purview of
Section 1225(b)(1).

While Petitioner points out an inconsistency with his NTA, where the “arriving
alien” classification box was left unmarked, it goes too far to say that the defect “confirms
that DHS elected to proceed under § 1229a, not §1225(b)(1).” Trv. at 11. That argument
ignores prior documentation identifying Petitioner as “arriving.” Ret, Ex. 2. It also
sidesteps the fact that the NTA identified both 8 U.S.C. §§ 1182(a)(6)(A)(i) and
1182(a)(7)(A)()(1) as the sources of Petitioner’s inadmissibility, which places Petitioner
under Section 1225(b)(1). Id., Ex. 3.

Thus, Petitioner is lawfully detained under Section 1225(b)(1).

ii. Prolonged Detention
1. Entitlement to Due Process Claim

While Petitioner is mandatorily detained under Section 1225(b)(1), he has raised a
due process claim, arguing that his detention has become constitutionally prolonged. Trv.
at 6. Respondents contend, relying on Thuraissigiam, that inadmissible arriving
noncitizens have no due process rights other than those afforded by statute. Ret. at 7.

In Thuraissigiam, the respondent was a noncitizen detained close to the border and
shortly after unlawful entry. Dep't of Homeland Sec. v. Thuraissigiam, 591 U.S. 103, 140
(2020). Keeping those characteristics in mind, the Supreme Court held that those “in
respondent's position ha[ve] only those rights regarding admission that Congress has
provided by statute.” Jd.

After the decision, district courts have taken two different approaches. In one blanket
approach, district courts have dismissed or denied habeas petitions from those in
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statutory protections. See, e.g., Petgrave v. Aleman, 529 F. Supp. 3d 665, 669 (S.D. Tex.
2021) (“As far as Petitioner is concerned, whatever procedure Congress has authorized is
sufficient due process.”); Gonzales Garcia v. Rosen, 513 F. Supp. 3d 329, 336 (W.D.N.Y.
2021) (“Petitioner is on the threshold of initial entry into the United States and [ ] he
accordingly is not entitled to procedural protections beyond those provided by statute.”’);
Zelaya-Gonzalez v. Matuszewski, No. 23-CV-151-JLS-KSC, 2023 WL 3103811, at *4
(S.D. Cal. Apr. 25, 2023) (“Binding Ninth Circuit and Supreme Court precedents are clear
that Petitioner lacks any rights beyond those conferred by statute, and no statute entitles
Petitioner to a bond hearing.”); Mendoza-Linares v. Garland, No. 21-CV-1169-BEN-
AHG, 2024 WL 3316306, at *2 (S.D. Cal. June 10, 2024) (same).

However, a majority of courts have opted for an alternative, as-applied approach.
Specifically, while facial challenges to mandatory detention have been rejected, see
Demore v. Kim, 538 U.S. 510, 530-31 (2003), nothing has been said “about whether due
process may eventually require a hearing.” Black v. Decker, 103 F.4th 133, 149 (2d Cir.
2024) (emphasis in original). This is also true for Thuraissigiam. Though Thuraissigiam
limits an arriving noncitizen’s due process rights in regard to admission, the court did not
address the issue of prolonged detention. See Padilla v. U.S. Immigr. & Customs Enf't, 704
F. Supp. 3d 1163, 1171 (W.D. Wash. 2023) (“Thuraissigiam’s discussion of due process
is necessarily constrained to challenges to admissibility to the United States. This was the
sole claim presented and the respondent expressly asked for a chance to reapply for asylum
and admission.”’).

Additionally, “the Supreme Court has...explicitly stated that as-applied
constitutional challenges to 8 U.S.C. § 1226(c)[, which cover mandatory detention under
that statute,| are not foreclosed.” Abdul-Samed v. Warden of Golden State Annex Det.
Facility, No. 1:25-CV-00098-SAB-HC, 2025 WL 2099343, at *5 (E.D. Cal. July 25, 2025).

While the Ninth Circuit has not spoken on whether due process requires a bond hearing for

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noncitizens mandatorily detained, the First, Second, and Third Circuits have held that “the
Due Process Clause imposes some form of ‘reasonableness’ limitation upon the duration
of detention ... under [section 1226(c)].” Reid v. Donelan, 17 F.4th 1, 7 (1st Cir. 2021)
(alterations in original) (citation omitted); see Black, 103 F.4th at 138; German Santos v.
Warden Pike Cnty. Corr. Facility, 965 F.3d 203, 209-10 (3d Cir. 2020). Though § 1225(b)
was not specifically addressed by the Supreme Court or the three Circuit courts, § 1225(b)
contains similar mandatory detention provisions to § 1226(c). Thus, the reasoning
underlying this as-applied approach would seemingly also transfer to § 1225(b).

Given this background, a majority of district courts have found prolonged detention
under § 1225(b) without a bond hearing can eventually give rise to due process issues. See,
e.g., Sadeqi v. LaRose, No. 25-CV-2587-RSH-BJW, 2025 WL 3154520, at *2 (S.D. Cal.
Nov. 12, 2025) (“This Court agrees with the majority position that a petitioner detained
under Section 1225(b)(1) may assert a due process challenge to prolonged mandatory
detention without a bond hearing.”); Abdul-Samed v. Warden of Golden State Annex Det.
Facility, No. 25-cv-98-SAB-HC, 2025 WL 2099343, at *6 (E.D. Cal. July 25, 2025)
(“Although the Ninth Circuit has yet to take a position on whether due process requires a
bond hearing for noncitizens detained under 8 U.S.C. § 1225(b)...‘essentially all district
courts that have considered the issue agree that prolonged mandatory detention pending
removal proceedings, without a bond hearing, will—at some point—violate the right to
due process.’”) (quoting Martinez v. Clark, No. C18-1669-RAJ-MAT, 2019 WL 5968089,
at *6 (W.D. Wash. May 23, 2019)); Kydyrali v. Wolf, 499 F. Supp. 3d 768, 772 (S.D. Cal.
2020) (“[T]he Court joins the majority of courts across the country in concluding that an
unreasonably prolonged detention under 8 U.S.C. § 1225(b) without an individualized
bond hearing violates due process.”); Banda v. McAleenan, 385 F. Supp. 3d 1099, 1116
(W.D. Wash. 2019) (collecting cases); A.L. v. Oddo, 761 F. Supp. 3d 822, 825 (W.D. Pa.
2025) (“Nowhere in [Thuraissigiam] did the Supreme Court suggest that arriving aliens

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being held under § 1225(b) may be held indefinitely and unreasonably with no due process
implications, nor that such aliens have no due process rights whatsoever.”).

The Court agrees with the majority. While Thuraissigiam limits an arriving
noncitizen’s due process rights in regard to admission, a petitioner may still assert a due
process claim against prolonged mandatory detention without a bond hearing.

2. Violation of Due Process

To determine whether a petitioner’s detention has been unreasonably prolonged, the
Court applies the Banda v. McAleenan’s six-factor analysis as a framework, which weighs:
(1) total length of detention to date; (2) likely duration of future detention; (3) conditions
of detention; (4) delays in the removal proceedings caused by the detainee; (5) delays in
the removal proceedings caused by the government; and (6) the likelihood that the removal
proceedings will result in a final order of removal. Banda v. McAleenan, 385 F. Supp. 3d
1099 (W.D. Wash. 2019).°

Total Length of Detention to Date. Petitioner has been detained for nearly ten

months. Petitioner argues that this detention is, thus, prolonged, as detention exceeding six
months is presumptively unreasonable. Pet. at 7. Respondents, however, maintain that
“Petitioner’s current detention does not fall within the range [that] courts have found to be
unreasonable.” Ret. at 9. In Respondents’ view, detention should be for a much longer
period to be unreasonably prolonged. Jd.

While close to 10 months of detention does not presumptively establish

unreasonably prolonged detention, it is also not so little time as to preclude constitutional

scrutiny. See Sadeqi v. LaRose, No. 25-CV-2587-RSH-BJW, 2025 WL 3154520, at *3

3 Respondent offers a similar three-factor balancing test from Lopez v. Garland, 631 F.
Supp. 3d 870, 879 (E.D. Cal. 2022). Given that all factors considered in the Lopez test are
encapsulated in the Banda framework, the Court shall apply the more comprehensive
Banda framework.
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(S.D. Cal. Nov. 12, 2025) (“The Court agrees with Respondents that the length of
Petitioner's detention to date—almost 12 months—does not by itself, without more,
establish prolonged detention in violation of due process. But neither does that length of
detention serve as a safe harbor or insulate Petitioner's case from constitutional review.”).
Additionally, courts have previously found that similar or shorter lengths of detention were
unreasonable. See, e.g., Gao v. LaRose, No. 25-CV-2084-RSH-SBC, 2025 WL 2770633,
at *5 (S.D. Cal. Sept. 26, 2025) (“The Court finds that Petitioner's detention for over 10
months without a bond hearing, in the context of the specific circumstances described
above, has become unreasonable and violates due process.”); Amado v. United States Dep't
of Just., No. 25-CV-2687-LL-DDL, 2025 WL 3079052, at *6 (S.D. Cal. Nov. 4, 2025)
(“Courts have found detention over seven months without a bond hearing weighs toward a
finding that it is unreasonable.”); Masood v. Barr, No. 19-CV-07623-JD, 2020 WL 95633,
at *3 (N.D. Cal. Jan. 8, 2020) (finding detention for nearly nine months weighs in favor of
the petitioner).
Thus, this factor weighs in favor of Petitioner, though it is not determinative alone.

Likely Duration of Future Detention. The second factor requires consideration of

“how long the detention is likely to continue absent judicial intervention; in other words,
the ‘anticipated duration of all removal proceedings—including administrative and judicial
appeals.’” Banda v. McAleenan, 385 F. Supp. 3d 1099, 1119 (W.D. Wash. 2019) (quoting
Jamal A. v. Whitaker, 358 F. Supp. 3d 853, 859 (D. Minn. 2019)).

Here, the length of future detention is unclear. Petitioner does not have an individual
merits hearing scheduled but a master calendar hearing on January 27, 2026. ECF No. 8;
Trv. at 3. Petitioner also filed an I-589 asylum application on September 8, 2025, which is
still pending. Pet. § 12; Ret. at 2-3. Petitioner, thus, is at the initial stages of his removal
proceedings. “While the Court cannot definitively determine the duration of petitioner's
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more months and potentially years in detention,” especially if there is a petition for review
before the Court of Appeals. Belgasim v. Bostock, No. 2:25-CV-01282-LK-TLF, 2025 WL
3466971, at *9 (W.D. Wash. Oct. 28, 2025), report and recommendation adopted sub
nom. Belqasim v. Hermosillo, No. 2:25-CV-01282-LK, 2025 WL 3170929 (W.D. Wash.
Nov. 13, 2025); Guatam v. Corr. Corp. of Am., No. 3:25-CV-3600-JES-DEB, 2026 WL
25846, at *5 (S.D. Cal. Jan. 5, 2026) (“[A] removal order may not become final until after
the appeals Petitioner could file, to both the Board of Immigration Appeals and Ninth
Circuit... These appeals can take a long time.”); Abdul-Samed v. Warden of Golden State
Annex Det. Facility, No. 1:25-CV-00098-SAB-HC, 2025 WL 2099343, at *7 (E.D. Cal.
July 25, 2025) (“Although the Court recognizes that future events are difficult to predict,
the Court nevertheless finds that in the event Petitioner's applications for relief from
removal are denied, Petitioner's possible administrative appeal and judicial review by the
Ninth Circuit will be sufficiently lengthy such that this factor weighs in favor of
Petitioner.”’).
Thus, the Court finds this factor falls in favor of Petitioner.

Conditions of Detention. For the third factor, “[t]he more that the conditions under

which the noncitizen is being held resemble penal confinement, the stronger his argument
that he is entitled to a bond hearing.” Banda, 385 F. Supp. 3d at 1119 (citation omitted).
Courts have recognized that the conditions at the Otay Mesa Detention Center are
“indistinguishable from penal confinement.” See Kydyrali v. Wolf, 499 F. Supp. 3d 768,
773 (S.D. Cal. 2020); Amado v. United States Dep't of Just., No. 25-CV-2687-LL-DDL,
2025 WL 3079052, at *6 (S.D. Cal. Nov. 4, 2025). Further, Petitioner suffers from
osteoporosis and experiences severe depression. Trv. at 3. His medical records indicate that
his mental condition and PTSD has been exacerbated by his detention and puts him at risk

for further deterioration. See id. at 12; ECF No. 10. Petitioner also alleges “[d]etention

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conditions exacerbate severe osteoporosis, creating a high risk of irreversible injury.” Trv.
at 12. Thus, this factor weighs in favor of Petitioner.

Delays in Removal. The fourth and fifth factors concern delays in the removal

proceedings caused by Petitioner or the government. In terms of the fourth factor,
Respondent maintained at the hearing that Petitioner’s initial master calendar hearing was
delayed to allow for Petitioner to update his asylum application. The Parties also
acknowledged at the hearing that the current master calendar hearing might be further
delayed in the face of raised competency issues. However, this factor is meant to weigh
and protect against dilatory tactics; good-faith actions to litigate and defend are not
considered. See Lopez v. Garland, 631 F. Supp. 3d 870, 881 (E.D. Cal. 2022) (“Petitioner
is entitled to raise legitimate defenses to removal ... and such challenges to his removal
cannot undermine his claim that detention has become unreasonable.”); Gonzalez v.
Bonnar, No. 18-CV-05321-JSC, 2019 WL 330906, at *4 (N.D. Cal. Jan. 25, 2019) (“The
government cites no authority for the proposition that a petitioner who pursues his available
legal remedies must forego any challenge to the reasonableness of his detention in the
interim and the Court is unaware of any. ”); Liban MJ. v. Sec'y of Dep't of Homeland Sec.,
367 F. Supp. 3d 959, 965 (D. Minn. 2019) (“[T]he Court agrees Petitioner has not engaged
in dilatory tactics and finds this factor favors granting relief...Petitioner is entitled to raise
legitimate defenses to removal, including filing a petition for conditional residence, and
such challenges to his removal cannot undermine his claim that detention has become
unreasonable.”). Thus, this factor is neutral.

2 66

As for the fifth factor, though Petitioner maintains that Respondents’ “actions have
contributed significantly to the prolonged detention of Petitioner,” the Petitioner points to
no facts to support that conclusion. See Trv. at 10. There is also no indication in any of the
filings that Respondents caused any delay in the proceedings. In sum, the both the fourth
and fifth factors are neutral.

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Likelihood of Final Removal Order. For the sixth Banda factor, the Court

evaluates the likelihood that the removal proceedings will result in a final order of removal,
or “[i]n other words, the Court considers whether the noncitizen has asserted any defenses
to removal.” Banda, 385 F. Supp. 3d at 1120. Here, Petitioner claims he has been
persecuted by Iranian Police due to his Kurdish nationality and political involvement.
Based upon this persecution, Respondent has determined that Petitioner’s fears are
credible. Petitioner will now have the opportunity to present evidence supporting his
asylum claims. While it remains unclear how an JJ will eventually rule, Petitioner has so
far presented a defense which reduces the likelihood of a final removal order. Thus, the
Court finds this factor slightly favors Petitioner.

Weighing the Factors. In sum, at least four of the six factors weigh in favor

Petitioner, with the other factors being neutral. Accordingly, the Court concludes that
Petitioner’s detention has become unreasonably prolonged. Thus, Petitioner is entitled to a
prompt and individualized bond hearing, where Respondents must justify Petitioner’s
continued detention “by a showing of clear and convincing evidence that Petitioner would
likely flee or pose a danger to the community if released.” Sadegi v. LaRose, No. 25-CV-
2587-RSH-BJW, 2025 WL 3154520, at *4 (S.D. Cal. Nov. 12, 2025); Abdul-Samed v.
Warden of Golden State Annex Det. Facility, No. 1:25-CV-00098-SAB-HC, 2025 WL
2099343, at *9 (E.D. Cal. July 25, 2025); Toktosunov v. Wamsley, No. 2:25-CV-1724-TL,
2025 WL 3492858, at *6 (W.D. Wash. Dec. 5, 2025).*

+ The Petition also makes claims, contradicted by the record, that are premised on having
been released (Pet. J 45 and 65) and paroled (/d. § 72). Similarly, Petitioner also
references the limitations on dismissing pending removal proceedings even though
Petitioner’s proceedings were not dismissed. In his Traverse, Petitioner abandons these
unsupported claims and confines himself to the unreasonably prolonged detention
argument. While additional claims remain, having reached its conclusion as to the
prolonged detention claim for relief, the Court declines to decide the merits of
Petitioner’s other claims.

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IV. CONCLUSION

Based on the reasoning above, the Court GRANTS IN PART the petition for writ
of habeas corpus pursuant to 28 U.S.C. § 2241.

In his petition, Petitioner requests release, or in the alternative, a bond hearing before
an immigration judge. Pet. at 17. “The Court finds, consistent with other post-
Jennings cases, that the appropriate remedy is a bond hearing before an immigration
judge[.]” Lopez v. Garland, 631 F. Supp. 3d 870, 882 (E.D. Cal. 2022); Abdul-Samed, 2025
WL 2099343, at *9. If Respondents fail to comply with this order, Petitioner may seek
further relief from the Court at that time.

Accordingly, the Court ORDERS Respondents to provide Petitioner with a bond
hearing within seven (7) days of this Order.° Respondents are ORDERED to FILE a
Notice of Compliance within ten days of providing Petitioner with a bond hearing. The
Clerk of Court SHALL enter judgment in Petitioner's favor and close this case.

IT ISSO ORDERED.

Dated: January 9, 2026 (25 apho 00

Hon. Gonzalo P. Curiel ~~
United States District Judge

> In his prayer for relief, Petitioner requests an award of costs and reasonable attorney’s
fees. Pet. at 17. Petitioner’s counsel may submit an appropriate EAJA fee application
within 30 days of the issuance of this Order.
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