Gao v. LaRose

• Court: District Court, S.D. California
• Decided: September 26, 2025
• Docket: 3:25-cv-02084
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MINGZHI GAO, Case No.: 25-cv-2084-RSH-SBC

12 Petitioner, ORDER GRANTING PETITION 13 v. FOR WRIT OF HABEAS CORPUS

14 CHRISTOPHER J. LAROSE, Senior Warden, Otay Mesa Detention Center, et al., 15 Respondents. 16 17 18 19 20 Petitioner Mingzhi Gao seeks habeas relief from this Court pursuant to 28 U.S.C. § 21 2241. As set forth below, the Court grants the petition. 22 I. BACKGROUND 23 On August 13, 2025, Petitioner initiated this action by filing a petition for writ of 24 habeas corpus pursuant to 28 U.S.C. § 2241. ECF No. 1. Petitioner, a citizen of the People’s 25 Republic of China, is detained by U.S. Customs and Immigration Enforcement (“ICE”) at 26 the Otay Mesa Detention Center in San Diego, California. Id. ¶¶ 3, 4. Petitioner names as 27 respondents the warden of the detention center, the Acting Director of ICE’s San Diego 28 Field Office for Enforcement and Removal Operations, the Acting Director of ICE, the 1 Secretary of the U.S. Department of Homeland Security (“DHS”), and the Attorney 2 General of the United States. Id. ¶¶ 5-8. 3 Petitioner alleges that on November 24, 2024, after previously being paroled into the 4 United States, Petitioner unintentionally—misdirected by his GPS—crossed the border 5 into Mexico; upon applying for reentry into the United States, he was detained and then 6 transferred into ICE custody. Id. ¶¶ 14-17. On December 13, 2024, an asylum officer 7 interviewed Petitioner and determined that he had a credible fear of persecution in China. 8 Id. ¶ 18. On December 16, 2024, Petitioner was issued a Notice to Appear, charging him 9 with being a removable alien. Id. ¶ 19. 10 On December 31, 2024, an immigration judge ruled that she did not have jurisdiction 11 to set bond for Petitioner because he was an arriving alien. Id. ¶ 18. 12 On June 18, 2025, Petitioner appeared for an individual hearing before an 13 immigration judge, who (1) found Petitioner removable, (2) denied Petitioner’s request for 14 asylum, but (3) granted Petitioner’s request for withholding of removal to China pursuant 15 to 8 U.S.C. § 1231. Id. ¶ 22. Petitioner has appealed the denial of asylum, and his appeal 16 remains pending. ¶¶ 24-25. 17 Petitioner has twice requested parole from ICE, on December 31, 2024 and on 18 August 8, 2025. Id. ¶¶ 21, 30. He has not received a parole determination. 19 Petitioner asserts that his detention violates the due process clause of the Fifth 20 Amendment. Respondents have filed a response to the Petition, and contend that there is 21 no due process violation, but have not contested any of the foregoing facts. ECF No. 6. 22 On September 3, 2025, the Court held a hearing on the Petition. ECF No. 9. The 23 Court invited supplemental briefing from both sides, which they have filed. See ECF Nos. 24 10, 11. Petitioner has remained in ICE custody since his arrest on November 24, 2024. 25 II. LEGAL STANDARD 26 Title 28 of the U.S. Code, Section 2241, provides that “[w]rits of habeas corpus may 27 be granted by the Supreme Court, any justice thereof, the district courts and any circuit 28 judge within their respective jurisdictions.” 28 U.S.C. § 2241(a). A prisoner bears the 1 burden of demonstrating that “[h]e is in custody in violation of the Constitution or laws or 2 treaties of the United States.” 28 U.S.C. § 2241(c)(3). See also Espinoza v. Sabol, 558 F.3d 3 83, 89 (1st Cir. 2009) (“[T]he burden of proof under § 2241 is on the prisoner ….”). 4 III. ANALYSIS 5 1. Jurisdiction 6 Respondents first challenge this Court’s jurisdiction to hear a 2241 petition, relying 7 on 8 U.S.C. § 1252(g). That provision states that, except as otherwise provided in Section 8 1252, and notwithstanding any other provision of law including 8 U.S.C. § 2241, “no court 9 shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from 10 the decision or action by the Attorney General to commence proceedings, adjudicate cases, 11 or execute removal orders against any alien under this chapter.” The government argues 12 that because Petitioner challenges his detention during removal proceedings, that detention 13 “arises from” the Attorney General’s decision to commence such proceedings; and 14 therefore his challenge must be brought instead through 8 U.S.C. § 1252(b)(9). ECF No. 6 15 at 5-6 & n.4. That provision, in turn, states: 16 Judicial review of all questions of law and fact, including interpretation and application of constitutional and statutory provisions, arising from 17 any action taken or proceeding brought to remove an alien from the 18 United States under this subchapter shall be available only in judicial review of a final order under this section. 19

20 8 U.S.C. § 1252(b)(9). In this habeas action, Petitioner is not seeking “judicial review of a 21 final order.” Additionally, Section 1252(a)(5) provides that a petition for review filed with 22 an appropriate court of appeals is “the sole and exclusive means for judicial review of an 23 order of removal.” 24 The Supreme Court has interpreted the jurisdiction-stripping provision in Section 25 1252(g) provisions narrowly, limiting it to “three discrete actions”: the “‘decision or action’ 26 to ‘commence proceedings, adjudicate cases, or execute removal orders.’” Reno v. Am.- 27 Arab Anti–Discrimination Comm., 525 U.S. 471, 482 (1999) (quoting 8 U.S.C. § 1252(g)). 28 The Supreme Court noted that “[t]here are of course many other decisions or actions that 1 may be part of the deportation process.” Id. In a later decision, the Court explained that it 2 did not interpret Section 1252(g) “to sweep in any claim that can technically be said to 3 “arise from” the three listed actions of the Attorney General. Instead, we read the language 4 to refer to just those three specific actions themselves.” Jennings v. Rodriguez, 583 U.S. 5 281, 294 (2018). 6 Here, Petitioner is seeking to review the legality of his detention, arguing that the 7 length of time he has been detained here violates due process—rather than challenging the 8 decision to commence proceedings, the adjudication of his removal case, or an action to 9 execute his removal order. He does not seek to relitigate in this Court the Immigration 10 Judge’s order of removal; indeed, he is separately pursuing an appeal with the Board of 11 Immigration Appeals. The sole relief he seeks here is release from custody. Respondents 12 have not cited any authority in which a court was found to lack subject matter jurisdiction 13 over such a habeas claim. The Court concludes that Petitioner’s claim is not barred by 14 Section 1252(g). 15 2. Merits 16 The Parties agree that, as a matter of statutory law, Petitioner is subject to mandatory 17 detention pursuant to 8 U.S.C. § 1225(b)(1). The relevant provision states that in the case 18 of an arriving alien seeking asylum, “[i]f the officer determines at the time of the interview 19 that an alien has a credible fear or persecution … the alien shall be detained for further 20 consideration of the application for asylum.” 8 U.S.C. § 1225(b)(1)(B)(ii).1 Although 21

22 23 1 Section 1225(b)(1)(B)(ii), applicable to arriving aliens seeking asylum and found to have a credible fear of persecution, is one of the mandatory detention regimes contained in 24 the Immigration and Nationality Act. Other mandatory detention rules include those in 25 Section 1225(b)(1)(B)(iii)(IV) (“Any alien subject to the procedures under this clause shall be detained pending a final determination of credible fear of persecution and, if found not 26 to have such a fear, until removed.”), Section 1225(b)(2)(A) (“[I]n the case of an alien who 27 is an applicant for admission, if the examining immigration officer determines that an alien seeking admission is not clearly and beyond a doubt entitled to be admitted, the alien shall 28 1 Petitioner’s application for asylum has now been denied by an immigration judge, because 2 Petitioner has appealed his order of removal it is not administratively final and he remains 3 subject to Section 1225(b)(1)(B)(ii). The sole issue presented is whether, in the 4 circumstances of this case and at this point in time, applying this mandatory detention 5 regime violates Petitioner’s due process rights. 6 Respondents argue that under the Supreme Court’s decision in Department of 7 Homeland Security v. Thuraissigiam, 591 U.S. 103 (2020), Petitioner as an “arriving alien” 8 has no due process rights beyond those that Congress has provided. ECF No. 6 at 9. In 9 Thuraissigiam, the Supreme Court rejected a habeas petitioner’s argument that the due 10 process clause conferred rights to challenge his order of expedited removal beyond those 11 established by Congress, stating that “an alien at the threshold of initial entry cannot claim 12 any greater rights under the Due Process Clause.” 591 U.S. at 107. The petitioner in that 13 case had “attempted to enter the country illegally and was apprehended just 25 yards from 14 the border.” Id. The Supreme Court determined that the “political department of the 15 government” had plenary authority to admit or exclude aliens seeking initial entry, and thus 16 “an alien in respondent’s position has only those rights regarding admission that Congress 17 has provided by statute.” Id. at 139-40. Respondents argue that because Petitioner is an 18 “arriving alien,”—based on his temporary departure from the United States followed by 19 his application for reentry—due process provides him nothing beyond the mandatory 20 detention scheme established by Section 1225(b)(1). 21 Following the Supreme Court’s decision in Thuraissigiam, some district courts have 22 adopted Respondents’ reasoning to dismiss or deny habeas petitions in the context of 23 arriving aliens subject to mandatory detention under Section 1225(b)(1). See Petgrave v. 24 Aleman, 529 F. Supp. 3d 665, 669 (S.D. Tex. 2021) (“As far as Petitioner is concerned, 25

26 27 be detained for a proceeding under section 1229a of this title.”), Section 1226(c) (entitled “Detention of criminal aliens”), and Section 1231(a)(2) (“During the removal period, the 28 1 whatever procedure Congress has authorized is sufficient due process.”); Gonzales Garcia 2 v. Rosen, 513 F. Supp. 3d 329, 336 (W.D.N.Y. 2021) (“Petitioner is on the threshold of 3 initial entry into the United States and [] he accordingly is not entitled to procedural 4 protections beyond those provided by statute.”). 5 Most courts have ruled otherwise. See Abdul-Samed v. Warden of Golden State 6 Annex Det. Facility, No. 25-cv-98-SAB-HC, 2025 WL 2099343, at *6 (E.D. Cal. July 25, 7 2025) (“Although the Ninth Circuit has yet to take a position on whether due process 8 requires a bond hearing for noncitizens detained under 8 U.S.C. § 1225(b) …. ‘essentially 9 all district courts that have considered the issue agree that prolonged mandatory detention 10 pending removal proceedings, without a bond hearing, will—at some point—violate the 11 right to due process.’”) (citing Martinez v. Clark, No. C18-1669-RAJ-MAT, 2019 WL 12 5968089, at *6 (W.D. Wash. May 23, 2019)); Kydyrali v. Wolf, 499 F. Supp. 3d 768, 772 13 (S.D. Cal. 2020) (“[T]he Court joins the majority of courts across the country in concluding 14 that an unreasonably prolonged detention under 8 U.S.C. § 1225(b) without an 15 individualized bond hearing violates due process.”). This Court agrees with the majority 16 position that a petitioner detained under Section 1225(b)(1) may assert a due process 17 challenge to prolonged mandatory detention without a bond hearing. This Court likewise 18 agrees with those district courts that interpret Thuraissigiam as circumscribing an arriving 19 alien’s due process rights to admission, rather than limiting that person’s ability to 20 challenge detention. See A.L. v. Oddo, 761 F. Supp. 3d 822, 825 (W.D. Pa. 2025) 21 (“Nowhere in [Thuraissigiam] did the Supreme Court suggest that arriving aliens being 22 held under § 1225(b) may be held indefinitely and unreasonably with no due process 23 implications, nor that such aliens have no due process rights whatsoever.”); Hernandez v. 24 Wofford, No. 25-cv-986-KES-CDB (HC), 2025 WL 2420390, at *3 (E.D. Cal. Aug. 21, 25 2025) (“Although the Supreme Court has described Congress’s power over the ‘policies 26 and rules for exclusion of aliens’ as ‘plenary,’ and held that this court must generally ‘defer 27 to Executive and Legislative Branch decisionmaking in that area,’ it is well-established 28 that the Due Process Clause stands as a significant constraint on the manner in which the 1 political branches may exercise their plenary authority’—through detention or otherwise.”) 2 (citations omitted); Padilla v. ICE, 704 F. Supp. 3d 1163, 1171–72 (W.D. Wash. 2023) 3 (“The holding in Thuraissigiam does not foreclose Plaintiffs’ due process claims which 4 seek to vindicate a right to a bond hearing with certain procedural protections.”). 5 Petitioner offers, as a framework for analyzing a due process challenge to prolonged 6 detention, a six-factor balancing test used by some district courts, that considers: (1) the 7 total length of detention to date; (2) the likely duration of future detention; (3) conditions 8 of detention; (4) delays in the removal proceedings caused by the detainee; (5) delays in 9 the removal proceedings caused by the government; and (6) the likelihood that the removal 10 proceedings will result in a final order of removal. See Banda v. McAleenan, 385 F. Supp. 11 3d 1099, 1106 (W.D. Wash. 2019) (citing Jamal A. v. Whitaker, 358 F. Supp. 3d 853, 858- 12 59 (D. Minn. 2019); accord Kydyrali, 499 F. Supp. 3d at 773. Respondents contend that 13 this test is inapplicable, because Thuraissigiam leaves no due process rights for arriving 14 aliens beyond those rights provided by statute; but Respondents argue in the alternative 15 that the six-factor test weighs in Respondents’ favor. ECF No. 6 at 9. 16 As to the first of these factors, which has been described as “the most important 17 factor,” Banda, 385 F. Supp. 3d at 118, Petitioner has been detained for just over 10 18 months. The Court is unaware of any case authority indicating that a 10-month period of 19 immigration detention, in and of itself, requires a bond hearing as a matter of due process. 20 The Court considers the other five factors identified above, as well as additional factors 21 relevant to Petitioner’s case, alongside the length of detention. 22 In Respondents’ favor, there is no indication that the government is responsible for 23 undue delay in the removal proceedings; Petitioner received a merits hearing before an 24 immigration judge less than seven months after his arrest. At that hearing, Petitioner was 25 ordered removed, ECF No. 6 Ex. 4, although that order is non-final as a result of 26 Petitioner’s pending appeal. 27 Other factors favor Petitioner. Petitioner faces an undetermined, but likely 28 significant, period of mandatory detention through the appeals process. Although he has 1 chosen to appeal the denial of asylum, as is his right, there is no indication that he is 2 responsible for undue delay in the proceedings. His conditions of confinement at Otay 3 Mesa Detention Center are not dissimilar to criminal confinement, although Petitioner does 4 not seek to raise standalone constitutional challenges to those conditions. 5 The Court finds that the most relevant factors here, apart from the length of custody 6 to date, fall outside the six-factor test. The Court notes that Petitioner was previously 7 granted parole under 8 U.S.C. § 1182(d)(5). ECF No. 1 at 4. That provision allows DHS to 8 exercise discretion to parole an alien into the United States “on a case-by-case basis for 9 urgent humanitarian reasons or significant public benefit.” 8 U.S.C. § 1182(d)(5). As far 10 as the Court can tell, Petitioner’s parole was terminated not for any change in the 11 underlying circumstances, but automatically as a result of Petitioner having crossed the 12 border into Mexico. Although Petitioner has since made two requests for parole, in 13 December 2024 and in August 2025, there is no evidence that he has received any response 14 or determination on those requests. At the hearing, Respondent’s counsel did not provide 15 any explanation for this lack of response. Asked whether the government had any particular 16 interest in Petitioner’s continued detention, Respondent’s counsel referred to the 17 government’s general interest in the enforcement of immigration laws. The fact that 18 Petitioner was previously granted parole, the fact that his renewed requests for parole have 19 not received responses, and the lack of any specific governmental interest underlying his 20 continued detention all weigh in favor of Petitioner. 21 Additionally, Petitioner has been granted relief by an immigration judge, in the form 22 of withholding of removal to China. Although this relief does not vouchsafe Petitioner’s 23 continued presence in the United States, it suggests that his asylum claim—whether or not 24 his appeal will ultimately be successful—is not wholly without merit. The granting of 25 withholding of removal also means that, even if Petitioner were to withdraw his appeal and 26 his order of removal became final immediately, Petitioner would not be immediately 27 removable to his country of origin. Petitioner indicates that he has been requesting travel 28 documents from third countries, to no avail. Petitioner’s circumstances suggest that even 1 if he were not appealing the denial of asylum, he would face delays in removal through no 2 fault of his own.2 3 The Court finds that Petitioner’s detention for over 10 months without a bond 4 hearing, in the context of the specific circumstances described above, has become 5 unreasonable and violates due process. See A.L., 761 F. Supp. 3d at 826 (granting petition 6 where petitioner was an arriving alien who had been held in custody pursuant to Section 7 1225(b) without a bond hearing for almost 10 months, had been granted withholding of 8 removal, and was pursuing an appeal of the denial of asylum). 9 Petitioner is entitled to a prompt and individualized bond hearing, at which 10 Respondents must justify his continued detention by a showing of clear and convincing 11 evidence that Petitioner would likely flee or pose a danger to the community if released. 12 See Singh v. Holder, 638 F.3d 1196, 1203 (9th Cir. 2011), abrogated on other grounds by 13 Jennings v. Rodriguez, 583 U.S. 281 (2018) (explaining that “the substantial liberty interest 14 at stake” warranted placing the burden on the government to “prove by clear and 15 convincing evidence that an alien is a flight risk or a danger to the community to justify 16 denial of bond”); see also Martinez v. Clark, 124 F.4th 775, 785 (9th Cir. 2024) (stating 17 that “the BIA properly noted that the government bore the burden to establish by clear and 18 convincing evidence that Martinez is a danger to the community” with respect to a bond 19 hearing for a noncitizen detained under § 1226(c)). 20 // 21 // 22 // 23 // 24

25 2 If Petitioner were to dismiss his asylum appeal, it appears he would no longer be 26 subject to mandatory detention under Section 1225(b)(1)(B)(ii), but would instead be 27 subject to Section 1231(a), and if not removed within a 90-day period of mandatory detention would be statutorily eligible for supervision in lieu of detention. See 8 U.S.C. §§ 28 1 |}IV. CONCLUSION 2 For the foregoing reasons, the Petition is GRANTED. Respondents are directed to 3 || arrange an individualized bond hearing for Petitioner before an immigration court within 4 || fourteen (14) days of this order as described above. All other relief sought in the Petition, 5 including an order directing Petitioner’s immediate release, is denied. 6 IT IS SO ORDERED. 7 || Dated: September 26, 2025 ‘ 8 Jekut C [ove 9 Hon. Robert S. Huie United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28