1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 SERGEI IVANCHENKO, Case No.: 26-CV-1892 JLS (DDL)
12 Petitioner, ORDER DENYING PETITION FOR 13 v. WRIT OF HABEAS CORPUS
14 CHRISTOPHER LAROSE, Warden Otay (ECF No. 1) Mesa Detention Center, et al., 15 Respondents. 16 17 18 Presently before the Court is Petitioner Sergei Ivanchenko’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’ Return to Habeas Petition (“Ret.,” ECF No. 4) and Petitioner’s Traverse 21 (“Traverse,” ECF No. 5). For the reasons set forth below, the Court DENIES Petitioner’s 22 Petition for Writ of Habeas Corpus. 23 BACKGROUND 24 Petitioner is a citizen and national of Russia with Ukrainian Russian ethnicity who 25 entered the United States on a F-1 student visa on October 5, 2019. Pet. ¶ 1. Petitioner has 26 resided in the United States ever since despite his visa expiring on August 2, 2020. Ret. at 27 4, Ex. 3 at 4. On September 2, 2020, Petitioner applied for asylum. Pet. ¶ 2. Petitioner 28 has attended his biometrics appointments and interviews scheduled by USCIS and was 1 granted work authorization. Id. ¶¶ 4–6. On March 1, 2026, Petitioner was driving for Uber 2 when he accidentally approached the gate at Camp Pendleton and was stopped. Id. ¶ 7. 3 Petitioner was then transported to the Otay Mesa Detention Center where he was issued a 4 Notice to Appear and placed in removal proceedings under 8 U.S.C. § 1229a. Ret. at 2. 5 Petitioner was charged as removable under 8 U.S.C. § 1227(a)(1)(B) as an individual who 6 was admitted to the United States and has remained for a time longer than permitted by 7 law (i.e., a visa overstay). Id. On January 30, 2026, Petitioner had a bond hearing 8 scheduled pursuant to 8 U.S.C. § 1226(a). Id. at 3. Petitioner withdrew the request for a 9 bond hearing “so that he could gather more evidence.” Id. 10 LEGAL STANDARD 11 A federal prisoner challenging the execution of his or her sentence, rather than the 12 legality of the sentence itself, may file a petition for writ of habeas corpus in the district of 13 his confinement pursuant to 28 U.S.C. § 2241. See 28 U.S.C. § 2241(a). The sole judicial 14 body able to review challenges to final orders of deportation, exclusion, or removal is the 15 court of appeals. See generally 8 U.S.C. § 1252; see also Alvarez–Barajas v. Gonzales, 16 418 F.3d 1050, 1052 (9th Cir. 2005) (citing REAL ID Act, Pub. L. No. 109-13, 119 Stat. 17 231, § 106(a)). However, for claims challenging ancillary or collateral issues arising 18 independently from the removal process—for example, a claim of indefinite detention— 19 federal habeas corpus jurisdiction remains in the district court. Nadarajah v. Gonzales, 20 443 F.3d 1069, 1076 (9th Cir. 2006), abrogated on other grounds by Jennings v. Rodriguez, 21 583 U.S. 281 (2018); Alvarez v. Sessions, 338 F. Supp. 3d 1042, 1048–49 (N.D. Cal. 2018) 22 (citations omitted). 23 DISCUSSION 24 Petitioner brings the current Petition arguing that Respondents’ revocation of 25 Petitioner’s “liberty” without notice or a neutral determination of his circumstances 26 violated the Administrative Procedure Act and the Due Process Clause of the Fifth 27 Amendment. See generally Pet. Respondents argue that Petitioner is lawfully detained 28 under 8 U.S.C. § 1226(a) as an alien removable under 8 U.S.C. § 1227(a)(1)(B) as an 1 individual who overstayed their visa. Ret. at 3. Respondents contend that “Petitioner is 2 entitled to a bond hearing before an immigration judge, which he has yet to request and 3 adjudicate on the merits.” Id. at 3. Respondents also argue that any “re-detention” due 4 process argument—i.e., that Petitioner was re-detained without notice or evidence of 5 changed circumstances—fails because Petitioner has never been previously detained or 6 released.1 Id. at 4. The Court agrees with Respondents. 7 Petitioner entered the United States on a F-1 student visa which expired in August 8 of 2020, thus making him “an individual who was admitted to the United States but 9 remained for a time longer than permitted by law.” Ret. at 2; Ex. 3 at 4. Because of this, 10 Petitioner was deemed removable under 8 U.S.C. § 1227(a)(1)(B) and placed into removal 11 proceedings under § 8 U.S.C. § 1229a. Id. at 3. Section 1226(a) applies to a noncitizen 12 who is “detained pending a decision on whether the alien is to be removed from the United 13 States.” 8 U.S.C. § 1226(a). Petitioner is now detained waiting for the adjudication of his 14 removal proceedings and asylum application—thus, rightfully placing him in detention 15 subject to § 1226(a). Further, Petitioner had a bond hearing scheduled under § 1226(a) that 16 he requested to withdraw. Ret. at 3. Respondents state that “Petitioner is entitled to a bond 17 hearing before an immigration judge, which he has yet to request and adjudicate on the 18 merits.” Id. 19 Petitioner “bears the burden of demonstrating that ‘[h]e is in custody in violation of 20 the Constitution or laws or treaties of the United States.’” Zhang v. LaRose, No. 26-CV- 21 1299-RSH-SBC, 2026 WL 794202, at *1 (S.D. Cal. Mar. 20, 2026) (quoting 28 U.S.C. § 22 2241(c)(3)). The Court finds that Petitioner has not demonstrated that his custody is in 23 violation of the Constitution or laws or treaties of the United States. Petitioner does not 24 25 26 1 Respondents also make several arguments regarding jurisdiction and exhaustion that the Court need not decide to resolve the Petition. Ret. at 5–10. Nonetheless, the Court notes that it has previously found 27 jurisdiction and waived exhaustion for similar challenges. See, e.g., Salazar v. Casey, No. 25-CV-2784 28 JLS (VET), 2025 WL 3063629, at *2 (S.D. Cal. Nov. 3, 2025); Equivel-Ipina v. LaRose, No. 25-CV-2672 1 argue he is improperly detained under § 1226(a). Nor could he, as the Court finds that he 2 is properly detained under § 1226(a) as a noncitizen who is “detained pending a decision 3 on whether the alien is to be removed from the United States.” 4 Instead, Petitioner argues that his initial detention was improper because 5 Respondents “categorically revok[ed] Petitioner’s liberty” without a “prior individualized 6 custody determination.” Pet. ¶¶ 35–42.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 SERGEI IVANCHENKO, Case No.: 26-CV-1892 JLS (DDL)
12 Petitioner, ORDER DENYING PETITION FOR 13 v. WRIT OF HABEAS CORPUS
14 CHRISTOPHER LAROSE, Warden Otay (ECF No. 1) Mesa Detention Center, et al., 15 Respondents. 16 17 18 Presently before the Court is Petitioner Sergei Ivanchenko’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’ Return to Habeas Petition (“Ret.,” ECF No. 4) and Petitioner’s Traverse 21 (“Traverse,” ECF No. 5). For the reasons set forth below, the Court DENIES Petitioner’s 22 Petition for Writ of Habeas Corpus. 23 BACKGROUND 24 Petitioner is a citizen and national of Russia with Ukrainian Russian ethnicity who 25 entered the United States on a F-1 student visa on October 5, 2019. Pet. ¶ 1. Petitioner has 26 resided in the United States ever since despite his visa expiring on August 2, 2020. Ret. at 27 4, Ex. 3 at 4. On September 2, 2020, Petitioner applied for asylum. Pet. ¶ 2. Petitioner 28 has attended his biometrics appointments and interviews scheduled by USCIS and was 1 granted work authorization. Id. ¶¶ 4–6. On March 1, 2026, Petitioner was driving for Uber 2 when he accidentally approached the gate at Camp Pendleton and was stopped. Id. ¶ 7. 3 Petitioner was then transported to the Otay Mesa Detention Center where he was issued a 4 Notice to Appear and placed in removal proceedings under 8 U.S.C. § 1229a. Ret. at 2. 5 Petitioner was charged as removable under 8 U.S.C. § 1227(a)(1)(B) as an individual who 6 was admitted to the United States and has remained for a time longer than permitted by 7 law (i.e., a visa overstay). Id. On January 30, 2026, Petitioner had a bond hearing 8 scheduled pursuant to 8 U.S.C. § 1226(a). Id. at 3. Petitioner withdrew the request for a 9 bond hearing “so that he could gather more evidence.” Id. 10 LEGAL STANDARD 11 A federal prisoner challenging the execution of his or her sentence, rather than the 12 legality of the sentence itself, may file a petition for writ of habeas corpus in the district of 13 his confinement pursuant to 28 U.S.C. § 2241. See 28 U.S.C. § 2241(a). The sole judicial 14 body able to review challenges to final orders of deportation, exclusion, or removal is the 15 court of appeals. See generally 8 U.S.C. § 1252; see also Alvarez–Barajas v. Gonzales, 16 418 F.3d 1050, 1052 (9th Cir. 2005) (citing REAL ID Act, Pub. L. No. 109-13, 119 Stat. 17 231, § 106(a)). However, for claims challenging ancillary or collateral issues arising 18 independently from the removal process—for example, a claim of indefinite detention— 19 federal habeas corpus jurisdiction remains in the district court. Nadarajah v. Gonzales, 20 443 F.3d 1069, 1076 (9th Cir. 2006), abrogated on other grounds by Jennings v. Rodriguez, 21 583 U.S. 281 (2018); Alvarez v. Sessions, 338 F. Supp. 3d 1042, 1048–49 (N.D. Cal. 2018) 22 (citations omitted). 23 DISCUSSION 24 Petitioner brings the current Petition arguing that Respondents’ revocation of 25 Petitioner’s “liberty” without notice or a neutral determination of his circumstances 26 violated the Administrative Procedure Act and the Due Process Clause of the Fifth 27 Amendment. See generally Pet. Respondents argue that Petitioner is lawfully detained 28 under 8 U.S.C. § 1226(a) as an alien removable under 8 U.S.C. § 1227(a)(1)(B) as an 1 individual who overstayed their visa. Ret. at 3. Respondents contend that “Petitioner is 2 entitled to a bond hearing before an immigration judge, which he has yet to request and 3 adjudicate on the merits.” Id. at 3. Respondents also argue that any “re-detention” due 4 process argument—i.e., that Petitioner was re-detained without notice or evidence of 5 changed circumstances—fails because Petitioner has never been previously detained or 6 released.1 Id. at 4. The Court agrees with Respondents. 7 Petitioner entered the United States on a F-1 student visa which expired in August 8 of 2020, thus making him “an individual who was admitted to the United States but 9 remained for a time longer than permitted by law.” Ret. at 2; Ex. 3 at 4. Because of this, 10 Petitioner was deemed removable under 8 U.S.C. § 1227(a)(1)(B) and placed into removal 11 proceedings under § 8 U.S.C. § 1229a. Id. at 3. Section 1226(a) applies to a noncitizen 12 who is “detained pending a decision on whether the alien is to be removed from the United 13 States.” 8 U.S.C. § 1226(a). Petitioner is now detained waiting for the adjudication of his 14 removal proceedings and asylum application—thus, rightfully placing him in detention 15 subject to § 1226(a). Further, Petitioner had a bond hearing scheduled under § 1226(a) that 16 he requested to withdraw. Ret. at 3. Respondents state that “Petitioner is entitled to a bond 17 hearing before an immigration judge, which he has yet to request and adjudicate on the 18 merits.” Id. 19 Petitioner “bears the burden of demonstrating that ‘[h]e is in custody in violation of 20 the Constitution or laws or treaties of the United States.’” Zhang v. LaRose, No. 26-CV- 21 1299-RSH-SBC, 2026 WL 794202, at *1 (S.D. Cal. Mar. 20, 2026) (quoting 28 U.S.C. § 22 2241(c)(3)). The Court finds that Petitioner has not demonstrated that his custody is in 23 violation of the Constitution or laws or treaties of the United States. Petitioner does not 24 25 26 1 Respondents also make several arguments regarding jurisdiction and exhaustion that the Court need not decide to resolve the Petition. Ret. at 5–10. Nonetheless, the Court notes that it has previously found 27 jurisdiction and waived exhaustion for similar challenges. See, e.g., Salazar v. Casey, No. 25-CV-2784 28 JLS (VET), 2025 WL 3063629, at *2 (S.D. Cal. Nov. 3, 2025); Equivel-Ipina v. LaRose, No. 25-CV-2672 1 argue he is improperly detained under § 1226(a). Nor could he, as the Court finds that he 2 is properly detained under § 1226(a) as a noncitizen who is “detained pending a decision 3 on whether the alien is to be removed from the United States.” 4 Instead, Petitioner argues that his initial detention was improper because 5 Respondents “categorically revok[ed] Petitioner’s liberty” without a “prior individualized 6 custody determination.” Pet. ¶¶ 35–42. If Petitioner was previously detained and released 7 on parole, a pre-deprivation consideration of his individualized circumstances would be 8 required. See e.g., Salazar v. Casey, No. 25-CV-2784 JLS (VET), 2025 WL 3063629, at 9 *4 (S.D. Cal. Nov. 3, 2025) (“The Court finds that all three factors support a finding that 10 the Government’s revocation of Petitioner’s parole without notification, reasoning, or an 11 opportunity to be heard, denied Petitioner of her due process rights.”). However, here, 12 Petitioner has never been detained, and thus, there has been no initial determination by 13 DHS that Petitioner poses no danger to the community and is not a flight risk. See id. 14 (“Since DHS’s initial determination that Petitioner should be paroled because she posed no 15 danger to the community and was not a flight risk, there is no evidence that these findings 16 have changed.”). Rather, DHS’s initial determination of Petitioner’s danger to the 17 community will be during his § 1226(a) bond hearing, which has yet to occur. Ret. at 3. 18 Further, Petitioner argues that his work authorization and pending asylum application 19 create a liberty interest in remaining out of custody, but Petitioner does not provide any 20 authority supporting this assertion nor is the Court aware of any. Pet. ¶¶ 22–34. 21 The Court is not convinced that Petitioner has demonstrated a liberty interest in his 22 release requiring any additional due process protections than Petitioner is already entitled. 23 Petitioner will receive a bond hearing under § 1226(a), if he requests one. Therefore, the 24 Petition is DENIED on due process grounds. 25 Regarding Petitioner’s APA argument, Petitioner also argues that Respondents have 26 violated the APA by categorically revoking Petitioner’s liberty and transferring him to the 27 Otay Mesa Detention Center without consideration of his individualized facts and 28 circumstances. Pet. ¶¶ 53–56. However, the Court agrees with Respondents that 1 || “[Section] 704’s requirement that to proceed under the APA, agency action must be final 2 otherwise reviewable by statute is an independent element without which courts may 3 ||not determine APA claims.” Navajo Nation v. Dep’t of the Interior, 876 F.3d 1144, 1171 4 || (9th Cir. 2017). Here, Petitioner’s removal proceedings are ongoing, and he has yet to have 5 ||his initial § 1226(a) bond hearing. Ret. at 10. There is no final agency action to be 6 || reviewed for abuse of discretion as Petitioner requests. Therefore, the Petition is DENIED 7 |}on APA grounds. 8 CONCLUSION 9 Based on the foregoing, the Court DENIES Petitioner’s Petition for Writ of Habeas 10 || Corpus (ECF No. 1). Regarding Petitioner’s concerns that the Immigration Judge will deny 11 bond for lack of jurisdiction, Traverse at 3-4, Petitioner can file another petition if bond is 12 || denied on jurisdictional grounds. The Court finds ordering a bond hearing under § 1226(a) 13 premature at this stage, as Respondents correctly state that he “is entitled to a bond hearing 14 || before an immigration judge” and can request one at any time. Ret. at 3. As this concludes 15 || the litigation in this matter, the Clerk SHALL CLOSE the file. 16 IT IS SO ORDERED. 17 Dated: April 10, 2026 . . (ee 19 United States District Judge 20 21 22 23 24 25 26 27 28