Malyshko et al v. Warden, Otay Mesa Detention Center et al

1
3:26-cv-00069-RBM-SBC
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
IGOR MALYSHKO; IRINA
POTEMINA,
Petitioners,
v.
WARDEN, OTAY MESA DETENTION
CENTER, et al.,
Respondents.
Case No.: 3:26-cv-00069-RBM-SBC
ORDER GRANTING PETITION
FOR WRIT OF HABEAS CORPUS
UNDER 28 U.S.C. § 2241
[Doc. 1]
Pending before the Court is Petitioners Igor Malyshko (“Petitioner Malyshko”) and
Irina Potemina’s (“Petitioner Potemina”) (collectively, “Petitioners”) Petition for Writ of
Habeas Corpus Under 28 U.S.C. § 2241 (“Petition”). (Doc. 1.) Petitioners claim they have
been detained by United States Immigration and Customs Enforcement (“ICE”) for over a
year in violation of the Fifth Amendment’s Due Process Clause. (Id. at 6.) 1 For the reasons
set forth below, the Petition (Doc. 1) is GRANTED.
1 The Court cites the CM/ECF electronic pagination unless otherwise noted.
Case 3:26-cv-00069-RBM-SBC Document 7 Filed 01/30/26 PageID.<pageID> Page
1 of 10

2
3:26-cv-00069-RBM-SBC
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
I. 	BACKGROUND
A. 	Factual Background
Petitioners “were born in the former U.S.S.R.” 	(Doc. 6 at 2 (citing Doc. 6-1,
Declaration of Igor Malyshko [“Malyshko Decl.”] ¶ 1).) Petitioner Malyshko was born in
present day Ukraine and Petitioner Potemina was born in present day Russia. (Id. (citing
Malyshko Decl. ¶ 1).) 	On December 11, 2024, Petitioner entered the United States with
their two minor children through the Otay Mesa port of entry and requested asylum. (Doc.
1-2 at 1; Malyshko Decl. ¶ 3.) That same day, Petitioners were placed in expedited removal
proceedings pending a credible fear interview “due to National Security Concerns.” (Doc.
1-4 at 1.) Based on information and recommendations from the National Targeting Center
(“NTC”), Petitioners were not released or paroled because “national security derogatory
information was found on” them. 	(Id.) 	They were then transferred to the Otay Mesa
Detention Center. (Doc. 1-2 at 1.) Petitioners were separated from their children who were
taken into custody and later placed in foster care. (Id.; Malyshko Decl. ¶ 4.)
Petitioners were each provided with a credible fear interview conducted b an asylum
officer. (Doc. 5 at 2 (citing Doc. 5-1, Declaration of Daniel Negrin [“Negrin Decl.”] ¶¶ 9,
14).) Petitioner Malyshko was interviewed on January 23, 2025, and “received a negative
credible fear finding, but the finding was vacated on review by the immigration judge” on
January 30, 2025. 	(Id. (citing Negrin Decl. ¶¶ 9–12).) 	On February 4, 2025, Petitioner
Malyshko was issued a Notice to Appear which placed him in removal proceedings under
8 U.S.C. § 1229a. (Id., Negrin Decl. ¶ 13.)
Petitioner Potemina was interviewed on January 8, 2025, and “also received a
negative credible fear finding, which was then affirmed by an immigration judge.” 	(Id.
(citing Negrin Decl. ¶¶ 14, 17).) The immigration judge then returned the case to DHS for
Petitioner Potemina’s removal to Russia. (Negrin Decl. ¶ 17.) Her removal was scheduled
to take place on April 27, 2025. 	(Id. ¶ 18.) 	On May 29, 2025, Petitioner Potemina was
issued a discretionary Notice to Appear (Doc. 5-2 at 7–8) which placed her into removal
proceedings under 8 U.S.C. § 1229a “so that her case could be joined with [Petitioner]
Case 3:26-cv-00069-RBM-SBC Document 7 Filed 01/30/26 PageID.<pageID> Page
2 of 10

3
3:26-cv-00069-RBM-SBC
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
Malyshko’s case.” 	(Negrin Decl. ¶¶ 19–20.) 	On June 3, 2025, an immigration judge
determined he lacked jurisdiction to issue a bond because Petitioner Potemina was an
“arriving alien and . . . subject to expedited removal proceedings.” (Id. ¶ 21.) Petitioners’
immigration cases were consolidated on July 10, 2025. (Id. ¶ 22.)
On January 9, 2026, an immigration judge determined Petitioners were removable,
denied their claims for asylum, withholding of removal, and deferral of removal, and
ordered them removed to Russia. (Id. ¶ 23; Doc. 5-2 at 12–15.) Petitioners subsequently
filed an appeal with the Board of Immigration Appeals (“BIA”) which is still pending.
(Doc. 6 at 2; Malyshko Decl. ¶ 8.)
Over a year after their initial apprehension, Petitioners remain detained at the Otay
Mesa Detention Center and their daughters are still in foster care. (Doc. 6 at 2.) Petitioners
allege that five different judges presided over their case for a variety of reasons which
caused a delay in the adjudication of their immigration case. 	(Malyshko Decl. ¶ 5.)
Petitioners assert that their prolonged separation from their children has caused them severe
emotional distress and led to one of their daughters being diagnosed with Major Depressive
Disorder and Post-Traumatic Stress Disorder. (Doc. 1-2 at 1; Doc. 1-5 at 1.)
B. 	Procedural Background
On January 2, 2026, Petitioners filed the instant Petition. (Doc. 1.) On January 12,
2026, the Court issued an Order to Show Cause, set a briefing schedule, and conditionally
appointed the Federal Defenders of San Diego, Inc. (“Federal Defenders”) to represent
Petitioners. 	(Doc. 2 at 1–2.) 	Respondents filed a Return to Petition for Writ Of Habeas
Corpus (“Response”) on January 16, 2026 (Doc. 5), and Petitioners filed a Traverse in
Support of Writ of Habeas Corpus (“Reply”) on January 19, 2026 (Doc. 6).
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
Case 3:26-cv-00069-RBM-SBC Document 7 Filed 01/30/26 PageID.<pageID> Page
3 of 10

4
3:26-cv-00069-RBM-SBC
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
custody.” 	Preiser v. Rodriguez, 411 U.S. 475, 484 (1973). “Writs of habeas corpus may
be granted by the Supreme Court, any justice thereof, the district courts and any circuit
judge within their respective jurisdictions.” 28 U.S.C. § 2241(a). The petitioner bears the
burden of demonstrating that “[h]e is in custody in violation of the Constitution or laws or
treaties of the United States.” Id. § 2241(c)(3).
III. 	DISCUSSION
Respondents argue that Petitioners are subject to mandatory detention under
§ 1225(b) until their proceedings have concluded because their removal proceedings are
pending and they have not been granted parole. (Doc. 5 at 6.) Petitioners do not dispute
that they are detained under 8 U.S.C. § 1225(b). (Doc. 6 at 3.) Instead, Petitioners argue
that prolonged mandatory detention pending removal proceedings without a bond hearing
implicates due process concerns. (Id. at 3–11.) The Court agrees.
A. 	Jurisdiction
As a preliminary matter, Respondents argue the Court lacks jurisdiction to hear the
Petition under 8 U.S.C. § 1252(g). 	(Doc. 5 at 3–4.) 	The Court has consistently rejected
this argument, see Constantinovici v. Bondi, — F. Supp. 3d —, 2025 WL 2898985, at *3
(S.D. Cal. Oct. 10, 2025), and does so again in this case for the same reasons.
Petitioners 	“challenge 	only 	violations 	of 	ICE’s 	mandatory 	duties 	under 	the
Constitution.” 	(Doc. 6 at 12.) 	Petitioners are therefore enforcing their “constitutional
rights to due process in the context of the removal proceedings—not the legitimacy of the
removal proceedings or any removal order.” Garcia v. Noem, — F. Supp. 3d —, 2025 WL
2549431, at *4 (S.D. Cal. Sept. 3, 2025) (emphasis in original).
B. 	Due Process
Respondents contend that Petitioners’ continued detention is not unconstitutionally
prolonged and does not violate due process because they are detained pursuant to § 1225(b)
and “have no due process rights ‘other than those afforded by statute.’” 	(Doc. 5 at 7–10
(quoting Dep’t of Homeland Sec. v. Thuraissigiam, 591 U.S. 103, 107 (2020)).) Petitioners
concede they are subject to mandatory detention under § 1225 but argue that their detention
Case 3:26-cv-00069-RBM-SBC Document 7 Filed 01/30/26 PageID.<pageID> Page
4 of 10

5
3:26-cv-00069-RBM-SBC
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
for over a year without a bond hearing has been indefinitely prolonged in violation of the
Fifth Amendment’s Due Process Clause. (Doc. 6 at 4–11.)
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 aliens 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. In Jennings v. Rodriguez, the Supreme Court noted that “nothing
in the statutory text [of § 1225(b)] imposes any limit on the length of detention” or “says
anything whatsoever about bond hearings.” 	583 U.S. 281, 297 (2018). 	In doing so, the
Supreme Court addressed an issue of statutory interpretation and expressly avoided
constitutional questions. 	Id. 	Since the Supreme Court’s decision in Jennings, the Ninth
Circuit has questioned the constitutionality of certain immigration detention statutes,
including § 1225(b):
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).
Respondents rely on Thuraissigiam, where the Supreme Court rejected a habeas
petitioner’s argument that he could bring a due process challenge to his order of expedited
removal. 591 U.S. at 107. The Supreme Court held that a noncitizen “at the threshold of
initial entry cannot claim any greater rights under the Due Process Clause.” Id. “Following
the Supreme Court’s decision in 	Thuraissigiam, some district courts have adopted
Case 3:26-cv-00069-RBM-SBC Document 7 Filed 01/30/26 PageID.<pageID> Page
5 of 10

6
3:26-cv-00069-RBM-SBC
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
Respondents’ reasoning to dismiss or deny habeas petitions in the context of arriving
[noncitizens] subject to mandatory detention under Section 1225(b)(1).” 	Gao v. LaRose,
— F. Supp. 3d —, 2025 WL 2770633, at *3 (S.D. Cal. Sept. 26, 2025) (citing cases).
However, “[m]ost courts have ruled otherwise.” 	Gao, 2025 WL 2770633, at *3
(citing cases); see, e.g., Abdul-Samed v. Warden of Golden State Annex Det. Facility, Case
No. 1:25-cv-00098-SAB-HC, 2025 WL 2099343, at *6 (E.D. Cal. July 25, 2025)
(“Although the Ninth Circuit has yet to take a position on whether due process requires a
bond hearing for citizens detained under 8 U.S.C. § 1225(b), . . . essentially 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.”); A.L. v. Oddo, 761 F. Supp. 3d 822, 825 (W.D. Pa. 2025) (“Nowhere in
[Thuraissigiam] did the Supreme Court suggest that arriving [noncitizens] being held under
§ 1225(b) may be held indefinitely and unreasonably with no due process implications, nor
that such aliens have no due process rights whatsoever.”).
The Court thus “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 violates due process.” Kydyrali v. Wolf, 499 F. Supp. 3d 768, 772 (S.D. Cal.
2020). “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.” Gao, 2025 WL 2770633, at *3.
C. 	Prolonged Detention
The Parties offer different frameworks for analyzing a due process challenge to
prolonged detention. (See Doc. 5 at 9 (citing Lopez v. Garland, 631 F. Supp. 3d 870, 879
(E.D. Cal. 2022)); Doc. 6 at 8–11 (citing Sanchez-Rivera v. Matuszewski, Case No.: 22-cv-
1357-MMA (JLB), 2023 WL 139801, at *5–6 (S.D. Cal. Jan. 9, 2023)).) 2 The Court adopts
2 The Court notes that the Lopez court analyzed applied the outlined factors in the § 1226
context. 	See Lopez, 631 F. Supp. 3d at 879. The factors set forth above share significant
Case 3:26-cv-00069-RBM-SBC Document 7 Filed 01/30/26 PageID.<pageID> Page
6 of 10

7
3:26-cv-00069-RBM-SBC
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
the multi-factor test that many other courts have relied upon to determine whether §
1225(b) detention has become unreasonable. See Kydyrali, 499 F. Supp. 3d at 773. Under
this test, the Court considers:
(1) total length of detention to date; (2) likely duration of future detention; (3)
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.
Kydyrali, 499 F. Supp. 3d at 773 (citing Banda v. McAleenan, 385 F. Supp. 3d 1099, 1106
(W.D. Wash. 2019)).
The Court first considers the length of detention, which is the most important factor.
See Banda, 385 F. Supp. 3d at 1106. 	Petitioners have been detained for more than 13
months. 	See Abdul Kadir v. Larose, 2025 WL 2932654, at *5 (S.D. Cal. Oct. 15, 2025)
(collecting cases and finding that a nearly 13-month detention weighed in favor of the
petitioner); see also Sibomana v. LaRose, Case No.: 3:22-cv-933-LL-NLS, 2023 WL
3028093, at *4 (S.D. Cal. Apr. 20, 2023) (“In general, as detention continues past a year,
courts become extremely wary of permitting continued custody absent a bond hearing.”)
(citation omitted). This factor therefore weighs in favor of Petitioners.
The second factor, the likely duration of future detention, also weighs in favor of
Petitioners. Petitioners argue they “have reason to anticipate significant future detention”
because “[a] BIA appeal itself can take months, and afterward, a petitioner may appeal to
the Ninth Circuit.” (Doc. 6 at 10.) Given Petitioners’ appeal pending before the BIA, “the
undetermined, but likely significant, period of mandatory detention through the appeals
process” weighs in favor of Petitioner. Gao, 2025 WL 2770633, at *4; accord Abdul Kadir,
2025 WL 2932654, at *5; Masood v. Barr, Case No. 19-cv-07623-JD, 2020 WL 96533, at
*3 (N.D. Cal. Jan. 8, 2020) (“The BIA appeal [is a] perfectly legitimate proceeding[] he is
legally entitled to pursue,” and Respondents “cannot predict with any degree of confidence
overlap with the Lopez factors, and the Parties have adequately briefed them.
Case 3:26-cv-00069-RBM-SBC Document 7 Filed 01/30/26 PageID.<pageID> Page
7 of 10

8
3:26-cv-00069-RBM-SBC
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
when the BIA appeal will be resolved,” which “could lead to further proceedings that might
take up many more months, or even years.”).
As to the third factor, “[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 (citation omitted). Petitioners are detained
at the Otay Mesa Detention Center, which several courts have found is “indistinguishable
from penal confinement.” Kydyrali, 499 F. Supp. 3d at 773 (citation omitted); see Abdul,
2025 WL 2932654, at *5. They “have to wear uniforms, . . . can’t choose what to eat, . . .
can be subject to discipline if we don’t follow the rules, . . . [and] are kept behind razor
wire.” (Malyshko Decl. ¶ 9.) Petitioners also note that “[t]hose conditions are much more
damaging for Petitioners, because it has resulted in family separation and extreme hardship
to their children.” (Doc. 6 at 11.) This factor also weighs in Petitioners’ favor.
The fourth and fifth factors concern delays in the removal proceedings caused by
Petitioners or the Government. Although Petitioners chose “to appeal the denial of asylum,
as is [their] right, there is no indication that [they are] responsible for undue delay in the
proceedings.” See Gao, 2025 WL 2770633, at *3; Kydyrali, 499 F. Supp. 3d at 773 (finding
the fourth factor “weighs in favor of [the petitioner] because the record does not indicate
that he has been dilatory in pursuing his rights.”).
As to the fifth factor, the Court notes that Petitioners’ cases were pending for thirteen
months before they received an individualized merits hearing. (See Doc. 5 at 1–2; Negrin
Decl. ¶¶ 7–8, 23.) 	Petitioners contend their cases were delayed beyond their control
because it took six months to consolidate their proceedings and five different “immigration
judges assigned to their case [who] kept leaving their role or going on vacation.” (Doc. 6
at 2, 10; see Doc. 1-2 at 1; Malyshko Decl. ¶¶ 5–6.) Indeed, the delay during the first six
months was seemingly due to the consolidation of their cases. Petitioners were first subject
to expedited removal proceedings and later placed in removal proceedings under so their
cases could be consolidated. 	On February 4, 2025, Petitioner Malyshko was placed into
removal proceedings pursuant to 8 U.S.C. § 1229a after his negative credible fear finding
Case 3:26-cv-00069-RBM-SBC Document 7 Filed 01/30/26 PageID.<pageID> Page
8 of 10

9
3:26-cv-00069-RBM-SBC
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
was reviewed and vacated by an immigration judge. (Negrin Decl. ¶¶ 10–13.) Petitioner
Potemina’s negative credible fear finding was affirmed by an immigration judge and she
was scheduled for removal on April 27, 2025. (Id. ¶¶ 17–18.) On April 27, 2025, Petitioner
Potemina was issued a “discretionary NTA so her case could be joined with [Petitioner]
Malyshko’s case.” 	(Id. ¶ 19; Doc. 5 at 2.) 	Consequently, she was placed into removal
proceedings pursuant to § 1229a on May 29, 2025. (Negrin Decl. ¶ 20.) On July 10, 2025,
their cases were consolidated. (Id. ¶ 22.) After they were placed in removal proceedings
under § 1229a, Petitioners then had “the opportunity to apply for relief from removal before
an immigration judge . . ., including asylum.” (Doc. 5 at 2.) However, the delay caused
by immigration judge assignments “is attributable to the Government, not [Petitioners].”
See Banda, 385 F. Supp. 3d at 1120. This factor therefore weighs in favor of Petitioners.
Lastly, the Court considers the likelihood that the removal proceedings will result in
a final order of removal. Petitioners’ applications for asylum, withholding of removal, and
CAT relief were all previously denied. 	(Doc. 5-2 at 12.) 	This makes it more likely that
the removal proceedings will result in a final order of removal. Cf. Abdul Kadir, 2025 WL
2932654, at *5 (finding the petitioner’s grant of asylum was a strong indication that he
would not receive a final order of removal). The sixth factor weighs against Petitioners.
Five of the six factors, including the most important one, weigh in Petitioners’ favor.
The Court therefore finds that Petitioners’ detention under § 1225(b) has become
unreasonably prolonged and that due process requires they be provided with a bond
hearing. Accordingly, the Court GRANTS the Petition and declines to reach the remaining
claims raised in the Petition.
IV. 	CONCLUSION
For the foregoing reasons, the Petition is GRANTED. 	Accordingly, Respondents
are ORDERED to arrange an individualized bond hearing for Petitioners before an
immigration judge within fourteen (14) days of entry of this Order to determine whether
their continued detention is warranted. Respondents shall bear the burden of establishing,
by clear and convincing evidence, that Petitioners pose a danger to the community or a risk
Case 3:26-cv-00069-RBM-SBC Document 7 Filed 01/30/26 PageID.<pageID> Page
9 of 10

10
3:26-cv-00069-RBM-SBC
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
of flight.3 If no hearing occurs within fourteen days of entry of this Order, Petitioners shall
be released from Respondents’ custody.
IT IS SO ORDERED.
DATE: January 30, 2026
____________________________________
HON. RUTH BERMUDEZ MONTENEGRO
UNITED STATES DISTRICT JUDGE
3 This relief has been granted in similar matters. 	See Doe v. Becerra, 787 F. Supp. 3d
1083, 1089 (E.D. Cal. 2025); 	Gao, 2025 WL 2770633, at *5; 	Abdul Kadir, 2025
WL 2932654, at *6.
Case 3:26-cv-00069-RBM-SBC Document 7 Filed 01/30/26 PageID.<pageID> Page
10 of 10