1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 TARIG AU ABDALLA YAGOUB, Case No.: 26-CV-914 JLS (JLB)
12 Petitioner, ORDER GRANTING IN PART 13 v. AMENDED PETITION FOR WRIT OF HABEAS CORPUS 14 CHRISTOPHER LAROSE, Warden Otay
Mesa Detention Center, et al., 15 (ECF No. 7) Respondents. 16 17 18 Presently before the Court is Tarig Au Abdalla Yagoub’s Amended Petition for a 19 Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 (“Pet.,” ECF No. 7). Also before the 20 Court is Respondents’ Return to Petition for Writ of Habeas Corpus (“Ret.,” ECF No. 9) 21 and Petitioner’s Traverse (ECF No. 10). For the reasons set forth below, the Court 22 GRANTS IN PART the Amended Petition for a Writ of Habeas Corpus. 23 BACKGROUND 24 Petitioner, a citizen of Sudan, alleges that he has been detained by the United States 25 Department of Homeland Security’s (“DHS”) Immigration and Customs Enforcement 26 (“ICE”) division at the Otay Mesa Detention Center since July 12, 2025, when he entered 27 the United States. Pet. at 2. Petitioner fled Sudan because of the ongoing civil war and 28 violence against his family. Id. Petitioner sought asylum at the San Ysidro Port of Entry 1 on July 12, 2025. Id. Petitioner received a positive credible fear determination, Ret. at 2, 2 and has applied for asylum, Pet. at 3. Petitioner has had five court appearances in his 3 immigration case so far, the last being on November 19, 2025, and the next currently 4 scheduled for May 27, 2026. Id. 5 LEGAL STANDARD 6 A federal prisoner challenging the execution of his or her sentence, rather than the 7 legality of the sentence itself, may file a petition for writ of habeas corpus in the district of 8 his confinement pursuant to 28 U.S.C. § 2241. See 28 U.S.C. § 2241(a). The sole judicial 9 body able to review challenges to final orders of deportation, exclusion, or removal is the 10 court of appeals. See generally 8 U.S.C. § 1252; see also Alvarez–Barajas v. Gonzales, 11 418 F.3d 1050, 1052 (9th Cir. 2005) (citing REAL ID Act, Pub. L. No. 109-13, 119 Stat. 12 231, § 106(a)). However, for claims challenging ancillary or collateral issues arising 13 independently from the removal process—for example, a claim of indefinite detention— 14 federal habeas corpus jurisdiction remains in the district court. Nadarajah v. Gonzales, 15 443 F.3d 1069, 1076 (9th Cir. 2006), abrogated on other grounds by Jennings v. Rodriguez, 16 138 S. Ct. 830 (2018); Alvarez v. Sessions, 338 F. Supp. 3d 1042, 1048–49 (N.D. Cal. 17 2018) (citations omitted). 18 DISCUSSION 19 I. Jurisdiction 20 Respondents argue that this Court lacks jurisdiction under 8 U.S.C. § 1252(g) 21 because Petitioner’s claim arises from the decision to commence removal proceedings. 22 Ret. at 3–4. The Court disagrees. 23 Section 1252(g) provides that “no court shall have jurisdiction to hear any cause or 24 claim by or on behalf of any alien arising from the decision or action by the Attorney 25 General to commence proceedings, adjudicate cases, or execute removal orders against any 26 alien under this chapter.” 8 U.S.C. § 1252(g). Section 1252(g) should be read “narrowly” 27 as to apply “only to three discrete actions that the Attorney General may take: her ‘decision 28 or action’ to ‘commence proceedings, adjudicate cases, or execute removal orders.’” 1 Ibarra-Perez v. United States, No. 24-631, 2025 WL 2461663, at *6 (9th Cir. Aug. 27, 2 2025) (quoting Reno v. American-Arab Anti-Discrimination Committee, 525 U.S. 471, 482, 3 487 (1999)). Section 1252(g) “does not prohibit challenges to unlawful practices merely 4 because they are in some fashion connected to removal orders.” Id. at *7. Section 1252(g) 5 does not bar due process claims. Walters v. Reno, 145 F.3d 1032, 1052–53 (9th Cir. 1998) 6 (finding that the petitioners’ objective was not to review the merits of their proceeding, but 7 rather “to enforce their constitutional rights to due process in the context of those 8 proceedings”). 9 Here, Petitioner does not challenge the decision to commence removal proceedings 10 or any act to adjudicate or execute a removal order. Rather, Petitioner is challenging his 11 prolonged detention without a bond hearing. Traverse at 2–3. Petitioner is enforcing his 12 “constitutional rights to due process in the context of the removal proceedings—not the 13 legitimacy of the removal proceedings or any removal order.” Garcia v. Noem, No. 25- 14 CV-2180-DMS-MMP, 2025 WL 2549431, at *4 (S.D. Cal. Sept. 3, 2025). Therefore, 15 § 1252(g) does not strip the Court of jurisdiction. 16 II. Merits 17 “Neither the Ninth Circuit nor the Supreme Court have provided guidance regarding 18 the point at which an immigration detainee’s prolonged mandatory detention becomes 19 unconstitutional.” Amado v. United States Dep’t of Just., No. 25CV2687-LL(DDL), 2025 20 WL 3079052, at *5 (S.D. Cal. Nov. 4, 2025). However, “[n]early all district courts that 21 have considered [the constitutionality of prolonged mandatory detention] agree that 22 prolonged mandatory detention pending removal proceedings, without a bond hearing, 23 will—at some point—violate the right to due process.” Singh v. Barr, 400 F. Supp. 3d 24 1005 (S.D. Cal. 2019) (internal quotation marks and citations omitted) (cleaned up) 25 (collecting cases). In determining whether detention has become unreasonable, courts 26 evaluate factors including “the total length of detention to date, the likely duration of future 27 detention, and the delays in the removal proceedings caused by the petitioner and the 28 government.” Lopez v. Garland, 631 F. Supp. 3d 870, 879 (E.D. Cal. 2022). Some courts 1 also consider the conditions of detention and the likelihood that the removal proceedings 2 will result in a final order of removal. See, e.g., Sadeqi v. LaRose, No. 25-CV-2587-RSH- 3 BJW, 2025 WL 3154520, at *3 (S.D. Cal. Nov. 12, 2025). 4 The Court finds that Petitioner has established he is entitled to a bond hearing. 5 Petitioner’s length of detention, nearly eight months, without a bond hearing weighs in 6 Petitioner’s favor. Courts have found detention of similar lengths without a bond hearing 7 weighs towards a finding that detention has become unreasonable. See, e.g., Guatam v. 8 Corr. Corp of Am., No. 3:25-CV-3600-JES-DEB, 2026 WL 25846, at *4 (S.D. Cal. Jan. 5, 9 2026) (finding that one-year detention weighed in favor of granting a bond hearing); 10 Sadeqi, 2025 WL 3154520, at *4 (finding that eleven month detention without a bond 11 hearing “absent meaningful rebuttal by [r]espondents” was unreasonable and violated due 12 process); Amado, 2025 WL 3079052, at *5 (“Courts have found detention over seven 13 months without a bond hearing weighs toward a finding that it is unreasonable.”). The 14 length of detention therefore favors Petitioner.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 TARIG AU ABDALLA YAGOUB, Case No.: 26-CV-914 JLS (JLB)
12 Petitioner, ORDER GRANTING IN PART 13 v. AMENDED PETITION FOR WRIT OF HABEAS CORPUS 14 CHRISTOPHER LAROSE, Warden Otay
Mesa Detention Center, et al., 15 (ECF No. 7) Respondents. 16 17 18 Presently before the Court is Tarig Au Abdalla Yagoub’s Amended Petition for a 19 Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 (“Pet.,” ECF No. 7). Also before the 20 Court is Respondents’ Return to Petition for Writ of Habeas Corpus (“Ret.,” ECF No. 9) 21 and Petitioner’s Traverse (ECF No. 10). For the reasons set forth below, the Court 22 GRANTS IN PART the Amended Petition for a Writ of Habeas Corpus. 23 BACKGROUND 24 Petitioner, a citizen of Sudan, alleges that he has been detained by the United States 25 Department of Homeland Security’s (“DHS”) Immigration and Customs Enforcement 26 (“ICE”) division at the Otay Mesa Detention Center since July 12, 2025, when he entered 27 the United States. Pet. at 2. Petitioner fled Sudan because of the ongoing civil war and 28 violence against his family. Id. Petitioner sought asylum at the San Ysidro Port of Entry 1 on July 12, 2025. Id. Petitioner received a positive credible fear determination, Ret. at 2, 2 and has applied for asylum, Pet. at 3. Petitioner has had five court appearances in his 3 immigration case so far, the last being on November 19, 2025, and the next currently 4 scheduled for May 27, 2026. Id. 5 LEGAL STANDARD 6 A federal prisoner challenging the execution of his or her sentence, rather than the 7 legality of the sentence itself, may file a petition for writ of habeas corpus in the district of 8 his confinement pursuant to 28 U.S.C. § 2241. See 28 U.S.C. § 2241(a). The sole judicial 9 body able to review challenges to final orders of deportation, exclusion, or removal is the 10 court of appeals. See generally 8 U.S.C. § 1252; see also Alvarez–Barajas v. Gonzales, 11 418 F.3d 1050, 1052 (9th Cir. 2005) (citing REAL ID Act, Pub. L. No. 109-13, 119 Stat. 12 231, § 106(a)). However, for claims challenging ancillary or collateral issues arising 13 independently from the removal process—for example, a claim of indefinite detention— 14 federal habeas corpus jurisdiction remains in the district court. Nadarajah v. Gonzales, 15 443 F.3d 1069, 1076 (9th Cir. 2006), abrogated on other grounds by Jennings v. Rodriguez, 16 138 S. Ct. 830 (2018); Alvarez v. Sessions, 338 F. Supp. 3d 1042, 1048–49 (N.D. Cal. 17 2018) (citations omitted). 18 DISCUSSION 19 I. Jurisdiction 20 Respondents argue that this Court lacks jurisdiction under 8 U.S.C. § 1252(g) 21 because Petitioner’s claim arises from the decision to commence removal proceedings. 22 Ret. at 3–4. The Court disagrees. 23 Section 1252(g) provides that “no court shall have jurisdiction to hear any cause or 24 claim by or on behalf of any alien arising from the decision or action by the Attorney 25 General to commence proceedings, adjudicate cases, or execute removal orders against any 26 alien under this chapter.” 8 U.S.C. § 1252(g). Section 1252(g) should be read “narrowly” 27 as to apply “only to three discrete actions that the Attorney General may take: her ‘decision 28 or action’ to ‘commence proceedings, adjudicate cases, or execute removal orders.’” 1 Ibarra-Perez v. United States, No. 24-631, 2025 WL 2461663, at *6 (9th Cir. Aug. 27, 2 2025) (quoting Reno v. American-Arab Anti-Discrimination Committee, 525 U.S. 471, 482, 3 487 (1999)). Section 1252(g) “does not prohibit challenges to unlawful practices merely 4 because they are in some fashion connected to removal orders.” Id. at *7. Section 1252(g) 5 does not bar due process claims. Walters v. Reno, 145 F.3d 1032, 1052–53 (9th Cir. 1998) 6 (finding that the petitioners’ objective was not to review the merits of their proceeding, but 7 rather “to enforce their constitutional rights to due process in the context of those 8 proceedings”). 9 Here, Petitioner does not challenge the decision to commence removal proceedings 10 or any act to adjudicate or execute a removal order. Rather, Petitioner is challenging his 11 prolonged detention without a bond hearing. Traverse at 2–3. Petitioner is enforcing his 12 “constitutional rights to due process in the context of the removal proceedings—not the 13 legitimacy of the removal proceedings or any removal order.” Garcia v. Noem, No. 25- 14 CV-2180-DMS-MMP, 2025 WL 2549431, at *4 (S.D. Cal. Sept. 3, 2025). Therefore, 15 § 1252(g) does not strip the Court of jurisdiction. 16 II. Merits 17 “Neither the Ninth Circuit nor the Supreme Court have provided guidance regarding 18 the point at which an immigration detainee’s prolonged mandatory detention becomes 19 unconstitutional.” Amado v. United States Dep’t of Just., No. 25CV2687-LL(DDL), 2025 20 WL 3079052, at *5 (S.D. Cal. Nov. 4, 2025). However, “[n]early all district courts that 21 have considered [the constitutionality of prolonged mandatory detention] agree that 22 prolonged mandatory detention pending removal proceedings, without a bond hearing, 23 will—at some point—violate the right to due process.” Singh v. Barr, 400 F. Supp. 3d 24 1005 (S.D. Cal. 2019) (internal quotation marks and citations omitted) (cleaned up) 25 (collecting cases). In determining whether detention has become unreasonable, courts 26 evaluate factors including “the total length of detention to date, the likely duration of future 27 detention, and the delays in the removal proceedings caused by the petitioner and the 28 government.” Lopez v. Garland, 631 F. Supp. 3d 870, 879 (E.D. Cal. 2022). Some courts 1 also consider the conditions of detention and the likelihood that the removal proceedings 2 will result in a final order of removal. See, e.g., Sadeqi v. LaRose, No. 25-CV-2587-RSH- 3 BJW, 2025 WL 3154520, at *3 (S.D. Cal. Nov. 12, 2025). 4 The Court finds that Petitioner has established he is entitled to a bond hearing. 5 Petitioner’s length of detention, nearly eight months, without a bond hearing weighs in 6 Petitioner’s favor. Courts have found detention of similar lengths without a bond hearing 7 weighs towards a finding that detention has become unreasonable. See, e.g., Guatam v. 8 Corr. Corp of Am., No. 3:25-CV-3600-JES-DEB, 2026 WL 25846, at *4 (S.D. Cal. Jan. 5, 9 2026) (finding that one-year detention weighed in favor of granting a bond hearing); 10 Sadeqi, 2025 WL 3154520, at *4 (finding that eleven month detention without a bond 11 hearing “absent meaningful rebuttal by [r]espondents” was unreasonable and violated due 12 process); Amado, 2025 WL 3079052, at *5 (“Courts have found detention over seven 13 months without a bond hearing weighs toward a finding that it is unreasonable.”). The 14 length of detention therefore favors Petitioner. 15 As to the likely duration of future detention, Petitioner argues that he “has reason to 16 anticipate significant future detention” since his merits hearing is not for another three 17 months, at which point his asylum petition will be decided, subject to an appeal process 18 that could go on for another undetermined amount of time. Pet. at 8–9. The Court agrees, 19 since Respondents “cannot predict with any degree of confidence when the BIA appeal 20 will be resolved.” Masood v. Barr, No. 19-CV-07623-JD, 2020 WL 95633, at *3 (N.D. 21 Cal. Jan. 8, 2020). Respondents argue only that Petitioner’s final merits hearing is 22 scheduled for May 27, 2026, and that Respondents have not delayed removal proceedings. 23 Ret. at 9. Therefore, the likely duration of future detention weighs in Petitioner’s favor. 24 Delay in removal proceedings is neutral since the record does not suggest delay by 25 Respondents nor Petitioner. See generally Pet.; Ret. Balancing the discussed factors, the 26 Court concludes that Petitioner’s detention has become unreasonably prolonged, and 27 therefore, Petitioner is entitled to a bond hearing. 28 / / / I CONCLUSION 2 Based on the foregoing, the Court GRANTS IN PART! Petitioner’s Amended 3 || Petition for a Writ of Habeas Corpus (ECF No. 7), and ORDERS Respondents to provide 4 || Petitioner with an individualized bond hearing within fourteen (14) days before a neutral 5 ||immigration judge in which the government bears the burden of establishing by clear and 6 || convincing evidence that Petitioner is a danger to the community or a flight risk if released. 7 no hearing occurs within fourteen days of this Order, Petitioner shall be released from 8 || Respondents’ custody. 9 The Parties SHALL file a Joint Status Report by March 27, 2026, informing the 10 || Court of the outcome of the hearing. The Clerk SHALL close the file. 11 IT IS SO ORDERED. 12 Dated: March 10, 2026 13 med sd tie 14 on. Janis L. Sammartino 15 United States District Judge 16 17 18 19 20 21 22 23 24 25 26 a7lo0002~2~— 2g ||! The Court declines to address the issues raised by Petitioner regarding the neutrality of immigration courts generally.