Lu v. Divver et al

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26-cv-781-JES-DEB
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
ZHENWEI LU,
Petitioner,
v.
PATRICK DIVVER; KRISTI NOEM;
DEPARTMENT OF HOMELAND
SECURITY; PAMELA BONDI;
EXECUTIVE OFFICE OF
IMMIGRATION REVIEW: and
WARDEN OF OTAY MESA
DETENTION CENTER,
Respondents.
Case No.: 26-cv-781-JES-DEB
ORDER GRANTING PETITION
FOR WRIT OF HABEAS CORPUS
[ECF No. 1]
Before the Court is Petitioner Zhenwei Lu’s (“Petitioner”) Petition for Writ of
Habeas Corpus pursuant to 28 U.S.C. § 2241. ECF No. 1. Petitioner is a native of China
who has been detained at the Otay Mesa Detention Center since February 4, 2025. Id.
Petitioner alleges that he should not be considered mandatorily detained under 8 U.S.C. §
1225, and rather should be detained under § 1226 instead. Id.
Pursuant to the Court’s OSC order, Respondents filed a response. ECF No. 3. In the
response, Respondents acknowledged that Petitioner must be considered detained under 8
U.S.C. § 1226(a), pursuant to the final judgment entered in Maldonado Bautista v.
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Santacruz, No. 5:25-CV-01873-SSS-BFM, --- F. Supp. 3d ---, 2025 WL 3289861 (C.D.
Cal. Nov. 20, 2025).
The Court notes that while Respondents state that Petitioner is part of the Bond
Eligible class in Maldonado Bautista, at least one court has disagreed. See Xie v. LaRose,
No. 3:25-CV-03649-RBM-MSB, 2026 WL 92066, at *1-2 (S.D. Cal. Jan. 13, 2026)
(finding that petitioner who had previously been apprehended upon arrival and released on
parole was not part of the class). Regardless, however, the Court does agree with
Respondents that Petitioner’s re-detention is governed by 8 U.S.C. § 1226 rather than
§ 1225, irrespective of and independently from Maldonado Bautista. The Court has
previously held that where a petitioner is apprehended at the border, paroled into the
country, and had been residing in the country when he was re-detained, his detention is
governed by § 1226. See, e.g., Martinez Lopez v. Noem et al., No: 25-cv-2717-JES-AHG,
2025 WL 3030457, at *4-5 (S.D. Cal. Oct. 30, 2025) (explaining reasoning and citing
cases); Beltran et al. v. Noem et al., No. 25CV2650-LL-DEB, 2025 WL 3078837, at *3-4
(S.D. Cal. Nov. 4, 2025) (holding same); Garcia v. Noem et al., No. 25CV3759-LL-BLM,
2026 WL 194745, at *2 (S.D. Cal. Jan. 26, 2026) (same).
Accordingly, the Court GRANTS the petition, and ORDERS as follows:
(1) The Court ORDERS Respondents to provide Petitioner with a bond
determination hearing under 8 U.S.C. § 1226(a) within ten days of this Order.
At the hearing, Respondents must provide Petitioner with a constitutionally
adequate and individualized bond hearing; and
(2) Respondents are ORDERED to File a Notice of Compliance within five days
of providing Petitioner with a bond redetermination hearing, including
apprising the Court of the results of the hearing and providing a copy of the
bond order.
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The Clerk of Court is ORDERED to CLOSE this case.
IT IS SO ORDERED.
Dated: February 13, 2026
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