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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
MOHAMMAD RASH,
Petitioner,
v.
CHRISTOPHER J. LAROSE, et al.,
Respondents.
Case No.: 26v0008-LL-DEB
ORDER GRANTING PETITION
FOR WRIT OF HABEAS CORPUS
UNDER 28 U.S.C. § 2241
[ECF No. 1]
Before the Court is Petitioner Mohammad Rash’s Petition for a Writ of Habeas
Corpus under 28 U.S.C. § 2241. ECF No. 1 (“Pet.”). Respondents filed a Return in
opposition to the Petition [ECF No. 4 (“Ret.”)], and Petitioner filed a Traverse [ECF No. 5
(“Traverse”)]. For the reasons set forth below, the Court GRANTS the Petition.
I. 	BACKGROUND
Petitioner is a citizen of Iran who was born to “ethnic minority Kurdish” parents and
alleges that he and his family were discriminated against and persecuted by the Iranian
government. Pet. ¶ 16. In Iran, Petitioner was detained and tortured by the Iranian regime
twice for his political views. Id. ¶¶ 17–18. After his second detention, Petitioner fled Iran
and entered the United States on November 18, 2024. Id. ¶ 19. He was immediately taken
into custody by the Department of Homeland Security’s (“DHS”) Immigration and
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Customs Enforcement (“ICE”) and has been detained in Otay Mesa Detention Center
(“OMDC”). Id.
On April 16, 2025, Petitioner submitted his asylum application (Pet. ¶ 23), and on
September 22, 2025, Petitioner was granted deferral of removal under the Convention
Against Torture (“CAT”) (Ret. at 2; ECF No. 4-4 at 2). However, on October 21, 2025,
DHS appealed the Immigration Judge’s decision to the Board of Immigration Appeals
(“BIA”). Pet. ¶ 26; Ret. at 2; ECF No. 4-5 at 5–6. Because the appeal remains pending,
there is no final order of removal at this time. Ret. at 2.
Petitioner remains detained at OMDC under 8 U.S.C. § 1225(b)(1)(B)(ii). Ret. at 2.
Petitioner alleges that he has been suffering from depression and anxiety while in detention
and lost nearly 20 kilograms in weight. Pet ¶ 34. On January 2, 2026, Petitioner filed the
instant Petition, alleging that his prolonged detention violates the Fifth Amendment’s Due
Process Clause. Id. ¶¶ 36–47. He seeks a writ of habeas corpus directing Respondents to
immediately release him from custody or in the alternative, a bond hearing before a neutral
decisionmaker. Id. at 15.
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 laws or treaties of the United States.” 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.” Hamdi, 542
U.S. at 536 (quoting 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 v. Davis, 533 U.S. 678, 687 (2001) (“Section 2441 habeas
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proceedings are available as a forum for statutory and constitutional challenges to post-
removal-period detention.”); see also Lopez-Marroquin v. Barr, 955 F.3d 759 (9th Cir.
2020) (“[D]istrict courts retain jurisdiction under 28 U.S.C. § 2241 to consider habeas
challenges to immigration detention that are sufficiently independent of the merits of [a]
removal order.”)).
III. 	DISCUSSION
A. 	Jurisdiction
Respondents argue that as a threshold matter, Petitioner’s claims and requested relief
are jurisdictionally barred under 8 U.S.C. § 1252(g). Ret. at 3–4. Specifically, Respondents
argue that Petitioner’s claims are barred because they arise “from the decision or action of
the Attorney General to commence removal proceedings,” which prohibits district court
jurisdiction. Ret. at 4. The Court disagrees.
Section 1252(g) states that “[e]xcept as provided in this section and notwithstanding
any other provision of law (statutory or nonstatutory), including section 2241 of Title 28,
or any other habeas corpus provision, . . . no court shall have jurisdiction to hear any cause
or claim by or on behalf of any [noncitizen] arising from the decision or action by the
Attorney General to commence proceedings, adjudicate cases, or execute removal orders
against any [noncitizen] under this chapter.” 8 U.S.C. § 1252(g). However, the Supreme
Court has narrowly interpreted § 1252(g) as applying “only to three discrete actions that
the Attorney General may take: her ‘decision or action’ to ‘commence proceedings,
adjudicate cases, or execute removal orders.’” Reno v. Am.-Arab Anti-Discrimination
Comm., 525 U.S. 471, 482 (1999); see also Ibarra-Perez v. United States, 154 F.4th 989,
991 (9th Cir. 2025) (“The Supreme Court has instructed that we should read § 1252(g)
narrowly.”); Ceesay v. Kurzdorfer, 781 F. Supp. 3d 137, 152 (W.D.N.Y. 2025) (noting that
courts have “distinguished between challenges to ICE’s discretion to execute a removal
order, which are barred, and challenges to the manner in which ICE executes the removal
order, which are not.”).
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In fact, the Supreme Court has previously rejected as “implausible” Respondents’
suggestion that § 1252(g) covers “all claims arising from deportation proceedings” or
imposes “a general jurisdictional limitation.” Dep’t of Homeland Sec. v. Regents of the
Univ. of California, 140 S. Ct. 1891, 1907 (2020) (citing Reno., 525 U.S. at 482. In other
words, Section 1252(g) “does not prohibit challenges to unlawful practices merely because
they are in some fashion connected to removal orders.” Ibarra-Perez, 154 F.4th at 997.
Here, Petitioner is not challenging the commencement of removal proceedings but
is instead claiming a lack of legal authority to detain him for a prolonged time without a
bond hearing during the removal proceedings. See Ibarra-Perez, 2025 WL 2461663, at *2
(noting that a claim based on a lack of legal authority to execute a removal order due to a
violation 	of 	a 	court 	order, 	the 	Constitution, 	[Immigration 	and 	National 	Act], 	or
international law, does not challenge the decision or action to execute a removal order).
Therefore, the Court finds that § 1252(g) does not limit the Court’s jurisdiction in this
matter.
B. 	Fifth Amendment Due Process Clause
Petitioner argues that his prolonged detention without a bond hearing violates the
Fifth Amendment’s Due Process Clause. Pet. ¶¶ 36–47. Respondents contend there is no
due process violation because Petitioner is detained pursuant to § 1225(b)(1), which
mandates detention through the conclusion of the removal process, and that is all the
process he will receive. Ret. at 5–6.
The Due Process Clause of the Fifth Amendment provides that no person shall be
“deprived of life, liberty, or property, without due process of law.” U.S. Const. amend. V.
“It is well established that the Fifth Amendment entitles [noncitizens] to due process of
law in deportation proceedings.” Demore v. Kim, 538 U.S. 510, 523 (2003) (citing Reno v.
Flores, 507 U.S. 292, 306 (1993)). “At the same time, however, this Court has recognized
detention 	during 	deportation 	proceedings 	as 	a 	constitutionally 	valid 	aspect 	of 	the
deportation process.” Id. The Ninth Circuit has questioned the constitutionality of certain
immigration detention statutes, including § 1225(b):
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We have grave doubts that any statute that allows for arbitrary prolonged
detention without any process is constitutional or that those who founded our
democracy precisely to protect against the government’s arbitrary deprivation
of liberty would have thought so. Arbitrary civil detention is not a feature of
our American government. “[L]iberty is the norm, and detention prior to trial
or without trial is the carefully limited exception.” United States v. Salerno,
481 U.S. 739, 755, 107 S. Ct. 2095, 95 L.Ed.2d 697 (1987). Civil detention
violates due process outside of “certain special and narrow nonpunitive
circumstances.” Zadvydas v. Davis, 533 U.S. 678, 690, 121 S. Ct. 2491, 150
L.Ed.2d 653 (2001) (internal quotation marks and citation omitted).
Rodriguez v. Marin, 909 F.3d 252, 256–57 (9th Cir. 2018) (alteration in original).
The Court agrees with those courts that have found a noncitizen detained under
§ 1225(b) for a prolonged period without an individualized bond hearing may assert a
constitutional right to due process. See Sadeqi v. LaRose, No. 25-CV-2587-RSH-BJW,
2025 WL 3154520, at *2 (S.D. Cal. Nov. 12, 2025) (“This Court agrees with the majority
position that a petitioner detained under Section 1225(b)(1) may assert a due process
challenge to prolonged mandatory detention without a bond hearing.”); Maksin v. Warden,
Golden State Annex, No. 1:25-CV-00955-SKO (HC), 2025 WL 2879328, at *3 (E.D. Cal.
Oct. 9, 2025) (“Several courts including the Third, Sixth, and Ninth Circuit, as well as
numerous district courts, have found that unreasonably long detention periods may violate
the due process clause.” (collecting cases)); Abdul-Samed v. Warden of Golden State Annex
Det. 	Facility, No. 1:25-CV-00098-SAB-HC, 2025 	WL 	2099343, at 	*6 	(E.D. 	Cal.
July 25, 2025) (“[E]ssentially all district courts that have considered the issue agree that
prolonged mandatory detention pending removal proceedings, without a bond hearing,
‘will—at some point—violate the right to due process.’” (quoting Martinez v. Clark,
No. C18-1669-RAJ-MAT, 2019 WL 5968089, at *6 (W.D. Wash. May 23, 2019), report
and recommendation adopted, No. 18-CV-01669-RAJ, 2019 WL 5962685 (W.D. Wash.
Nov. 13, 2019))); Kydyrali v. Wolf, 499 F. Supp. 3d 768, 772 (S.D. Cal. 2020) (“[T]he
Court joins the majority of courts across the country in concluding that an unreasonably
prolonged detention under 8 U.S.C. § 1225(b) without an individualized bond hearing
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violates due process.”); Banda v. McAleenan, 385 F. Supp. 3d 1099, 1116–17 (W.D. Wash.
2019).
Respondents rely on two cases to support their argument that § 1225(b)(1) and its
provision for mandatory detention provides all the process that Petitioner is due. Ret. at 7–
9 (citing Dep’t of Homeland Sec. v. Thuraissigiam, 591 U.S. 103 (2020), and Shaughnessy
v. United States ex rel. Mezei, 345 U.S. 206 (1953)). However, the Court is not persuaded.
In Thuraissigiam, the habeas petitioner argued that the Illegal Immigration Reform
and Immigrant Responsibility Act of 1996 violated “his right to due process by precluding
judicial review of his allegedly flawed credible-fear proceeding.” Thuraissigiam, 591 U.S.
at 138. The Supreme Court found that the petitioner, as an applicant for admission, was
provided “the right to a determination whether he had a significant possibility of
establishing eligibility for asylum” pursuant to § 1225(b), and that he had “only those rights
regarding admission that Congress has provided by statute.” Id. at 140 (internal quotation
marks 	and 	brackets 	omitted) 	(quoting 	§§ 	1225(b)(1)(B)(ii), 	(v)). 	The 	Court 	finds
Thuraissigiam addressed a noncitizen’s right to challenge admission, not detention. See,
e.g., Sadeqi, 2025 WL 3154520, at *2 (“This Court likewise agrees with those district
courts that interpret Thuraissigiam as circumscribing an arriving [noncitizen’s] due process
rights to admission, rather than limiting that person’s ability to challenge detention.”);
Aviles-Mena v. Kaiser, No. 25-CV-06783-RFL, 2025 WL 2578215, at *4 (N.D. Cal. Sept.
5, 2025) (finding Thuraissigiam inapplicable to cases challenging detention).
The Court finds Mezei is also distinguishable. Mezei involved a noncitizen who had
been “permanently excluded from the United States on security grounds but stranded in his
temporary haven on Ellis Island because other countries [would] not take him back.” Mezei,
345 U.S. at 207. The Supreme Court recognized Mezei’s exclusion for security reasons as
different from noncitizens who may be released from detention on bond. Id. at 216 (“An
exclusion proceeding grounded on danger to the national security, however, presents
different considerations; neither the rationale nor the statutory authority for such release
exists.”). The facts are significantly different because Petitioner has not been excluded as
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a security risk, does not have a final order of removal, and has been granted asylum. See
Rosales-Garcia v. Holland, 322 F.3d 386, 413–14 (6th Cir. 2003) (“[T]he Mezei Court
explicitly grounded its decision in the special circumstances of a national emergency and
the determination by the Attorney General that Mezei presented a threat to national
security.”); Kydyrali, 499 F. Supp. 3d at 772 (finding Mezei inapposite to issue of whether
prolonged detention without a bond hearing violates due process).
Respondents argue that applying the three-factor balancing test articulated in Lopez
v. Garland, 631 F. Supp. 3d 870, 879 (E.D. Cal. 2022) demonstrates that Petitioner’s
detention is not unconstitutional at this stage. Ret. at 8–11. Petitioner contends that
applying the balancing test articulated in either Lopez or Banda v. McAleenan, 385 F. Supp.
3d 1099, 1106 (W.D. Wash. 2019), shows that his detention violates his due process rights.
Pet. ¶¶ 40–47; Traverse at12–13.
Courts in the Ninth Circuit have used various factor tests to determine whether due
process requires a bond hearing in immigration detention cases, including the Banda and
Lopez tests. In Banda, the court considered the following factors to determine whether
prolonged mandatory detention under § 1225(b) in a particular case violates the Due
Process Clause: “(1) the total length of detention to date; (2) the likely duration of future
detention; (3) the conditions of detention; (4) delays in the removal proceedings caused by
the detainee; (5) delays in the removal proceedings caused by the government; and (6) the
likelihood that the removal proceedings will result in a final order of removal.” Banda, 385
F. Supp. 3d at 1118 (quoting Jamal A. v. Whitaker, 358 F. Supp. 3d 853, 858–59 (D. Minn.
2019)). Similarly, in Lopez, the case that Respondents rely on, the court considered the
first, second, fourth, and fifth Banda factors for its analysis. See Lopez, 631 F. Supp. 3d at
879 (“the Court will look to the total length of detention to date, the likely duration of
future detention, and the delays in the removal proceeding caused by the petitioner and the
government.”) Therefore, this Court will apply the Banda factors.
The Court first considers the length of detention. The total length of detention is
considered the most important factor. Banda, 385 F. Supp. 3d at 1118. To date, Petitioner
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has been in detention for over fourteen months. Courts have found detentions of similar
and shorter duration without a bond hearing weigh toward a finding that they are
unreasonable. See, e.g., Gao v. LaRose, No. 25-CV-2084-RSH-SBC, 2025 WL 2770633,
at *5 (S.D. Cal. Sept. 26, 2025) (over ten months); Masood v. Barr, No. 19-CV-07623-JD,
2020 WL 95633, at *3 (N.D. Cal. Jan. 8, 2020) (nearly nine months); Cabral v. Decker,
331 F. Supp. 3d 255, 261 (S.D.N.Y. 2018) (over seven months); Brissett v. Decker, 324 F.
Supp. 3d 444, 452 (S.D.N.Y. 2018) (over nine months). Therefore, the Court finds the
length of detention weighs in favor of Petitioner.
Next, the Court considers the second factor: likely duration of future detention.
Petitioner’s future detention can last several more months or even years during the
adjudication of DHS’s appeal to the BIA and if unfavorable, Petitioner’s appeal to the
Ninth Circuit. See Banda, 385 F. Supp. 3d at 1119 (finding an appeal to the BIA and
subsequent judicial review “may take up to two years or longer”). As Respondents concede,
the BIA has not yet set a briefing schedule for the appeal even though the appeal was filed
in October 2025. Ret. at 2. Therefore, the Court finds the duration of future detention
weighs in favor of Petitioner.
In considering the conditions of detention, “[t]he more that the conditions under
which the [noncitizen] is being held resemble penal confinement, the stronger his argument
that he is entitled to a bond hearing.” Banda, 385 F. Supp. 3d at 1119 (second alteration
in original) (citation omitted). Petitioner is detained at OMDC, and courts have found
confinement at OMDC is “indistinguishable from penal confinement.” Gao, 2025 WL
2770633, at *4; Kydyrali, 499 F. Supp. 3d at 773. The Court finds this factor weighs in
favor of Petitioner.
The fourth and fifth factors concern delays in the removal proceedings caused by
Petitioner or the Respondents. There does not seem to be any disproportionate delays from
either Petitioner or Respondents. The Court finds no showing that either side has caused
undue delays, so these factors are neutral.
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In considering the “likelihood that the removal proceedings will result in a final order
of removal,” the Court considers “whether the noncitizen has asserted any defenses to
removal.” Banda, 385 F. Supp. at 1120 (citations omitted). “[W]here a noncitizen has
asserted a good faith challenge to removal, ‘the categorical nature of the detention will
become increasingly unreasonable.’” Id. (citing Sajous v. Decker, No. 18-CV-2447 (AJN),
2018 WL 2357266, at *11 (S.D.N.Y. May 23, 2018)). An immigration judge denied
Petitioner’s asylum application and denied withholding of removal to Iran but granted
deferral of removal to Iran under CAT. The Court finds this factor is neutral.
Considering all the factors, the Court finds Petitioner’s mandatory detention under
§ 1225(b) has become unreasonable and that due process requires that he be provided with
a bond hearing.1 See Rodriguez v. Robbins, 715 F.3d 1127, 1144 (9th Cir. 2013) (“[W]e
note that the discretionary parole system available to § 1225(b) detainees is not sufficient
to overcome the constitutional concerns raised by prolonged mandatory detention.”). At
the bond hearing before a neutral immigration judge, Respondents “must justify his
continued detention by a showing of clear and convincing evidence that Petitioner would
likely flee or pose a danger to the community if released.” Gao, 2025 WL 2770633, at *5
(citations omitted); Martinez v. Clark, 124 F.4th 775, 786 (9th Cir. 2024) (noting that due
process requires “the government to prove dangerousness or risk of flight by clear and
convincing evidence” at a bond hearing for noncitizens subject to prolonged detention
(citing Singh v. Holder, 638 F.3d 1196, 1200, 1205 (9th Cir. 2011)))
With all factors weighing in favor of Petitioner, the Court finds due process requires
that he be provided with a bond hearing. Accordingly, the Court GRANTS the Petition.
IV. 	CONCLUSION
1 Although Petitioner requests immediate release from detention, he provides no authority
to show he is entitled to such relief. The Court thus finds the appropriate remedy in this
case is a bond hearing. See Lopez v. Garland, 631 F. Supp. 3d 870, 882 (E.D. Cal. 2022).
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For the reasons above, the Court GRANTS Petitioner’s Petition for Writ of Habeas
Corpus under 28 U.S.C. § 2241. Within seven days of this Order, Respondents are directed
to arrange an individualized bond hearing before a neutral immigration judge in which the
government bears the burden of establishing by clear and convincing evidence that
Petitioner is a danger to the community or a flight risk if released.
IT IS SO ORDERED.
Dated: January 30, 2026
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