Case Name in Immigration Case - Unavailable

1
3:26-cv-4834-JES-JLB
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
MENOS OSSON,
Petitioner,
v.
CHRISTOPHER J. LAROSE, Warden,
Otay Mesa Detention Center;
MARKWAYNE MULLIN; TODD
BLANCHE; TODD LYONS; and JESUS
ROCHA,
Respondents.
Case No.: 3:26-cv-4834-JES-JLB
ORDER GRANTING PETITION
FOR WRIT OF HABEAS CORPUS
[ECF No. 12]
Before the Court is Petitioner Menos Osson’s (“Petitioner”) Second Amended
Petition for Writ of Habeas Corpus. ECF No. 12 (“SAP”). On September 25, 2026,
Respondents filed their Return to the Petition. ECF No. 14 (“Return”). On October 2, 2026,
Petitioner filed a Traverse. ECF No. 15 (“Trav.”). For the reasons set forth below, this
Court GRANTS the Petition.
I. BACKGROUND
Petitioner, a native and citizen of Haiti, entered the United States on March 11, 2011.
SAP at 2. He was subsequently ordered removed, and, after a series of appeals, the order
of removal became administratively final on July 24, 2017. Return at 1–2; Trav. at 5.
Petitioner later applied for and received Temporary Protected Status (“TPS”). SAP at 2.
Case 3:26-cv-04834-JES-JLB Document 16 Filed 10/09/26 PageID.<pageID>
Page 1 of 8

2
3:26-cv-4834-JES-JLB
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
He remained at liberty in the United States for the next nine years, receiving work
authorization and maintaining a clean criminal record. Id.
On July 27, 2026, the government ended the TPS designation for Haiti. Id. The next
day, immigration officers stopped Petitioner for an immigration check as he was driving to
work. Id. Petitioner was detained and transferred to Otay Mesa Detention Center, where he
remains in custody. Id.
II. LEGAL STANDARD
A writ of habeas corpus is “available to every individual detained within the United
States.” Hamdi v. Rumsfeld, 542 U.S. 507, 525 (2004) (citing U.S. Const., Art I, § 9, cl. 2).
“The essence of habeas corpus is an attack by a person in custody upon the legality of that
custody, and ... the traditional function of the writ is to secure release from illegal custody.”
Preiser v. Rodriguez, 411 U.S. 475, 484 (1973). A court may grant a writ of habeas corpus
to a petitioner who demonstrates to be in custody in violation of the Constitution or federal
law. 28 U.S.C. § 2241(c)(3). Traditionally, “the writ of habeas corpus has served as a means
of reviewing the legality of Executive detention, and it is in that context that its protections
have been strongest.” I.N.S. v. St. Cyr, 533 U.S. 289, 301 (2001). Accordingly, challenges
to immigration-related detention are within the purview of a district court's habeas
jurisdiction. Zadvydas, 533 U.S. at 687; see also Demore v. Kim, 538 U.S. 510, 517 (2003).
Noncitizens who are subject to a final order of removal are detained under 8 U.S.C.
§ 1231. See 8 U.S.C. § 1231. Section 1231 creates a 90-day removal period during which
the noncitizen subject to the removal order must be detained. 8 U.S.C. §§ 1231(a)(1), (2).
Section 1231(a)(6) authorizes detention after the 90-day removal period but “does not
permit indefinite detention.” Zadvydas, 533 U.S. at 689. In Zadvydas, the Court limited
this post-removal-period detention to a “period reasonably necessary to bring about
removal,” finding that six months was “presumptively reasonable.” Id. at 689, 701.
After this six-month “grace period,” the noncitizen must provide “good reason to
believe that there is no significant likelihood of removal in the reasonably foreseeable
future,” whereupon the burden shifts to the Government to “respond with evidence
Case 3:26-cv-04834-JES-JLB Document 16 Filed 10/09/26 PageID.<pageID>
Page 2 of 8

3
3:26-cv-4834-JES-JLB
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
sufficient to rebut that showing.” Id. at 701; Pelich v. INS, 329 F.3d 1057, 1059 (9th Cir.
2003). Where removal is not significantly likely in the reasonably foreseeable future, “the
court should hold continued detention unreasonable and no longer authorized by statute”
and grant the writ. Owino v. Napolitano, 575 F.3d 952, 955 (9th Cir. 2009) (quoting
Zadvydas, 533 U.S. at 699–700).
III. DISCUSSION
Petitioner contends that his continued detention violates Zadvydas and 8 U.S.C. §
1231 because the “six-month grace period has expired” and “there is no significant
likelihood of removal in the reasonably foreseeable future.” SAP at 4. Respondents argue
that the Petition is “premature” because Petitioner’s detention falls within the six-month
grace period and because the Government can satisfy the “significant likelihood of
removal” standard. Return at 3.
A. The Six-Month Grace Period Under Zadvydas Has Expired.
As an initial matter, the Court must address the timing of the six-month grace period.
The heart of the parties’ disagreement is whether the six-month grace period under
Zadvydas began when Petitioner’s order of removal became final or when Petitioner was
most recently detained. Petitioner argues that the grace period expired in January 2018, six
months after Petitioner’s order of removal became administratively final. Trav. at 3.
Respondents, on the other hand, claim that the grace period has not yet expired because
Petitioner has only been in detention since July 28, 2026, which is less than six months.
Return at 3.
While neither the parties nor this Court has identified any controlling authority on
this question, courts in this district are trending towards the former interpretation. See
Ulugbek v. Larose, No. 3:26-cv-04586-RBM-DDL, 2026 WL 2547414 (S.D. Cal. Aug. 28,
2026) (collecting cases). In Ulugbek, the court explained that the "six-month presumptively
reasonable period [had] passed for Petitioner" when his removal order became final on
May 2, 2025, he was detained on June 10, 2026, and he filed his habeas petition on August
11, 2026. 2026 WL 2547414 at *1–2. The Court reasoned:
Case 3:26-cv-04834-JES-JLB Document 16 Filed 10/09/26 PageID.<pageID>
Page 3 of 8

4
3:26-cv-4834-JES-JLB
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
[A]s multiple courts in this District have concluded, "a plain reading of 8
U.S.C. § 1231(a)(1)(B)” demonstrates that “the statute is unequivocal that the
removal period begins on the ... day that Petitioner's order of removal
bec[omes] administratively final.” Nguyen v. Mullin, 2026 WL 1480803, at
*2 (S.D. Cal. May 26, 2026) (citing Baythavong v. Noem, 26-cv-01138-DMS-
MSB, ECF No. 7, at *2–3 (S.D. Cal. Apr. 6, 2026) (“Respondents failed to
cite any authority to support their position that the presumptively reasonable
period of detention only applies when the individual is actually in detention,
i.e., that the nearly seven-year period in which Petitioner was on supervision
is not relevant to the Zadvydas argument.”)); see also Nguyen v. Noem, No.
5:25-CV-176, 2026 WL 237282, at *7 (S.D. Tex. Jan. 28, 2026) (“[T]here is
nothing in the relevant statutory language to suggest that the removal period
restarts or resets automatically with another arrest or subsequent
redetention.”).
Ulugbek, 2026 WL 2547414, at *2. This position relies on the plain language of 8 U.S.C.
§ 1231(a)(1)(B), which states that the 90-day removal period begins on the latest of the
following:
(i) The date the order of removal becomes administratively final.
(ii) If the removal order is judicially reviewed and if a court orders a stay of
the removal of the [noncitizen], the date of the court's final order.
(iii) If the [noncitizen] is detained or confined (except under an immigration
process), the date the [noncitizen] is released from detention or confinement.
8 U.S.C. § 1231(a)(1)(B).
Under this view, Zadvydas extended a presumption of reasonableness three
months beyond the initial 90-day removal period. This is supported by the
language of Zadvydas itself:
While an argument can be made for confining any presumption to 90 days,
we doubt that when Congress shortened the removal period [from six months]
to 90 days in 1996 it believed that all reasonably foreseeable removals could
be accomplished in that time. We do have reason to believe, however, that
Congress previously doubted the constitutionality of detention for more than
six months. Consequently, for the sake of uniform administration in the
federal courts, we recognize that period. After this 6–month period, once the
alien provides good reason to believe that there is no significant likelihood of
Case 3:26-cv-04834-JES-JLB Document 16 Filed 10/09/26 PageID.<pageID>
Page 4 of 8

5
3:26-cv-4834-JES-JLB
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
removal in the reasonably foreseeable future, the Government must respond
with evidence sufficient to rebut that showing.
Zadvydas, 533 U.S. at 701. See also Castro-Napoles v. Noem, No. 26-cv-03212-RFL, 2026
WL 1720963, at *3 (S.D. Cal. June 15, 2026) (relying on the legislative history used by
the Supreme Court in Zadvydas to determine that the “six-month timeframe was []
repeatedly discussed in the legislative materials as the ‘period in which the government
was ordinarily able to complete the removal process’ and was marked by the ‘passage of
time since a [non-citizen’s] removal order—not detention time.’”).
The Ninth Circuit has also characterized the six-month grace period as tied to the
start of the removal period, not the date of detention. See Kim Ho Ma v. Ashcroft, 257 F.3d
1095, 1100 n.5 (9th Cir. 2001) (“However, in Zadvydas, [] the Supreme Court read the
statute to permit a ‘presumptively reasonable’ detention period of six months after a final
order of removal—that is, three months after the statutory removal period has ended.”
(internal citations omitted) (emphasis in original)).
In contrast, Respondents have provided minimal support for their position that the
six-month grace period begins at the moment of detention. They cite Pelich v. I.N.S., 329
F.3d 1057 (9th Cir. 2003), which referred to the Zadvydas grace period as a "detention
period of six months," and Xi v. U.S. I.N.S., 298 F.3d 832 (9th Cir. 2002), but both cases
address whether the Zadvydas grace period applied to the petitioners, not when the period
began.
The Court is convinced by Petitioner’s supporting authorities and hereby holds that
the presumptively reasonable six-month period of detention under Zadvydas begins when
the removal period does, not when the noncitizen is detained. See 8 U.S.C. § 1231(a)(1)(B).
Here, the six-month period in which Petitioner’s detention was presumptively reasonable
began on July 24, 2017, when Petitioner’s final order of removal became final. Trav. at 5.
It ended on January 24, 2018. Petitioner’s present detention therefore falls far outside the
six-month grace period under Zadvydas and is not entitled to any presumption of
reasonableness.
Case 3:26-cv-04834-JES-JLB Document 16 Filed 10/09/26 PageID.<pageID>
Page 5 of 8

6
3:26-cv-4834-JES-JLB
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
B. Petitioner Has Carried His Initial Burden Under Zadvydas.
With the six-month period having expired, Petitioner must provide “good reason to
believe that there is no significant likelihood of removal in the reasonably foreseeable
future.” Zadvydas, 533 U.S. at 701. Petitioner has carried this burden.
Petitioner testifies that he has not spoken with a deportation officer during his
detention and “has no idea when or if he will ever be removed to Haiti.” SAP at 2. Petitioner
does not appear to have knowledge of any removal effort, flight inquiry, travel documents,
or consular coordination in the nearly three-and-a-half months that he has been detained.
Cf. Wang v. Larose, No. 26-cv-2686-JES-BJW, 2026 WL 1388708 (S.D. Cal. May 18,
2026) (finding petitioner had not met his burden under Zadvydas when respondents had
travel documents for petitioner and previously attempted to place him on a removal flight).
To the best of Petitioner’s knowledge, Respondents have taken no action to remove
him to Haiti or any other country. See generally ECF No. 12-1 at 3. Petitioner thus has
good reason to believe this pattern of inaction will continue into the reasonably foreseeable
future, and thus he has met his burden under Zadvydas. See Joseph v. Casey, 817 F. Supp.
3d 962 (S.D. Cal. 2025) (finding petitioner had carried his burden under Zadvydas when it
had been over a decade since his order of removal became final and respondents had not
obtained travel documents for him).
C. Respondents Fail to Meet Their Burden Under Zadvydas.
The burden having shifted, Respondents must produce “evidence sufficient to rebut”
Petitioner’s showing. Zadvydas, 533 U.S. at 701. They have not done so.
Respondents claim that they are working “expeditiously” to facilitate Petitioner’s
removal. Return at 3. However, they are still in the process of preparing a request for
Petitioner’s travel documents. ECF No. 14-1 ¶ 15. This status has not changed since August
12, 2026, and there are several subsequent steps Respondents must also take before
Petitioner’s removal can be effectuated. Return at 3. After completing the request for
Petitioner’s travel documentation, Respondents must then “submit the request to ERO
Removal and International Operations headquarters for approval.” Id. After that, according
Case 3:26-cv-04834-JES-JLB Document 16 Filed 10/09/26 PageID.<pageID>
Page 6 of 8

7
3:26-cv-4834-JES-JLB
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
to Petitioner, Respondents must submit the request to Haiti, which will process it and issue
a decision. Trav. at 5. Only then can Petitioner’s removal be “effectuated promptly.” ECF
No. 14-1 ¶ 16.
Multiple courts in this district and elsewhere in the Ninth Circuit have held that
merely submitting a request for travel documents is insufficient to show a significant
likelihood of removal in the reasonably foreseeable future. See Castro-Napoles, 2026 WL
1720963, at *3; Nguyen v. Mullin, No. 26-CV-2815-JAO (JLB), 2026 WL 1480803 at *4
(S.D. Cal. May 26, 2026) (collecting cases). This Court agrees.
Here, Respondents have not even reached the stage of submitting Petitioner’s travel
document request, as they are still in the process of completing it. ECF No. 14-1 ¶ 15. On
this record, Respondents have not demonstrated that removal is significantly likely in the
reasonably foreseeable future. The Petition must, therefore, be granted.
IV. CONCLUSION
For the foregoing reasons, the Court GRANTS the Petition for Writ of Habeas
Corpus and ORDERS the following:
(1) Respondents are ORDERED to IMMEDIATELY RELEASE
Petitioner from immigration custody, on the same conditions as
previously imposed under his pre-existing order of supervision, and to
FILE a Notice of Compliance, no later than October 16, 2026,
confirming that Petitioner has been released;
(2) Respondents are ENJOINED from re-detaining Petitioner under 8
U.S.C. § 1231(a)(6), unless and until Respondents establish in a filing
with this Court that:
a. A valid, unexpired travel document exists for Petitioner’s
removal to Haiti; and
b. Petitioner has been confirmed on a specific removal flight
scheduled to depart no later than fourteen days from the date of
re-detention;
Case 3:26-cv-04834-JES-JLB Document 16 Filed 10/09/26 PageID.<pageID>
Page 7 of 8

8
3:26-cv-4834-JES-JLB
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
(3) Respondents are ENJOINED from re-detaining Petitioner without first
following all procedures set forth in 8 C.F.R. §§ 241.4(l) and/or
241.13(i); and
(4) The Clerk of Court is DIRECTED to CLOSE this case.
IT IS SO ORDERED.
Dated: October 9, 2026
Case 3:26-cv-04834-JES-JLB Document 16 Filed 10/09/26 PageID.<pageID>
Page 8 of 8