Ogeto v. Immigration Customs and Enforcement (ICE) et al

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
MUSTEFA ABDO OGETO,
Petitioner,
v.
CHRISTOPHER J. LAROSE, Senior Warden,
Otay Mesa Detention Center, et al.,
Respondents.
Case No.: 26-cv-388-RSH-MSB
ORDER GRANTING PETITION
FOR WRIT OF HABEAS CORPUS
On January 20, 2026, petitioner Mustefa Abdo Ogeto filed pro se a petition for writ
of habeas corpus pursuant to 28 U.S.C. § 2241 (the “Petition”). ECF No. 1. Petitioner, a
citizen of Ethiopia, is detained by U.S. Customs and Immigration Enforcement (“ICE”) at
the Otay Mesa Detention Center in San Diego, California. See id. at 1; ECF No. 6 at 1.
Respondents have filed a return. ECF No. 6. As set forth below, the Court grants the
Petition.
I. 	BACKGROUND
On December 13, 2024, Petitioner was apprehended by immigration authorities after
entering the United States from Mexico without inspection. ECF No. 6 at 1. Petitioner did
not possess any entry documents, and was taken into custody and initially placed in
expedited removal proceedings. Id. at 1–2. Petitioner was thereafter interviewed by an
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asylum officer, who determined that Petitioner had a credible fear of persecution. Id. at 2.
On January 29, 2025, Petitioner was issued a Notice to Appear, initiating removal
proceedings against him pursuant to 8 U.S.C. § 1229a. Id. In connection with those
proceedings, 	Petitioner 	has 	sought 	relief 	from 	removal, 	including 	asylum. 	Id. 	His
individual merits hearing is scheduled for February 12, 2026. Id.
II. 	LEGAL STANDARD
Title 28 of the U.S. Code, Section 2241, provides that “[w]rits 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). A detainee bears the
burden of demonstrating that “[h]e is in custody in violation of the Constitution or laws or
treaties of the United States[.]” 28 U.S.C. § 2241(c)(3).
III. 	ANALYSIS
Petitioner is currently detained pursuant to 8 U.S.C. § 1225(b)(1)(B)(ii), which
provides that noncitizens found to have a credible fear of persecution are subject to
mandatory detention pending consideration of an asylum application. See 8 U.S.C. §
1225(b)(1)(B)(ii) (“If the officer determines at the time of the interview that an alien has a
credible fear of persecution … the alien shall be detained for further consideration of the
application for asylum.”). The issue presented here is whether, in the circumstances of this
case and at this point in time, applying this mandatory detention regime violates
Petitioner’s due process rights.
A. 	Jurisdiction
Respondents first challenge this Court’s jurisdiction to hear the Petition, relying on
8 U.S.C. § 1252(g). ECF No. 6 at 3–4. That provision states that, except as otherwise
provided in Section 1252, and notwithstanding any other provision of law including
8 U.S.C. § 2241, “no court shall have jurisdiction to hear any cause or claim by or on behalf
of any alien arising from the decision or action by the Attorney General to commence
proceedings, adjudicate cases, or execute removal orders against any alien under this
chapter.” 8 U.S.C. § 1252(g). Respondents argue that because Petitioner challenges his
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detention during removal proceedings, that detention “arises from” the Attorney General’s
decision to commence such proceedings. ECF No. 6 at 3–4.
The Supreme Court has interpreted the jurisdiction-stripping provision in Section
1252(g) provisions narrowly, limiting it to “three discrete actions”: the “‘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) (quoting 8 U.S.C. § 1252(g)).
The Supreme Court noted that “[t]here are of course many other decisions or actions that
may be part of the deportation process.” Id. In a later decision, the Court explained that it
did not interpret Section 1252(g) “to sweep in any claim that can technically be said to
“arise from” the three listed actions of the Attorney General. Instead, [the Court] read the
language to refer to just those three specific actions themselves.” Jennings v. Rodriguez,
583 U.S. 281, 294 (2018).
Here, Petitioner is seeking to review the legality of his detention, arguing that the
length of time he has been detained here is unlawful—rather than challenging the decision
to commence proceedings, the adjudication of his removal case, or an action to execute his
removal order. He does not seek to litigate in this Court questions of whether he is
removable or whether he is entitled to relief from removal. The relief he seeks here is
release from custody or a bond hearing at which his release may be considered by an
immigration judge. The Court concludes that Petitioner’s claim is not barred by Section
1252(g).
B. 	Whether Petitioner Has a Due Process Claim
Respondents argue that under the Supreme Court’s decision in Department of
Homeland Security v. Thuraissigiam, 591 U.S. 103 (2020), Petitioner has no due process
rights beyond those that Congress has provided, and that her due process claim therefore
fails. ECF No. 6 at 6–7. In Thuraissigiam, the Supreme Court rejected a habeas petitioner’s
argument that the due process clause conferred rights to challenge his expedited removal
beyond those established by Congress, stating that “an alien at the threshold of initial entry
cannot claim any greater rights under the Due Process Clause.” 591 U.S. at 107. The
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petitioner in that case had “attempted to enter the country illegally and was apprehended
just 25 yards from the border.” Id. The Supreme Court determined that the “political
department of the government” had plenary authority to admit or exclude aliens seeking
initial entry, and thus “an alien in respondent’s position has only those rights regarding
admission that Congress has provided by statute.” Id. at 139–40.
Following the Supreme Court’s decision in Thuraissigiam, some district courts have
adopted Respondents’ reasoning to dismiss or deny habeas petitions in the context of
arriving aliens subject to mandatory detention under Section 1225(b). See Petgrave v.
Aleman, 529 F. Supp. 3d 665, 679 (S.D. Tex. 2021) (“As far as Petitioner is concerned,
whatever procedure Congress has authorized is sufficient due process.”); Gonzales Garcia
v. Rosen, 513 F. Supp. 3d 329, 536 (W.D.N.Y. 2021) (“Petitioner is on the threshold of
initial entry into the United States and . . . he accordingly is not entitled to procedural
protections beyond those provided by statute.”).
Most courts have ruled otherwise. See Abdul-Samed v. Warden of Golden State
Annex Det. Facility, No. 25-cv-98-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 noncitizens 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.’”) (quoting Martinez v. Clark, No. C18-1669-RAJ-MAT, 2019 WL
5968089, at *6 (W.D. Wash. May 23, 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 violates due process.”). This Court agrees with the majority
position that a person detained under Section 1225(b) may assert a due process challenge
to prolonged mandatory detention without a bond hearing.
This Court likewise agrees with those district courts that interpret Thuraissigiam as
circumscribing an arriving alien’s due process rights to admission, rather than limiting that
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person’s ability to challenge detention. See A.L. v. Oddo, 761 F. Supp. 3d 822, 825 (W.D.
Pa. 2025) (“Nowhere in [Thuraissigiam] did the Supreme Court suggest that arriving aliens
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.”); Hernandez v.
Wofford, No. 25-cv-986-KES-CDB (HC), 2025 WL 2420390, at *3 (E.D. Cal. Aug. 21,
2025) (“Although the Supreme Court has described Congress’s power over the ‘policies
and rules for exclusion of aliens’ as ‘plenary,’ and held that this court must generally ‘defer
to Executive and Legislative Branch decisionmaking in that area,’ it is well-established
that the Due Process Clause stands as a significant constraint on the manner in which the
political branches may exercise their plenary authority’—through detention or otherwise.”)
(citations omitted); Padilla v. ICE, 704 F. Supp. 3d 1163, 1172 (W.D. Wash. 2023) (“The
holding in Thuraissigiam does not foreclose Plaintiffs’ due process claims which seek to
vindicate a right to a bond hearing with certain procedural protections.”).
C. 	Whether Petitioner’s Detention is Prolonged in Violation of Due Process
In determining whether Petitioner’s detention has become prolonged, the Court
applies a six-factor balancing test used by some district courts. See Kydyrali, 499 F. Supp.
3d at 773–74; Banda v. McAleenan, 385 F. Supp. 3d 1099, 1106 (W.D. Wash. 2019). That
test considers: (1) the total length of detention to date; (2) the 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. See Kydyrali,
499 F. Supp. 3d at 773–74.
Here, Petitioner has been detained for approximately 14 months. Respondents argue
that “[i]n general, as detention continues past a year, courts become extremely wary of
permitting continued custody absent a bond hearing.” ECF No. 6 at 7 (quoting Sibomana
v. LaRose, No. 22-cv-933-LL-NLS, 2023 WL 3028093, at *4 (S.D. Cal. Apr. 20, 2023)).
This proposition, applied to Petitioner’s length of detention, favors a bond hearing. The
fact that courts have granted habeas relief in some other cases involving longer periods of
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detention does not indicate that Petitioner is ineligible for such relief; still other courts have
granted habeas relief in cases involving shorter periods of detention.1
Petitioner’s conditions of detention also favor setting a bond hearing. Courts in this
district 	have 	found 	that 	conditions 	at 	the 	Otay 	Mesa 	Detention 	Center 	are
“indistinguishable from penal confinement,” and that this factor weighs in favor of
petitioners’ due process arguments of prolonged detention. Kydyrali, 499 F. Supp. 3d at
773; see Hoyos Amado, 2025 WL 3079052, at *6. The likely duration of future detention
also favors Petitioner here, where his individual merits hearing has not yet taken place. The
Court does not assign responsibility to either party for the length of time taken to reach this
stage of the proceedings; these factors are therefore neutral. Finally, on the record
presented, the Court is not in a position to assess the likelihood that the proceedings will
result in a final order of removal; this factor is also neutral.
On balance, the Court determines that the applicable factors indicate that Petitioner’s
detention without a bond hearing has become unreasonable and violates due process.
Petitioner is entitled to a prompt and individualized bond hearing, at which 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. See Singh v.
Holder, 638 F.3d 1196, 1203 (9th Cir. 2011), abrogated on other grounds by Jennings v.
1 See, e.g., Hoyos Amado v. U.S. Dep’t of Justice, No. 25-cv-2687-LL-DDL, 2025 WL
3079052, at *5 (S.D. Cal. Nov. 4, 2025) (“Courts have found detention over seven months
without a bond hearing weighs toward a finding that it is unreasonable.”) (collecting cases);
Tanoyan v. Andrews, No. 1:25-CV-00815-SKO (HC), 2025 WL 3013684, at *4 (E.D. Cal.
Oct. 28, 2025) (“Petitioner has been detained approximately 11 months. This period …
qualifies as prolonged.”); Gao v. LaRose, No. 25-cv-2084-RSH-SBC, 2025 WL 2770633,
at *5 (S.D. Cal. Sept. 26, 2025) (“The Court finds that Petitioner’s detention for over 10
months without a bond hearing, in the context of the specific circumstances described
above, has become unreasonable and violates due process.”); Lopez v. Garland, 631 F.
Supp. 3d 870, 879 (E.D. Cal. 2022) (“Petitioner has been in immigration detention …
approximately one year. District courts have found shorter lengths of detention … without
a bond hearing to be unreasonable.”) (collecting cases).
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Rodriguez, 583 U.S. 281 (2018) (explaining that “the substantial liberty interest at stake”
warranted placing the burden on the government to “prove by clear and convincing
evidence that an alien is a flight risk or a danger to the community to justify denial of
bond”); see also Martinez v. Clark, 124 F.4th 775, 785–86 (9th Cir. 2024) (stating that “the
BIA properly noted that the government bore the burden to establish by clear and
convincing evidence that Martinez is a danger to the community” with respect to a bond
hearing for a noncitizen detained under § 1226(c)).
IV. 	CONCLUSION
For the foregoing reasons, the Petition is GRANTED. Respondents are directed to
arrange an individualized bond hearing for petitioner Mustefa Abdo Ogeto before an
immigration court within seven (7) days of this order as described above.
IT IS SO ORDERED.
Dated: February 11, 2026
____________________
Hon. Robert S. Huie
United States District Judge
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