Mustafa Abdo Ogeto v. Markwayne Mullin, Secretary of the Department of Homeland Security, et al.

Opinion

1 2 3 4 5 6 7 10 11 MUSTAFA ABDO OGETO, Case No.: 26-cv-1789-RSH-MSB

12 Petitioner, ORDER DENYING AMENDED 13 v. PETITION

14 MARKWAYNE MULLIN, Secretary of the [ECF No. 2] Department of Homeland Security, et al., 15 Respondents. 16 17 18 On March 19, 2026, petitioner Mustafa Abdo Ogeto, proceeding pro se, filed a 19 petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 (the “Petition”). ECF No. 20 1. The Court referred the case to Federal Defenders of San Diego, Inc. (“FDSDI”), for 21 possible representation. ECF No. 3. Thereafter, FDSDI appeared for Petitioner and filed 22 an Amended Petition, the operative pleading. ECF No. 9. The merits are fully briefed. ECF 23 Nos. 11, 12. 25 This Court previously granted the petition in an earlier action that Petitioner brought, 26 Case No. 26-cv-388-RSH-MSB. In so ruling, the Court found that Petitioner’s immigration 27 detention without a bond hearing had become unduly prolonged in violation of due process, 28 and determined that “Petitioner is entitled to a prompt and individualized bond hearing, at 1 which Respondents must justify his continued detention by a showing of clear and 2 convincing evidence that Petitioner would likely flee or pose a danger to the community if 3 released.” Dkt. No. 7 (Order dated Feb. 11, 2026). Thereafter, Petitioner received a bond 4 hearing before an immigration judge on March 10, 2026, but the immigration judge 5 determined that Petitioner was a flight risk and denied bond in a written order the following 6 day. See ECF No. 9-1, Ex. C. 7 The Amended Petition argues that the immigration judge’s denial of bond was 8 erroneous because the immigration judge “rel[ied] on … facts that do not pass 9 constitutional muster,” and “improperly shifted the burden onto Mr. Ogeto by 10 predominantly relying on evidence provided by him—or a lack thereof—in making the 11 flight determination.” ECF No. 9 at 2. The Amended Petition continues, “[a]s a result, this 12 Court should find that most of the facts relied upon in denying Mr. Ogeto’s request for 13 release on bond violated due process and order his immediate release.” Id. The Amended 14 Petition also argues that the bond hearing violated this Court’s direction that Petitioner 15 receive an “individualized” hearing. Id. at 4-5. 17 Title 28 of the U.S. Code, Section 2241, provides that “[w]rits of habeas corpus may 18 be granted by the Supreme Court, any justice thereof, the district courts and any circuit 19 judge within their respective jurisdictions.” 28 U.S.C. § 2241(a). A detainee bears the 20 burden of demonstrating that “[h]e is in custody in violation of the Constitution or laws or 21 treaties of the United States[.]” 28 U.S.C. § 2241(c)(3). 23 The Ninth Circuit “require[s], as a prudential matter, that habeas petitioners exhaust 24 available judicial and administrative remedies before seeking relief under § 2241.” Castro- 25 Cortez v. INS, 239 F.3d 1037, 1047 (9th Cir. 2001), abrogated on other grounds by 26 Fernandez-Vargas v. Gonzales, 548 U.S. 30 (2006). A court may require prudential 27 exhaustion when: 28 1 (1) agency expertise makes agency consideration necessary to generate a proper record and reach a proper decision; (2) relaxation of the 2 requirement would encourage the deliberate bypass of the 3 administrative scheme; and (3) administrative review is likely to allow the agency to correct its own mistakes and to preclude the need for 4 judicial review. 5 Hernandez v. Sessions, 872 F.3d 976, 988 (9th Cir. 2017) (quoting Puga v. Chertoff, 488 6 F.3d 812, 815 (9th Cir. 2007)). “When a petitioner does not exhaust administrative 7 remedies, a district court ordinarily should either dismiss the petition without prejudice or 8 stay the proceedings until the petitioner has exhausted remedies, unless exhaustion is 9 excused.” Leonardo v. Crawford, 646 F.3d 1157, 1160 (9th Cir. 2011). Nonetheless, “a 10 court may waive the prudential exhaustion requirement if ‘administrative remedies are 11 inadequate or not efficacious, pursuit of administrative remedies would be a futile gesture, 12 irreparable injury will result, or the administrative proceedings would be void.’” 13 Hernandez, 872 F.3d at 988 (quoting Laing v. Ashcroft, 370 F.3d 994, 1000 (9th Cir. 14 2004)). 15 The Ninth Circuit has applied the exhaustion doctrine to circumstances similar to 16 those presented here—where a noncitizen seeks review, through a habeas proceeding, of 17 an immigration judge’s denial of bond. See Leonardo, 646 F.3d at 1160 (“Here, [the 18 petitioner] pursued habeas review of the IJ’s adverse bond determination before appealing 19 to the BIA. This short cut was improper. Leonardo should have exhausted administrative 20 remedies by appealing to the BIA before asking the federal district court to review the IJ’s 21 decision.”). Irrespective of the prudential exhaustion doctrine, however, the Court retains 22 jurisdiction to determine whether a party has complied with its earlier habeas order. Id. at 23 1161 (“[T]he district court had authority to review compliance with its earlier order 24 conditionally granting habeas relief.”). 25 Although no party has provided a transcript of the bond hearing before the 26 immigration judge, the Court has reviewed the immigration judge’s bond denial order and 27 the other exhibits submitted. The Court is not persuaded that Respondents have failed to 28 1 comply with the February 11, 2026 order. Petitioner does not dispute that the government 2 timely held a bond hearing as directed by this Court’s order; or that the immigration judge 3 denied bond after hearing evidence and argument, and concluding that Petitioner is a flight 4 risk. Petitioner also does not dispute that the immigration judge purported to impose the 5 burden of proof on the government; Petitioner’s contention, instead, is that the immigration 6 judge erred in misapplying that burden. Although Petitioner argues that the bond hearing 7 was not “individualized” as ordered by the Court, it is clear from the immigration judge’s 8 order that the immigration judge indeed considered Petitioner’s individual facts and 9 circumstances. Without opining on whether the immigration judge’s ruling was free of 10 error, this Court concludes that the proceedings here complied with this Court’s order. 11 The remainder of Petitioner’s claim, although enunciated in terms of burden shifting 12 and due process, is in essence a claim that the immigration judge’s decision to deny bond 13 was erroneous—that the reasons given by the immigration judge were not collectively 14 adequate to support the immigration judge’s conclusion that DHS established that 15 Petitioner was a flight risk. These are arguments to be decided in the first instance by the 16 BIA, the administrative tribunal established to review such claims and correct any 17 mistakes, and possessing expertise in such review. The Court declines to act as a parallel 18 appellate administrative tribunal in addressing the merits of the claimed errors here, where 19 doing so would effectively encourage the deliberate bypass of the administrative review 20 process, designed to allow the agency to correct its own errors. Consistent with the Ninth 21 Circuit’s ruling in Leonardo, the Court requires exhaustion of these issues, determines that 22 the prudential exhaustion requirement applies here, and declines to waive that requirement. 23 // 24 // 25 // 26 // 27 // 28 // 1 |}IV. CONCLUSION 2 For the foregoing reasons, the Amended Petition is DENIED. The Clerk of Court is 3 || directed to close the case.! 5 || Dated: May 18, 2026 , 6 fobut C be 7 Hon. Robert S. Huie United States District Judge

9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ! After filing his petition pro se, Petitioner filed a motion for leave to proceed in forma pauperis [ECF No. 2]. This motion is GRANTED.