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

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
ARTUR ASTAFEV,
Petitioner,
v.
WARDEN, OTAY MESA DETENTION
CENTER, et al,
Respondents.
Case No.: 3:26-cv-00313-RBM-AHG
ORDER GRANTING IN PART
AMENDED PETITION FOR A WRIT
OF HABEAS CORPUS
[Doc. 5]
Pending before the Court is Petitioner Artur Astafev’s (“Petitioner”) Amended
Petition for a Writ of Habeas Corpus (“Amended Petition”). (Doc. 5.) For the reasons set
forth below, the Amended Petition is GRANTED IN PART.
I. 	BACKGROUND
Petitioner, a citizen of Russia and Georgia, entered the United States on September
22, 2022 to seek asylum with his wife and two young children. (Doc. 5 at 2; see Doc. 9-1
at 2, 4.) 	Shortly thereafter, “Petitioner was granted parole, under 8 U.S.C. § 1182(d)(5),
which was only valid for one year.” (Doc. 9 at 2; see Doc. 9-1 at 4.)
Petitioner applied for asylum on November 3, 2022. (Doc. 9-1 at 4.) On September
20, 2023, the United States Department of Homeland Security (“DHS”) issued Petitioner
a Notice to Appear (“NTA”), commencing removal proceedings against Petitioner and
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charging him as inadmissible under 8 U.S.C. § 1182 (a)(6)(A)(i) and 8 U.S.C. § 1182
(a)(7)(A)(i)(I). (Doc. 9 at 2.) Petitioner applied for work authorization on March 28, 2025,
which was valid until September 12, 2025. (Doc. 9-1 at 4.)
On January 9, 2026, United States Immigration and Customs Enforcement (“ICE”)
detained Petitioner at Camp Pendleton while he was working as a driver for a rideshare
company. (Id. at 2–3.) “At the time they took him into custody, ICE officials did not tell
[Petitioner] why they were arresting him, nor did they give him an informal interview or
the opportunity to contest his detention. (Doc. 5 at 3.)
On January 20, 2026, Petitioner, through his wife Anastasiia Astafev, commenced
this action by filing an Emergency Petition for Writ of Habeas Corpus (“Petition”) pursuant
to 28 U.S.C. § 2241 (Doc. 1) and a Request for Appointment of Counsel under the Civil
Rights Act of 1964, 42 U.S.C. § 2000e 5(f)(1) (“Motion to Appoint Counsel”) (Doc. 2).
The Court issued an Order to Show Cause setting a briefing schedule and conditionally
appointing Federal Defenders of San Diego, Inc. as counsel. 	(Doc. 4.) 	On February 2,
2026, Petitioner, through counsel, filed the Amended Petition (Doc. 5) and the Court set a
revised briefing schedule (Doc. 4). 	Respondents filed a Return to Habeas Petition
(“Response”) on February 13, 2026. 	(Doc. 9.) 	Petitioner filed a Traverse in Support of
Petition for Writ of Habeas Corpus (“Reply”) on February 17, 2026. (Doc. 10.)
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). “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).
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III. 	DISCUSSION
Petitioner claims that his detention violates the Administrative Procedure Act
(“APA”) and the Fifth Amendment’s Due Process Clause. (Doc. 5 at 3–7.) Respondents
argue that: (1) this Court lacks jurisdiction over Petitioner’s claims under 8 U.S.C.
§ 1252(g) and § 1252(b)(9); and (2) “Petitioner’s claims for alleged statutory and
constitutional violations fail because” he is lawfully detained under the mandatory
detention provisions of 8 U.S.C. § 1225(b)(2). (Doc. 9 at 3–6.) 1
A. 	Jurisdiction
As 	a 	preliminary 	matter, 	courts 	in 	this 	District 	have 	consistently 	rejected
Respondents’ argument that similarly situated petitioners’ claims are jurisdictionally
barred under 8 U.S.C. § 1252(g) and § 1252(b)(9). 	See Noori v. LaRose, — F. Supp. 3d
—, 2025 WL 2800149, at *7 (S.D. Cal. Oct. 1, 2025) (maintaining jurisdiction to review
lawfulness of parole revocation).
In this case, Petitioner does not challenge the decision to commence removal
proceedings or any act to execute a removal order. 	Instead, Petitioner challenges the
lawfulness of the revocation of his parole and “argue[s] that the revocation of his parole
and his detention violated both the regulations and due process.” 	(Doc. 10 at 2.) 	He
therefore seeks to enforce his “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, 803 F. Supp. 3d 1064, 1074(S.D. Cal. Sept. 3, 2025) (emphasis
in original); see Araujo v. LaRose, No. 25cv2942-BTM-MMP, 2025 WL 3278016, at *1
(S.D. Cal. Nov. 24, 2025) (“There will be jurisdiction if DHS failed to follow the law when
revoking parole.”). Accordingly, § 1252(g) does not strip the Court of jurisdiction.
1 	Respondents alternatively argue that “the Court should ensure Petitioner properly
exhausts administrative remedies.” 	(Doc. 9 at 4.) 	However, a request to exhaust
administrative remedies would be futile because Petitioner is not entitled to a bond hearing
under 8 U.S.C. § 1225(b). See Omer G.G. v. Kaiser,— F. Supp. 3d—, 2025 WL 3254999,
at *4 n.7 (E.D. Cal. Nov. 22, 2025).
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Section 1252(b)(9) also does not present a jurisdictional bar to the Amended
Petition. 	This provision was “intended to ‘channel judicial review over final orders of
removal to the courts of appeals,’ not ‘foreclose all judicial review of agency actions’
touching on deportation proceedings writ large.” 	Salvador v. Bondi, Case No. 2:25-cv-
07946-MRA-MAA, 2025 WL 2995055, at *4 (C.D. Cal. Sept. 2, 2025) (emphasis in
original) (quoting J.E.F.M. v. Lynch, 837 F.3d 1026, 1031 (9th Cir. 2016)). 	“Adopting
Respondent’s application of § 1252(b)(9) would permit an excessive detention to take
place by the time a final order of removal was eventually entered.” 	Noori, 2025 WL
2800149, at *7. In rejecting such an expansive interpretation of § 1252(b)(9), the Supreme
Court has explained that:
Interpreting ‘arising from’ in this extreme way would . . . make claims of
[unlawful] detention effectively unreviewable. 	By the time a final order of
removal was eventually entered, the allegedly [unlawful] detention would
have already taken place. 	And of course, it is possible that no such order
would ever be entered in a particular case, depriving that detainee of any
meaningful chance for judicial review.
Jennings v. Rodriguez, 583 U.S. 281, 293 (2018).
This logic applies equally here. As previously noted, Petitioner is not challenging
the Government’s decision to detain him in the first place—he challenges the legality of
the revocation of his humanitarian parole in violation of mandatory procedures and without
due process. 	Accordingly, the Court has jurisdiction to review the lawfulness of
Respondents’ revocation of Petitioner’s parole. See Noori, 2025 WL 2800149, at *5–7.
B. 	Due Process
Respondents argue that Petitioner is lawfully subject to mandatory detention because
“his parole was terminated, and in any event, expired on September 21, 2023.” (Doc. 9 at
5–6.) 	Petitioner does not dispute that his detention is governed by § 1225. 	Rather,
Petitioner contends that his re-detention, even after his parole expired, without “proper
notice, reasoning, and a pre-deprivation hearing” violated the Fifth Amendment’s Due
Process Clause. (Doc. 5 at 6–7 (quoting Salazar v. Casey, No. 25-cv-2784 JLS-VET, 2025
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WL 3063629 (S.D. Cal. Nov. 3, 2025)); Doc. 10 at 2–4.)
1. 	Entitlement to Due Process Rights
The Fifth Amendment’s Due Process Clause 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)). 	Indeed, “the Due Process Clause applies to all
‘persons’ within the United States, including [noncitizens], whether their presence here is
lawful, unlawful, temporary, or permanent.” Zadvydas v. Davis, 533 U.S. 678, 693 (2001).
“Even individuals who face significant constraints on their liberty or over whose liberty
the government wields significant discretion retain a protected interest in their liberty.”
Pinchi v. Noem, 792 F. Supp. 3d 1025, 1032, (N.D. Cal. 2025). 	Although the initial
decision to detain or release an individual may be within the government’s discretion, “the
government’s decision to release an individual from custody creates ‘an implicit promise,’
upon which that individual may rely, that their liberty ‘will be revoked only if [they] fail[ ]
to live up to the . . . conditions of release.’” 	Id. (quoting Morrissey v. Brewer, 408 U.S.
471, 482 (1972)).
While Respondents note Petitioner was granted parole for only one year (see Doc.
9-1 at 4), “numerous courts in the Ninth Circuit have found that when a noncitizen is
paroled under that section, his ‘liberty interest [does] not expire along with his parole.’”
D.L.C. v. Wofford, No. 1:25-cv-01996-DC-JDP (HC), 2026 WL 145646, at *4 (E.D. Cal.
Jan. 20, 2026) (quoting Omer G.G., 2025 WL 3254999, at *5) (citing cases). 	“When he
was released from his initial detention on parole, Petitioner took with him a liberty interest
which is entitled to the full protections of the due process clause.” 	Ramirez Tesara v.
Wamsley, 800 F. Supp. 3d 1130, 1136 (W.D. Wash. 2025).
Here, Petitioner is not an “arriving” noncitizen but one that has been present in the
United States for over two years. “This substantial amount of time indicates he is afforded
the Fifth Amendment’s guaranteed due process before removal.” 	Noori, 2025 WL
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2800149, at *10 (citing Yamataya v. Fisher, 189 U.S. 86, 87, 99–100 (1903) (“[T]he
deportation of [a noncitizen present in the United States for four days] without provision
for such a notice and for an opportunity to be heard was inconsistent with the due process
of law required by the 5th Amendment of the Constitution.”)). As Petitioner “has passed
through our gates,” he “may be expelled only after proceedings conforming to traditional
standards of fairness encompassed in due process of law.” 	Shaughnessy v. United States
ex rel. Mezei, 345 U.S. 206, 212 (1953).
Moreover, Petitioner is not subject to an order of removal and “was detained before
he was scheduled to appear” at individual hearing for his immigration case. D.L.C., 2026
WL 145646, at *4 (emphasis in original); see Omer G.G., 2025 WL 3254999, at *6 (noting
“[t]his conclusion is bolstered by the fact that the applicable regulations provide that if a
non-citizen is re-detained after parole expires, they ‘shall again be released on parole’ if
their ‘exclusion, deportation, or removal order cannot be executed within a reasonable time
. . . .’”) (quoting 8 C.F.R. § 212.5(e)(1), (e)(2)(i)). Petitioner applied for asylum relief and
has no criminal history. 	Respondents also granted Petitioner work authorization over a
year and a half after the expiration of his parole. (See Doc. 9-1 at 4.) Respondents therefore
implicitly promised Petitioner’s continued release, and Petitioner reasonably relied on that
implicit promise. Accordingly, Petitioner has a protected liberty interest in his release.
2. 	Adherence to Due Process
To determine the procedural protections required to satisfy the Due Process Clause,
the Court applies the three-part test established in Mathews v. Eldridge, 424 U.S. 319
(1976). 	The Court must consider: (1) “the private interest that will be affected by the
official action;” (2) the “risk of an erroneous deprivation of such interest through the
procedures used, and the probable value, if any, of additional or substitute procedural
safeguards;” and (3) “the Government’s interest including the function involved and the
fiscal and administrative burdens that the additional or substitute procedural requirement
would entail.” Id. at 335.
First, Petitioner has a significant liberty interest in remaining out of custody pursuant
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to 	his 	humanitarian 	parole. 	See 	Zadvydas, 	533 	U.S. 	at 	690 	(“Freedom 	from
imprisonment—from government custody, detention, or other forms of physical restraint—
lies at the heart of the liberty [the Due Process Clause] protects.”); Morrissey, 408 U.S. at
482 (“Subject to the conditions of his parole, he can be gainfully employed and is free to
be with family and friends and to form the other enduring attachments of normal life.”);
Pinchi, 792 F. Supp. 3d at 1034 (“[The petitioner’s] release from ICE custody after her
initial apprehension reflected a determination by the government that she was neither a
flight risk nor a danger to the community, and [the petitioner] has a strong interest in
remaining at liberty unless she no longer meets those criteria.”). Petitioner was therefore
“entitled to both notification of revocation and the reasoning for revocation, if not also an
opportunity to be heard and contest the determination.” Noori, 2025 WL 2800149, at *11;
see Araujo, 2025 WL 3278016, at *2 (“Due process for parole terminations requires (1) a
decision by an appropriate official on whether the purpose of parole has been served; (2)
written notice of the reasons for the termination; and (3) an opportunity to rebut the reasons
given for the termination.”).
“Second, the risk of an erroneous deprivation of such interest is high as Petitioner’s
parole was revoked without providing [him] a reason for revocation or giving [him] an
opportunity to be heard.” Gonzalez Salazar v. Casey, Case No.: 25-CV-2784 JLS (VET),
2025 WL 3063629, at *4 (S.D. Cal. Nov. 3, 2025). 	Civil immigration detention is
permissible only to prevent flight or protect against danger to the community. 	Zadvydas,
533 U.S. at 690. Here, there is no evidence that Petitioner’s detention would serve either
purpose. “Since DHS’s initial determination that Petitioner should be paroled because [he]
posed no danger to the community and was not a flight risk, there is no evidence that these
findings have changed.” 	Gonazlez Salzar, 2025 WL 3063629, at *4 (citing Saravia v.
Sessions, 280 F. Supp. 3d 1168, 1176 (N.D. Cal. 2017) (“Release reflects a determination
by the government that the noncitizen is not a danger to the community or a flight risk.”).
Respondents argue the NTA, issued to Petitioner on September 20, 2023, terminated
Petitioner’s parole. 	(Doc. 9 at 5.) 	However, Respondents have not submitted evidence
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showing the Secretary of Homeland Security found that the purposes of Petitioner’s parole
have been served, as required under 8 U.S.C. § 1182(d)(5)(A). 	See Y-Z-L-H v. Bostock,
792 F. Supp. 3d 1123, 1138 (D. Or. 2025) (explaining § 1182(d)(5)(A) “has a mandatory
requirement—parole may be terminated or revoked only when in the Secretary’s opinion
the parole’s purposes have been met”). 	Respondents also argue that no notice was required
because Petitioner’s parole was valid for only one year and automatically expired on
September 21, 2023. 	(Doc. 9 at 5.) 	The relevant regulations provide for the automatic
termination of parole “without written notice (i) upon the [noncitizen’s] departure from the
United States . . . , or, (ii) if not departed, at the expiration of the time for which parole was
authorized . . .” 8 C.F.R § 212.5(e)(1)(i)–(ii). Although notice may not have been required
under the regulations, this Court follows other courts in this District and “disagrees with
Respondent[s] that an expiration of parole automatically extinguishes any due process
claim.” Osaretin v. Warden, Otay Mesa Det. Ctr., Case No.: 25-cv-3612-JES-MSB, 2026
WL 280077, at *2 (S.D. Cal. Feb. 3, 2026).2 “That the express terms of the [§ 1182] parole
notice allowed for discretionary termination or expiration does not somehow obviate the
need for the Government to provide [an] individualized hearing prior to re-detaining the
parolee.” Ramirez Tesara, 800 F. Supp. 3d at1136 . Indeed, “as there were no procedural
safeguards to determine if [P]etitioner’s re-detention was justified, ‘the probable value of
additional procedural safeguards . . . is high.’” 	Omer G.G., 2025 WL 3254999, at *7
(quoting A.E. v. Andrews, Case No. 1:25-cv-00107-KES-SKO (HC), 2025 WL 1424382,
at *5 (E.D. Cal. May 16, 2025)).
Third, Respondents’ interest in detaining Petitioner without reasoning or a hearing
is low. 	See Pinchi, 792 F. Supp. 3d at 1036 (“Detention for its own sake, to meet an
administrative quota, or because the government has not yet established constitutionally
required pre-detention procedures is not a legitimate government interest.”); Ortega v.
2 For these reasons, however, the Court DENIES Count One for violations of the relevant
regulations and the APA.
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Bonnar, 415 F. Supp. 3d 963, 970 (N.D. Cal. 2019) (“If the government wishes to re-arrest
[the petitioner] at any point, it has the power to take steps toward doing so; but its interest
in doing so without a hearing is low.”). 	“Therefore, because Respondents detained
Petitioner by revoking [his] parole in violation of the Due Process Clause, [his] detention
is unlawful.” 	Gonzalez Salazar, 2025 WL 3063629, at *5; accord Noori, 2025 WL
2800149, at *11 (granting habeas petition upon finding that summary revocation of the
petitioner’s parole violated his due process rights).
IV. 	CONCLUSION
Based on the foregoing reasons, the Amended Petition (Doc. 5) is GRANTED IN
PART. Specifically, the Court DENIES Count One and GRANTS Count Two.
1. Accordingly, Respondents are ORDERED to immediately release Petitioner
from custody, subject to the conditions of his preexisting parole.
2. The Court ORDERS, prior to any re-detention of Petitioner, that Petitioner is
entitled to notice of the reasons for revocation of his parole and a hearing before
an immigration judge to determine whether detention is warranted. Respondents
shall bear the burden of establishing, by clear and convincing evidence, that
Petitioner poses a danger to the community or a risk of flight.
IT IS SO ORDERED.
DATE: March 6, 2026
____________________________________
HON. RUTH BERMUDEZ MONTENEGRO
UNITED STATES DISTRICT JUDGE
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