Havva Khalilova v. Kenneth C. Smith, San Diego Field Office Director, U.S. Immigration and Customs Enforcement, et al.

• Court: District Court, S.D. California
• Decided: November 5, 2025
• Docket: 3:25-cv-02140
• Status: Unknown

Opinion

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 HAVVA KHALILOVA, Case No.: 25-CV-2140 JLS (DDL)

11 Petitioner, ORDER (1) DENYING PETITION 12 v. FOR WRIT OF HABEAS CORPUS, AND (2) DENYING AS MOOT 13 KENNETH C. SMITH, San Diego Field PETITIONER’S MOTION FOR Office Director, U.S. Immigration and 14 LEAVE TO AMEND PETITION FOR Customs Enforcement, et al., WRIT OF HABEAS CORPUS 15 Respondents. 16 (ECF Nos. 1, 5) 17 18 Presently before the Court is Petitioner Havva Khalilova’s Petition for Writ of 19 Habeas Corpus pursuant to 28 U.S.C. § 2241 (“Pet.,” ECF No. 1). Also before the Court 20 is Respondents Kenneth C. Smith’s (San Diego Field Office Director, Immigration and 21 Customs Enforcement), Todd Lyons’s (Acting Director of Immigration Customs 22 Enforcement), Kristi Noem’s (Secretary of the U.S. Department of Homeland Security), 23 and Pamela Bondi’s (Attorney General of the United States) (collectively, “Respondents”) 24 Return in Opposition (“Opp’n,” ECF No. 4) and Petitioner’s Traverse (“Traverse,” ECF 25 No. 6). Further before the Court is Petitioner’s Motion to Amend Petition for Writ of 26 Habeas Corpus (“Mot.,” ECF No. 5). For the reasons set forth below, the Court DENIES 27 Petitioner’s Petition for a Writ of Habeas Corpus and DENIES AS MOOT Petitioner’s 28 Motion to Amend. 1 BACKGROUND 2 Petitioner is a native and citizen of Azerbaijan and is currently detained at the Otay 3 Mesa Detention Center by the Department of Homeland Security, Bureau of Immigration 4 and Customs Enforcement. Pet. ¶ 9. On December 1, 2024, Petitioner entered the United 5 States between ports of entry near Tecate, California. Opp’n at 2. Petitioner was 6 determined inadmissible under 8 U.S.C. § 1182(a)(6)(A)(i) and 8 U.S.C. § 7 1182(a)(7)(A)(i)(I) and was placed into expedited removal proceedings under 8 U.S.C. § 8 1225(b)(1). Id. On January 13, 2025, Petitioner was interviewed by a U.S. Citizenship 9 and Immigration Services asylum officer to determine whether she had a credible fear of 10 persecution or torture if removed to Azerbaijan. Id. The asylum officer concluded she did 11 not. Id. On January 28, 2025, an immigration judge reviewed and vacated the asylum 12 officer’s determination. Id. On February 4, 2025, Petitioner was issued a Notice to Appear 13 (NTA), charging her as inadmissible and commencing removal proceedings under 8 U.S.C. 14 § 1229a. Id. at 2–3. Petitioner remained in custody, received a bond hearing, and was 15 denied bond. Id. at 3. 16 On July 28, 2025, Petitioner had an individual hearing before an immigration judge 17 where she was found removable under 8 U.S.C. § 1182(a)(6)(A)(i).1 Id. The immigration 18 judge ordered Petitioner to be removed from the United States, denied her application for 19 asylum, and granted her application for withholding of removal under 8 U.S.C. § 20 1231(b)(3).2 Id. This decision means that Petitioner cannot be removed to Azerbaijan, and 21 22 23

24 1 8 U.S.C. § 1182(a)(6)(A)(i) designates as inadmissible, and therefore “ineligible to receive visas and 25 ineligible to be admitted to the United States,” illegal entrants who are present “without being admitted or paroled, or who arrives in the United States at any time or place other than as designated by the 26 Attorney General.” 2 8 U.S.C. § 1231(b)(3) states, with exceptions, that “the Attorney General may not remove an alien to a 27 country if the Attorney General decides that the alien’s life or freedom would be threatened in that 28 country because of the alien’s race, religion, nationality, membership in a particular social group, or 1 if Immigration Customs Enforcement (ICE) seeks to remove Petitioner, it must find a third 2 country willing to accept Petitioner.3 Pet. ¶ 17. 3 On August 21, 2025, ICE submitted resettlement requests to Armenia, Hungary, and 4 Canada. Opp’n at 3. Canada has denied the resettlement request, and ICE has not received 5 a final decision from Hungary and Armenia.4 Id. As such, Petitioner remains detained and 6 now seeks the Court to either order Petitioner’s release under supervision pursuant to 8 7 C.F.R. § 241.5(a) or direct a bond hearing before an immigration judge. Traverse at 3. 8 LEGAL STANDARD 9 A federal prisoner challenging the execution of his or her sentence, rather than the 10 legality of the sentence itself, may file a petition for writ of habeas corpus in the district of 11 his confinement pursuant to 28 U.S.C. § 2241. See 28 U.S.C. § 2241(a). The sole judicial 12 body able to review challenges to final orders of deportation, exclusion, or removal is the 13 court of appeals. See generally 8 U.S.C. § 1252; see also Alvarez–Barajas v. Gonzales, 14 418 F.3d 1050, 1052 (9th Cir. 2005) (citing REAL ID Act, Pub. L. No. 109-13, 119 Stat. 15 231, § 106(a)). However, for claims challenging ancillary or collateral issues arising 16 independently from the removal process—for example, a claim of indefinite detention— 17 federal habeas corpus jurisdiction remains in the district court. Nadarajah v. Gonzales, 18 443 F.3d 1069, 1076 (9th Cir. 2006), abrogated on other grounds by Jennings v. Rodriguez, 19 20

21 3 8 U.S.C. § 1231(b)(2)(E) lists the countries that are available to the Secretary of Homeland Security to 22 resettle a noncitizen who has received protection against removal under § 1231(b)(3). These include: the country from which the alien was admitted, the foreign port where the alien left for the United 23 States, the country where the alien resided before the country from which the alien entered the United 24 States from, the country where the alien was born, the country that had sovereignty over the alien’s birthplace, the country where the alien’s birthplace is located when the alien is ordered removed, and 25 “[i]f impracticable, inadvisable, or impossible to remove the alien to each country described in a previous clause of this subparagraph, another country whose government will accept the alien into that 26 country.” § 1231(b)(2)(E). This section is applicable when the Secretary is unable to remove the noncitizen under subparagraph (D)—a country where the alien is a subject, national, or citizen. 27 4 Respondents claim that the Hungarian Consulate General has responded that the request was forwarded 28 to the Hungarian Ministry of Foreign Affairs and Trade. Opp’n at 3. Respondents have not provided an 1 138 S. Ct. 830 (2018); Alvarez v. Sessions, 338 F. Supp. 3d 1042, 1048–49 (N.D. Cal. 2 2018) (citations omitted). 3 DISCUSSION 4 When an alien is denied asylum, granted withholding of removal under 8 U.S.C. § 5 1231(b)(3), and ordered removed, they must be detained for ninety days (90) pending the 6 government’s efforts to secure their removal to a third country. See 28 U.S.C. § 1231(a)(2). 7 This ninety-day period is referred to as the “removal period.” § 1231(a)(1)(A). After the 8 removal period, this statute “limits an alien’s post-removal-period detention to a period 9 reasonably necessary to bring about that alien’s removal from the United States” and “does 10 not permit indefinite detention.” Zadvydas v. Davis, 533 U.S. 678, 689 (2001). A six- 11 month period of post-removal detention constitutes a “presumptively reasonable period of 12 detention.” Id. at 701. After this six-month period passes, the petitioner has the burden to 13 “provide[] good reason to believe that there is no significant likelihood of removal in the 14 reasonably foreseeable future.” Id. If petitioner satisfies their initial burden, it then shifts 15 to the Government to rebut that showing. Id. “[F]or detention to remain reasonable, as the 16 period of prior post-removal confinement grows, what counts as the ‘reasonably 17 foreseeable future’ conversely would have to shrink.” Id. “[O]nce removal is no longer 18 reasonably foreseeable, continued detention is no longer authorized by statute.” Id. at 699. 19 In that case, the alien’s release may be conditioned on any of the various forms of 20 conditioned release. Id. at 700. 21 Of importance here is when the “removal period” begins. “[T]he removal period 22 begins when an alien is ‘ordered removed,’ and the removal order becomes 23 ‘administratively final.’” Johnson v. Guzman Chavez, 594 U.S. 523, 534 (2021). 24 /// 25 /// 26 /// 27 /// 28 /// 1 Section 1231(a)(1)(B) states that: The removal period begins on the latest of the following: 2 (i) The date the order of removal becomes administratively 3 final. (ii) If the removal order is judicially reviewed and if a court 4 orders a stay of the removal of the alien, the date of the court’s 5 final order. (iii) If the alien is detained or confined (except under an 6 immigration process), the date the alien is released from 7 detention or confinement. 8 8 U.S.C. § 1231(a)(1)(B). 9 Petitioner argues that, because she has been detained by ICE since December 1, 10 2024, that this is the date the removal period begins, and therefore, her detention is beyond 11 the six-month presumptively reasonable period. Traverse at 2. Respondents argue that this 12 Petition is premature because the removal period began after the immigration judge’s order 13 of removal and granting of withholding of removal on July 28, 2025. Opp’n at 6. 14 Respondents then conclude that the presumptively reasonable removal period will not end 15 until “approximately January 28, 2026.” Id. 16 “[W]here an alien seeks release prior to the expiration of the presumptive six-month 17 period, [her] claims are unripe for federal review.” Waraich v. Ashcroft, No. CVF051036, 18 2005 WL 2671406, at *1 (E.D. Cal. Oct. 19, 2005) (citing Akinwale v. Ashcroft, 287 F.3d 19 1050, 1052 (11th Cir. 2002)); see also Ali v. Barlow, 446 F. Supp. 2d 604, 609 (E.D. Va. 20 Aug. 28, 2006) (finding petitioner’s habeas petition premature when the six-month period 21 had not passed). Here, Petitioner’s removal order became administratively final on July 22 28, 2025, because that is when the immigration judge entered a final order of removal. See, 23 e.g., Conchas-Valdez v. Casey, No. 25-cv-02469-DMS-JLB, 2025 WL 2884822, at *1–2 24 (S.D. Cal. Oct. 6, 2025) (finding the removal period began when the immigration judge 25 deferred petitioner’s removal under the Convention Against Torture); Vlasov v. Bondi, No. 26 25-cv-1342-AJB-MSB, 2025 WL 2258582, at *1 (S.D. Cal. Aug. 7, 2025) (finding the 27 removal date to be the withdrawal of an appeal of the immigration judge’s decision to 28 withhold petitioner’s removal to Russia under § 1231 due to a likelihood of political 1 persecution). Therefore, Petitioner’s claim will become ripe for review by January 28, 2 2026—six months after July 28, 2025—making the current Petition premature. 3 Even if Petitioner’s claim was ripe, the Court is not persuaded that Petitioner has 4 met her burden of demonstrating that there is good reason to believe that there is no 5 significant likelihood of removal in the reasonably foreseeable future.5 See Trinh v. 6 Homan, 466 F. Supp. 3d 1077, 1092 (C.D. Cal. 2020) (stating that the Zadvydas court did 7 not preclude a noncitizen from challenging their detention before the end of the six-month 8 period, but nonetheless finding petitioners had not satisfied their initial burden). 9 Respondents state that “ICE is in the process of obtaining travel documents from a third 10 country,” and “ICE remains actively working to locate a third country for resettlement.” 11 Opp’n at 3, 6. Petitioner attempts to argue that because ICE is considering Armenia as a 12 possible resettlement location that this demonstrates that “ICE’s efforts were made without 13 diligence or regard for humanitarian and legal obligations.” Traverse at 2. According to 14 Respondents, ICE is waiting on a response from the Hungarian Ministry of Foreign Affairs 15 and Trade and is continuing to look for alternatives. Opp’n at 3. While the consideration 16 of Armenia as a safe removal option may prove to be doubtful, ICE is still actively looking 17 for a third country option, and Petitioner has not raised evidence stating otherwise. See 18 Conchas-Valdez, 2025 WL 2884822, at *3 (satisfying petitioner’s burden where petitioner 19 repeatedly requested updates and was ignored, petitioner was denied by three countries, 20 respondents failed to name any other countries the Government was working with, and 21 petitioner was told that his assigned officers had not done anything on his case for several 22 months). 23 24 25 26 5 Petitioner incorrectly states that, at this time, the Government has the burden of demonstrating that Petitioner’s removal is significantly likely to occur in the reasonably foreseeable future. Traverse at 1. 27 Petitioner bears the initial burden to “provide[] good reason to believe that there is no significant 28 likelihood of removal in the reasonably foreseeable future.” Zadvydas, 533 U.S. at 701. Once that is 1 Therefore, because the six-month period of presumptive reasonableness has not 2 || passed, Petitioner’s claim is not ripe for review, and even if it were ripe, Petitioner has not 3 her initial burden. 4 CONCLUSION 5 Based on the foregoing, the Court DENIES Petitioner’s Petition for Writ of Habeas 6 || Corpus (ECF No. 1) WITHOUT PREJUDICE. Because Petitioner can refile this petition 7 || and correct any errors, Petitioner’s Motion to Amend (ECF No. 5) is DENIED AS MOOT. 8 || As this concludes the litigation in this matter, the Clerk of the Court SHALL close the file. 9 IT IS SO ORDERED. 10 || Dated: November 5, 2025 (een 12 United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28