Milton Francisco Soza Velasquez and Albin Adolfo Asturias Esturban v. Christopher Larose, Warden of the Otay Mesa Detention Center, et al.

• Court: District Court, S.D. California
• Decided: November 21, 2025
• Docket: 3:25-cv-03137
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MILTON FRANCISCO SOZA Case No.: 25-CV-3137 JLS (MSB) VELASQUEZ and ALBIN ADOLFO 12 ASTURIAS ESTURBAN, ORDER GRANTING IN PART AND 13 DENYING IN PART PETITION Petitioners, FOR WRIT OF HABEAS CORPUS 14 v. 15 (ECF No. 1) CHRISTOPHER LAROSE, Warden of 16 the Otay Mesa Detention Center, et al., 17 Respondents. 18 19 Presently before the Court is Petitioners Milton Francisco Soza Velasquez’s and 20 Albin Adolfo Asturias Esturban’s Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. 21 § 2241 (“Pet.,” ECF No. 1). Also before the Court is Respondents Christopher LaRose’s 22 (Senior Warden, Otay Mesa Detention Center), Gregory Archambeult’s (Director of the 23 San Diego Field Office, United States Immigration and Customs Enforcement), Pamela 24 Bondi’s (U.S. Attorney General), Kristi Noem’s (Secretary, U.S. Department of Homeland 25 Security), and Todd Lyons’s (Acting Director, U.S. Immigration and Customs 26 Enforcement) (collectively, “Respondents”) Return to Habeas Petition (“Ret.,” ECF No. 6) 27 28 1 and Petitioners’ Traverse (“Traverse,” ECF No. 8). For the reasons set forth below, the 2 Court GRANTS IN PART and DENIES IN PART Petitioners’ Petition for Writ of 3 Habeas Corpus. 4 BACKGROUND 5 Petitioner Velasquez, a Nicaraguan national and citizen, entered the United States 6 without inspection or parole in October of 2022. Pet. ¶ 15. Valasquez was released from 7 DHS custody on humanitarian parole, which is now expired.2 Ret. at 2 Ex. 2. Velasquez 8 “complied with all conditions of his release, including appearing timely for each scheduled 9 ICE check-in.” Id. ¶ 24. On November 6, 2025, Velasquez appeared at his “regularly 10 scheduled ICE check-in” where he was “arrested without a warrant or a notice or finding 11 of violation of any condition of release.” Id. ¶ 25. Since then, he has been detained by the 12 United States Department of Homeland Security’s (“DHS”) Immigration and Customs 13 Enforcement (“ICE”) division at the Otay Mesa Detention Center. Id. ¶ 30. Petitioner 14 Velasquez claims that he is detained by ICE in violation of the Due Process Clause of the 15 Fifth Amendment, 8 U.S.C. § 1226(a), Administrative Procedure Act, and 8 U.S.C. § 16 1357(a)(2). Id. ¶¶ 67–117. 17 Petitioner Esturban, a Guatemalan national and citizen, entered the United States on 18 or around August 7, 2022, without inspection. Id. ¶ 27. On October 20, 2025, Esturban 19 was arrested during a “roving checkpoint stop without a warrant and/or probable cause.” 20 Id. ¶ 29. Since his arrest, Esturban has been detained by DHS’s ICE division at the Otay 21 Mesa Detention Center. Id. ¶ 30. Petitioner Esturban claims that he is detained by ICE in 22 23 24 1 Petitioners filed both a Reply in Support of Request for Temporary Restraining Order (“Reply,” ECF 25 No. 7) and a Traverse. See generally Docket. For purposes of simplicity, and because the two are almost identical, the Court will only refer to the Traverse. 26 2 Neither Petitioners nor Respondents have included the documentation of Velasquez’s humanitarian parole demonstrating the expiration date. However, Petitioners state in their Traverse that “[t]he facts in 27 this case are not in dispute,” and “Petitioners do not dispute the factual allegations contained in the exhibits 28 submitted by Respondents.” Traverse at 1. Therefore, the Court accepts as true the fact that Velasquez’s 1 violation of the Due Process Clause of the Fifth Amendment, Fourth Amendment, 8 U.S.C. 2 § 1226, and 8 U.S.C. § 1357(a)(2). Id. ¶¶ 67–117. 3 Both Petitioners are currently in removal proceedings under 8 U.S.C. § 1229(a) and 4 are each charged with inadmissibility under 8 U.S.C. § 1182(a)(6)(A)(i)3 and 8 U.S.C. § 5 1182(a)(7)(A)(i)(I).4 6 LEGAL STANDARD 7 A federal prisoner challenging the execution of his or her sentence, rather than the 8 legality of the sentence itself, may file a petition for writ of habeas corpus in the district of 9 his confinement pursuant to 28 U.S.C. § 2241. See 28 U.S.C. § 2241(a). The sole judicial 10 body able to review challenges to final orders of deportation, exclusion, or removal is the 11 court of appeals. See generally 8 U.S.C. § 1252; see also Alvarez–Barajas v. Gonzales, 12 418 F.3d 1050, 1052 (9th Cir. 2005) (citing REAL ID Act, Pub. L. No. 109-13, 119 Stat. 13 231, § 106(a)). However, for claims challenging ancillary or collateral issues arising 14 independently from the removal process—for example, a claim of indefinite detention— 15 federal habeas corpus jurisdiction remains in the district court. Nadarajah v. Gonzales, 16 443 F.3d 1069, 1076 (9th Cir. 2006), abrogated on other grounds by Jennings v. Rodriguez, 17 583 U.S. 281 (2018); Alvarez v. Sessions, 338 F. Supp. 3d 1042, 1048–49 (N.D. Cal. 2018) 18 (citations omitted). 19 DISCUSSION 20 Respondents argue that this Court lacks jurisdiction under 8 U.S.C. § 1225(g) and 21 § 1225(b)(9) and that Petitioners have failed to exhaust their administrative remedies. Ret. 22 at 8–12. Respondents then argue, if the Court finds jurisdiction and waives exhaustion, 23 24

25 3 8 U.S.C. § 1182(a)(6)(A)(i) designates as inadmissible, and therefore “ineligible to receive visas and 26 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 Attorney 27 General.” 28 4 8 U.S.C. § 1182(a)(7)(A)(i)(I) designates as inadmissible entrants who are not in possession of a valid 1 that Petitioners’ claims fail on the merits because the Petitioners are subject to mandatory 2 detention under 8 U.S.C. § 1225. Id. at 12–17. 3 I. Jurisdiction 4 Section 1252(g) provides that “no court shall have jurisdiction to hear any cause or 5 claim by or on behalf of any alien arising from the decision or action by the Attorney 6 General to commence proceedings, adjudicate cases, or execute removal orders against any 7 alien under this chapter.” 8 U.S.C. § 1252(g). Respondents claim that Petitioners’ claims 8 “necessarily arise from the decision or action by the Attorney General to commence 9 proceedings and adjudicate cases.” Ret. at 9 (simplified). The Court disagrees. 10 Section 1252(g) should be read “narrowly” as to apply “only to three discrete actions 11 that the Attorney General may take: her ‘decision or action’ to ‘commence proceedings, 12 adjudicate cases, or execute removal orders.’” Ibarra-Perez v. United States, No. 24-631, 13 2025 WL 2461663, at *6 (9th Cir. Aug. 27, 2025) (quoting Reno v. American-Arab Anti- 14 Discrimination Committee, 525 U.S. 471, 482, 487 (1999)). Section 1252(g) “does not 15 prohibit challenges to unlawful practices merely because they are in some fashion 16 connected to removal orders.” Id. at *7. Section 1252(g) does not bar due process claims. 17 Walters v. Reno, 145 F.3d 1032, 1052–53 (9th Cir. 1998) (finding that the petitioners’ 18 objective was not to review the merits of their proceeding, but rather “to enforce their 19 constitutional rights to due process in the context of those proceedings”). 20 Here, Petitioners do not challenge the decision to commence removal proceedings 21 or any act to adjudicate or execute a removal order. Pet ¶ 4. Rather, Petitioners are 22 challenging the legality of DHS’s misclassification of custody under § 1225(b), which 23 deprived them of their statutory right to a bond hearing under § 1226(a). Id. at ¶¶ 49–50. 24 Petitioners are enforcing their “constitutional rights to due process in the context of the 25 removal proceedings—not the legitimacy of the removal proceedings or any removal 26 order.” Garcia v. Noem, No. 25-CV-2180-DMS-MMP, 2025 WL 2549431, at *4 (S.D. 27 Cal. Sept. 3, 2025). Therefore, § 1252(g) does not strip the Court of jurisdiction. 28 1 Section 1252(b)(9) provides that “[j]udicial review of all questions of law and fact, 2 including interpretation and application of constitutional and statutory provisions, arising 3 from any action taken or proceeding brought to remove an alien from the United States 4 under this subchapter shall be available only in judicial review of a final order under this 5 section.” 8 U.S.C. § 1252(b)(9) (emphasis added). Respondents argue that Petitioners are 6 challenging “the government’s decision and action to detain them” during removal 7 proceedings. Ret. at 11. Respondents assert that the decision to detain Petitioners arise 8 from the “decision to commence removal proceedings” and thus is “an action taken . . . to 9 remove [them] from the United States.” Id. (quoting 8 U.S.C. § 1252(b)(9)). Respondents 10 conclude that the Court lacks jurisdiction under § 1252(b)(9). Id. Again, the Court 11 disagrees. 12 Section 1252(b)(9) “has built-in limits, specifically, claims that are independent of 13 or collateral to the removal process do not fall within the scope” of § 1252(b)(9). 14 Gonzalez v. United States Immigration and Customs Enforcement, 975 F.3d 788, 810 (9th 15 Cir. 2020) (citing J.E.F.M. v. Lynch, 837 F.3d 1026, 1032 (9th Cir. 2016) (internal 16 quotation marks omitted)). “[C]laims challenging the legality of detention pursuant to an 17 immigration detainer are independent of the removal process.” Id.; see also Garcia, 2025 18 WL 2549431, at *3–4; Nielson v. Preap, 586 U.S. 392, 402 (2019) (quoting Jennings v. 19 Rodriguez, 583 U.S. 281, 294 (2018)) (finding § 1252(b)(9) did not strip the court of 20 jurisdiction because the petitioners were “not asking for review of an order of removal; 21 they [were] not challenging the decision to detain them in the first place or to seek removal 22 (as opposed to decision to deny them bond hearings); and they [were] not even challenging 23 any part of the process by which their removability w[ould] be determined”). 24 Here, as discussed above, Petitioners are not challenging the Department of 25 Homeland Security’s decision to commence removal proceedings, to adjudicate 26 removability, or to exercise its general discretion to detain. See Traverse at 5. Petitioners 27 are instead challenging the “legality of their respective detention” and their alleged 28 1 misclassification depriving them of a bond hearing. Id. at 6–10. Therefore, § 1252(b)(9) 2 also does not strip the Court of jurisdiction. 5 3 II. Exhaustion 4 “Exhaustion can be either statutorily or judicially required.” Acevedo-Carranza v. 5 Ashcroft, 371 F.3d 539, 541 (9th Cir. 2004). While 28 U.S.C. § 2241 “does not specifically 6 require petitioners to exhaust direct appeals before filing petitions for habeas corpus,” the 7 Ninth Circuit “require[s], as a prudential matter, that habeas petitioners exhaust available 8 judicial and administrative remedies before seeking relief under § 2241.” Castro-Cortez 9 v. INS, 239 F.3d 1037, 1047 (9th Cir. 2001), abrogated on other grounds by, Fernandez- 10 Vargas v. Gonzales, 548 U.S. 30 (2006). Prudential exhaustion may be required if: “(1) 11 agency expertise makes agency consideration necessary to generate a proper record and 12 reach a proper decision; (2) relaxation of the requirement would encourage the deliberate 13 bypass of the administrative scheme; and (3) administrative review is likely to allow the 14 agency to correct its own mistakes and to preclude the need for judicial review.” Puga v. 15 Chertoff, 488 F.3d 812, 815 (9th Cir. 2007) (citing Noriega-Lopez v. Ashcroft, 335 F.3d 16 874, 881 (9th Cir. 2003)). “[A] court may waive the prudential exhaustion requirement if 17 ‘administrative remedies are inadequate or not efficacious, pursuit of administrative 18 remedies would be a futile gesture, irreparable injury will result, or the administrative 19 proceedings would be void.’” Hernandez v. Sessions, 872 F.3d 976, 988 (9th Cir. 2017) 20 (quoting Laing v. Ashcroft, 370 F.3d 994, 1000 (9th Cir. 2004)). 21 The Court, following other courts in this District, finds that exhaustion would be 22 futile because the Board of Immigration Appeals is obligated to apply the binding 23 precedent of Matter of Yajure Hurtado, 29 I. & N. Dec. 216 (BIA 2025) to find that 24

25 5 Respondents further argue that the Court does not have jurisdiction to review Esturban’s Fourth 26 Amendment claim because “allegations of constitutional violations in removal cases ‘belong in front of an Immigration Judge, not a federal district court.’” Ret. at 11 n.2 (quoting Marvan v. Slaughter, No. CV 27 25-49-H-DLC, 2025 WL 1940043, at *3 (D. Mont. July 15, 2025)). Again, the Court disagrees for the 28 same reasons discussed above. See Perdomo v. Noem, 790 F. Supp. 3d 850, 884–85 (C.D. Cal. 2025) 1 detention is mandatory under 8 U.S.C. § 1225(b)(2). See, e.g., Garcia, 2025 WL 2549431, 2 at *4–5; Valdovinos v. Noem, No. 25-CV-2439 TWR (KSC), slip op. at 9 (S.D. Cal. 3 Sept. 25, 2025). Therefore, the Court concludes that exhausting administrative remedies 4 would be futile. 5 III. Merits 6 A. Fourth Amendment 7 Petitioner Esturban contends that his October 20, 2025, arrest during a “roving 8 checkpoint stop without a warrant and/or probable cause” violated his Fourth Amendment 9 rights. Pet. ¶ 29. Esturban asserts that the “Border Patrol officer who initially stopped 10 [him] . . . did not have a reasonable suspicion to engage in a detentive stop.” Id. Esturban 11 contends that he was “unarmed, not engaged in criminal or suspicious activities, nor did he 12 attempt[] to flee or resist arrest.” Id. Esturban was instead “targeted and arrested solely 13 on account of his Latino appearance and inability to respond to questions in English.” Id. 14 In their Return, Respondents contend that Esturban cannot base his request for 15 release from detention on Fourth Amendment violations because the Court lacks 16 jurisdiction to hear such claims. Ret. at 11 n.2. Respondent does not otherwise challenge 17 Esturban’s assertion that ICE arrested him without a warrant or probable cause. See 18 generally Ret. 19 As discussed, contrary to what Respondents claim, the Court has jurisdiction to hear 20 Esturban’s claims. See Traverse at 3–7 (collecting cases). However, Esturban does not 21 explain why release is the remedy for the alleged Fourth Amendment violations. Cf. United 22 States v. Crews, 445 U.S. 463, 474 (1980) (noting, in the criminal context, that the Fourth 23 Amendment’s “exclusionary principle” “delimits what proof the Government may offer 24 against the accused at trial, closing the courtroom door to evidence secured by official 25 lawlessness,” but an individual “is not himself a suppressible ‘fruit’”); Cruz v. Barr, 926 26 F.3d 1128, 1146 (9th Cir. 2019) (releasing petitioner on Fourth Amendment grounds 27 because fruits of the regulatory violation were the only evidence of petitioner’s alienage). 28 1 Therefore, Esturban has not met his burden in proving that release is warranted on Fourth 2 Amendment grounds. 3 B. Detention Under § 1225(b) 4 Respondents argue that the Petitioners are subject to mandatory detention under 5 § 1225(b)(2)(A) as applicants for admission. Ret. at 12–17. Petitioners argue that they 6 have been unlawfully subject to the mandatory detention provision under § 1225(b)(2), 7 which applies only to applicants for admission encountered at or near the border and not to 8 individuals like the Petitioners, “who are long-time residents of the United States” and 9 never sought admission.6 Traverse at 7–9. Petitioners allege that they are entitled to an 10 individualized bond hearing under § 1226(a), and that their mandatory detention “is a 11 radical departure from decades-long practice.” Pet. ¶ 97. 12 Section 1225 applies to “applicants for admission” who are “alien[s] present in the 13 United States who [have] not been admitted or who arrive[] in the United States (whether 14 or not at a designated port of arrival . . .).” 8 U.S.C. § 1225(a)(1). Section 1225(b)(2)(A) 15 provides in part that “an alien who is an applicant for admission, if the examining 16 immigration officer determines that an alien seeking admission is not clearly beyond a 17 doubt entitled to be admitted, . . . shall be detained for a proceeding under [§ 1229a].” Id. 18 § 1225(b)(2)(A). 19 Section 1226(a) applies to a noncitizen who is “detained pending a decision on 20 whether the alien is to be removed from the United States.” 8 U.S.C. § 1226(a). Section 21 1226 provides, so as long as the detained noncitizen is not covered by § 1226(c), that 22

23 24 6 Regarding Petitioner Velasquez, Petitioners also argue that Velasquez’s parole cannot be revoked without notice or an opportunity to be heard. Pet. ¶ 58. The Court agrees that if Velasquez was released 25 on humanitarian parole, and that parole was revoked without notice or justification, that Velasquez could be entitled to release on due process grounds. See, e.g., Salazar v. Casey, No. 25-cv-2784 JLS (VET), 26 2025 WL 3063629 (S.D. Cal. Nov. 3, 2025). However, Respondents state, and Petitioners do not dispute, that Velasquez’s humanitarian parole had expired at the time of his arrest. Ret at 2. Petitioners do not 27 address the effect of the expiration of Valasquez’s parole on the due process analysis, and the Court is not 28 persuaded that expired parole can be treated the same as a valid grant of parole. Therefore, the Court finds 1 pending such decision, the Attorney General may release the noncitizen on bond. See 2 Jennings, 583 U.S. at 306 (“Federal regulations provide that aliens detained under 3 § 1226(a) receive bond hearings at the outset of detention.”). Section 1226(c) requires 4 mandatory detention for noncitizens who have been charged with certain crimes listed in 5 § 1182(a) and § 1227(a). § 1226(c)(1). Notably, § 1226(c)(1)(E) (enacted by the Laken 6 Riley Act) requires mandatory detention for noncitizens who are (1) inadmissible under 7 §1182(a)(6)(A), (6)(C), or (7); and (2) charged with certain crimes.7 § 1226(c)(1)(E). “A 8 plain reading of this exception implies that the default discretionary bond procedures in 9 Section 1226(a) apply to a noncitizen who . . . is present without being admitted or paroled 10 but has not been implicated in any crimes as set forth in Section 1226(c).” Rodriguez v. 11 Bostock, No. 3:25-CV-05240-TMC, 2025 WL 2782499, at *17 (W.D. Wash. Sept. 30, 12 2025). 13 Here, Petitioners are currently subject to mandatory detention at the Otay Mesa 14 Detention Center pursuant to § 1225(b)(2). Pet. ¶ 1. If the Court determines that Petitioners 15 are held pursuant to § 1226 and not § 1225(b)(2), Petitioners would be entitled to bond 16 hearings in front of an immigration judge. 17 The Court follows other decisions in this Circuit finding that “seeking admission 18 requires an affirmative act such as entering the United States or applying for status, and 19 that it does not apply to individuals who, like [the Petitioners], have been residing in the 20 United States and did not apply for admission or a change of status.” Mosqueda v. Noem, 21 No. 25-CV-2304 CAS (BFM), 2025 WL 2591530, at *5 (C.D. Cal. Sept. 8, 2025); see, 22 e.g., Vazquez v. Feeley, No. 2:25-CV-01542-RFB-EJY, 2025 WL 2676082, at *11–16 (D. 23 Nev. Sept. 17, 2025); Rodriguez, 2025 WL 2782499, at *1 (“Every district court to address 24 this question has concluded that the government’s position belies the statutory text of the 25 INA, canons of statutory interpretation, legislative history, and longstanding agency 26

27 28 7 These crimes are “burglary, theft, larceny, shoplifting, or assault of a law enforcement officer offense, 1 || practice.”); Guzman v. Andrews, No. 25-CV-1015-KES-SKO (HC), 2025 WL 2617256, 2 *4—-5 (E.D. Cal. Sept. 9, 2025) (finding that petitioner who was released on bond and 3 ||rearrested was entitled to a bond hearing under § 1226); Garcia, 2025 WL 2549431, at *8 4 (providing petitioner with an individualized bond hearing under § 1226(a)); Valdovinos, 5 || No. 25-CV-2439 TWR (KSC), slip op. at 9 (same). 6 Petitioners were not encountered at a port of entry, during inspection, or near the 7 ||international boundary. Traverse at 7-10. Petitioners were arrested in the interior of the 8 United States by ICE Officers, not while presenting themselves at the gate of entry to 9 attempt to apply for admission. /d. Petitioners have also not taken any affirmative acts to 10 ||seek admission but rather have been residing in the United States for several years. I/d.; 11 also Kadir v. Larose, No. 25-CV-1045 LL (MMP), 2025 WL 2932654, at *2—3 (S.D. 12 || Cal. Oct. 15, 2025) (finding that when petitioner scheduled an appointment for admission 13 |} at the border that clearly qualified him as an applicant for admission under § 1225(b)). 14 Therefore, the Court concludes that Petitioners are not applicants for admission 15 |}under §1225(b) and are entitled a bond hearing under §1226(a). 16 CONCLUSION 17 Based on the foregoing, the Court GRANTS IN PART Petitioners’ Petition for Writ 18 Habeas Corpus (ECF No. 1), and ORDERS Respondents to provide Petitioners with 19 ||individualized bond hearings under 8 U.S.C. § 1226(a) within fourteen (14) days. 20 || Respondents SHALL NOT deny Petitioners’ bond on the basis that 8 U.S.C. § 1225(b)(2) 21 ||requires mandatory detention. The Court DENIES IN PART the Petition to the extent 22 || that Petitioners request to be released from custody and DENIES AS MOOT any request 23 || for a Temporary Restraining Order. As this concludes the litigation in this matter, the Clerk 24 Court SHALL close the file. 25 IT IS SO ORDERED. 26 || Dated: November 21, 2025 . &£ .

28 United States District Judge