W.F. v. Warden of Otay Mesa Detention Center

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
WISKENDY FRANCOIS,
Petitioner,
v.
WARDEN OF OTAY MESA
DETENTION CENTER,
Respondent.
Case No.: 3:25-cv-03635-BTM-MMP
ORDER DISMISSING IN PART AND
DENYING IN PART PETITION FOR
HABEAS CORPUS
[ECF NO. 1]
Pending before the Court is Wiskendy Francois’s1 petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2241. 	For the reasons stated below, the petition is
DISMISSED IN PART and DENIED IN PART.
1 The Ninth Circuit has held that “the identity of the parties in any action, civil or criminal, should
not be concealed except in an unusual case, where there is a need for the cloak of anonymity.” United
States v. Stoterau, 524 F.3d 988, 1012 (9th Cir. 2008) (quoting United States v. Doe, 488 F.3d 1154, 1156
n.1 (9th Cir. 2007)). The Petitioner did not move the Court to conceal his identity or otherwise argue that
he needed anonymity in this case. Cf. Fed. R. Civ. P. 26(c) (Protective Orders). Thus, the Court uses the
Petitioner’s name listed on the first page of the petition in its order. (See ECF No. 1 (“Pet.”), at 1.)
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I. 	BACKGROUND
Francois, a citizen of Haiti, was admitted into the United States under a B-2
nonimmigrant visa on August 16, 2016. (Pet., 1; ECF No. 4, Ex. 1 (“Form I-213”), at 2.)
On February 6, 2025, Francois was arrested on an outstanding capias warrant and for
driving with a suspended license. 	(Form I-213, at 2.) 	The next day, he was transferred
from a Florida county jail to the custody of the Department of Homeland Security. (ECF
No. 4 (“Return”), at 2.) The Department found that Francois violated the Immigration and
Nationality Act (“INA”) by remaining in the country after his visa expired on February 15,
2017. 	(Form I-213, at 2.) 	See 8 U.S.C. § 1227(a)(1)(B). 	The Department then placed
Francois in Section 1229a removal proceedings. 	(ECF No. 4, Ex. 2, at 1.)
Since Francois’s proceedings began on February 27, 2025, he has applied four times
to the immigration courts to be released from custody. On March 18, 2025, an immigration
judge found that—based on eight traffic-stop violations Francois had accumulated since
2021 and his capias-warrant history—he failed to show that he was not a public safety or
bail risk. 	(ECF No. 4, Ex. 3.) 	The immigration judge then denied his request. 	(Id.) 	In
subsequent orders issued on May 13, June 27, and December 3, an immigration judge held
that Francois failed to show a material change of circumstances required to reconsider his
custody. 	(ECF No. 4, Exs. 4–6.) 	Francois did not appeal these orders to the Board of
Immigration Appeals. (Return, 3.)
Francois is currently detained at the Otay Mesa Detention Center pursuant to 8
U.S.C. § 1226(a). (Id. at 2.) On December 15, 2025, he petitioned the Court for a writ of
habeas corpus. 	Francois also applied for asylum; his case is scheduled to be heard on
March 16, 2026. (Id. at 2; ECF No. 6 (“Traverse”), at 2.)
II. 	DISCUSSION
Francois seeks relief on four grounds. He argues first that the Respondents violated
his Due Process rights by denying him an individualized custody review. 	(See Pet., 6.)
Second, that the Respondents violated Section 241(a)(6) of the INA, as interpreted in
Zadvydas v. Davis, 533 U.S. 678 (2001), by indefinitely detaining him. (See id.) Third,
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that the Respondents violated the Administrative Procedure Act (“APA”) by detaining him
arbitrarily and capriciously. (See id.) Fourth, that the Respondents violated Section 236(a)
of the INA by subjecting him to “mandatory detention.” (See id. at 7.)
The Respondents contest the Court’s jurisdiction to review the petition. (Return, 4–
7.) They also claim that Francois did not exhaust his administrative remedies. (Id. at 7–
9.) On the merits, they claim that Francois is properly detained under the INA and that his
APA claim is without merit. (Id. at 3, 10.)
The Court addresses jurisdiction and the claims in turn.
A. 	Jurisdiction
The Court has long had jurisdiction to issue writs of habeas corpus to petitioners
held in custody “in violation of the Constitution or laws or treaties of the United States.”
28 U.S.C § 2241(c)(3); see Judiciary Act of 1789, ch. 20, 1 Stat. 73, 81–82. Yet the
Respondents argue that the Court lacks jurisdiction over this petition under 8 U.S.C.
§ 1252(a)(5), (b)(9), and (g).
These are the same jurisdictional arguments that other decisions in this district have
soundly rejected. 	See, e.g., N.A. v. LaRose, 2025 WL 2841989, at *3 (S.D. Cal. Oct. 7,
2025); Garcia v. Noem, No. 25-cv-02180-DMS-MMP, 2025 WL 2549431, at *3 (S.D. Cal.
Sept. 3, 2025); Tran v. Noem, No. 3:25-cv-02391-BTM-BLM, 2025 WL 3005347, at *2
(S.D. Cal. Oct. 27, 2025). 	Francois does not ask the Court to review his removal
proceedings. Rather, he challenges the legality of his detention. (See Traverse, 5–6.) Even
Francois’s claim that the immigration court “wrongfully denied” his requests to be released
from custody does not challenge “any part of the process by which [his] removability will
be determined.” (Pet., 6.) 	Jennings v. Rodriguez, 583 U.S. 281, 294 (2018). The Court
therefore 	adopts 	the 	reasoning 	of 	the 	other 	decisions 	in 	this 	district, 	rejects 	the
Respondents’ arguments, and finds that it has jurisdiction to review the petition.
B. 	Due Process
Under 8 C.F.R. § 1236.1(d)(1), a detainee may request that an immigration judge
review his custody and release him with or without bond. 	Francois claims that the
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Respondents “violated [his] due process rights by denying him an individualized custody
review to which he is entitled under ICE policy.” (Traverse, 6.)
Yet the Respondents appear to have reviewed his applications for release from
custody several times since his detention began. 	The March 18 immigration court order
relies on Francois’s eight traffic-stop violations and capias history to deny his release from
custody. (ECF No. 4, Ex. 3.) The orders thereafter reference the initial determination and
Francois’s personal history before denying his request. 	For instance, the June 25 order
mentions new evidence that Francois was eligible to receive a reinstated license. (ECF No.
4, Ex. 5.) 	The record before the Court reflects that Francois received individualized
custody reviews. Although the reviews denied Francois’s requests, he was not denied an
individualized hearing altogether.
Furthermore, Francois failed to exhaust his administrative remedies by appealing his
custody determinations to the Board of Immigration Appeals. The Ninth Circuit has long
held that a petitioner “must exhaust administrative remedies” by appealing constitutional
claims to the Board of Immigration Appeals before raising those claims in a habeas
petition. See Rojas-Garcia v. Ashcroft, 339 F.3d 814, 819 (9th Cir. 2003). Francois instead
pursued habeas review of the immigration court’s denials ahead of his administrative
appeal. “This short cut was improper.” Leonardo v. Crawford, 646 F.3d 1157, 1160 (9th
Cir. 2011).
When a petitioner takes this shortcut, “a district court ordinarily should either
dismiss the petition without prejudice or stay the proceedings” until administrative
remedies are exhausted. Leonardo, 646 F.3d at 1161. Because Francois has not asked for
a stay, the Court dismisses this claim. The dismissal is without prejudice to another petition
that follows the exhaustion of administrative remedies. See id. at 1160 (“If [the petitioners]
are dissatisfied with the IJ’s bond determination, they may file an administrative appeal . . .
[with] the BIA. If [the petitioners] remain dissatisfied, they may file a petition for habeas
corpus in the district court.” (citation modified)). 	The Court notes that an appeal of the
most recent custody determination to the Board of Immigration Appeals is not the only
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administrative remedy left open to Francois. Should his deadline to file an appeal run out,
he may request another custody redetermination at any time before a final order of removal
is issued. 	See C.F.R. § 1003.19(e). 	His claim that his traffic-stop violations have been
disposed may constitute changed circumstances for the immigration courts.
C. 	INA § 241(a)(6) and Zadvydas
In Zadvydas v. Davis, the Supreme Court construed 8 U.S.C. § 1231(a)(6) to limit
the time a noncitizen2 can be detained after receiving an order of removal. 533 U.S. at 682.
After six months in custody, a detainee may rebut the presumption that his continued
confinement serves the goals of detention. If there is no significant likelihood of removal
in the reasonably foreseeable future, for example, it is unlikely that further indefinite
detention will facilitate a noncitizen’s removal. See id. at 697. Francois argues that, after
eleven months in custody, his detention does not serve a purpose and so is “unreasonably
prolonged.” (Traverse, 11.)
But Zadvydas’s petitioners had final orders of removal under 8 U.S.C. § 1231(a)(6).
Removal was the purpose of detention. 	And once removal was “no longer practically
attainable,” the petitioners challenged their ongoing detention. Zadvydas, 533 U.S. at 690.
Here, Francois does not have a final order of removal. His detention under Section 1226(a)
“serves the purpose of preventing deportable” noncitizens from fleeing during removal
proceedings. Demore v. Kim, 538 U.S. 510, 528 (2003). Because the purposes of detention
are different for a petitioner without a removal order, Section 1231(a)(6) does not avail
Francois.
The Ninth Circuit has extended the Zadvydas doctrine and held that Section 1226(a)
“does not authorize indefinite detention.” 	Prieto-Romero v. Clark, 534 F.3d 1053, 1063
(9th Cir. 2008). The touchstone is whether the detainee “foreseeably remains capable of
being removed—even if it has not yet finally been determined that he 	should be
removed . . . .” 	Id. at 1065. 	In Prieto-Romero v. Clark, the Ninth Circuit found that the
2 This order uses the term “noncitizen” as equivalent to the statutory term “alien.” 	8 U.S.C.
§ 1101(a)(3); see Barton v. Barr, 590 U.S. 222, 226 n.2 (2020).
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petitioner’s three-year detention was not indefinite because there was still a significant
likelihood of removal in the reasonably foreseeable future. His detention still served the
purpose of removal. There was also no evidence that he was unremovable.
Here, Francois’s detention is related to the purpose of his detention. 	The “‘basic
purpose’ of the immigration detention is ‘assuring the alien’s presence at removal.”’
Prieto-Romero, 534 F.3d at 1065 (quoting Zadvydas, 533 U.S. at 699). Francois’s personal
history may warrant detention to assure his presence at removal. 	Also, compared to the
petitioner in Prieto-Romero, whose detention “lack[ed] a certain end date,” Francois’s
detention is more definite. 	Prieto-Romero, 534 F.3d at 1063. 	He is not subject to an
“indefinite period of time” in detention because he has an asylum hearing on March 16,
2026, that will decide his removability moving forward.
The Court denies his claim that his detention violates 8 U.S.C. § 1231(a)(6) because
he has no final order of removal. 	The Court also denies his claim that his detention is
indefinite and in violation of Zadvydas.
D. 	APA
Francois argues that the Department of Homeland Security “has deviated from its
own policy in continuing to detain Petitioner after he was granted immigration relief.”
(Traverse, 7.) But Francois does not identify which policy the Department departed from
or what immigration relief that Francois was granted. 	The I-213 form provided by the
Respondents claims that he applied for asylum on May 18, 2018, and was “eligible for
interview.” (I-213, at 2.) It does not state that he received asylum. Conversely, Francois
stated in his petition that he was detained “after asylum was granted.” (Pet. 6.) He presents
no evidence that he was previously given asylum by the United States.
Without information about the immigration relief that Francois was granted before
being detained, the Court cannot determine whether the Respondents violated the APA.
The Court denies without prejudice this claim.
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E. 	INA § 236(a)
Lastly, Francois claims that the Respondents placed him in mandatory detention and
violated 8 U.S.C. § 1226(a), “which authorizes immigration judges to conduct bond
hearings pending a decision on whether to remove” a noncitizen. (Pet., 7.) He argues that
“the discretionary parole system available to § 1225(b) detainees are not sufficient to
overcome the constitutional concerns raised by prolonged mandatory detention . . . .”
(Traverse, 9.)
Yet as the Respondents concede, Francois is detained pursuant to 8 U.S.C. § 1226(a).
Under that section, the Attorney General has the discretion to detain or release noncitizens
on bond or parole. 	This is opposed to Section 1225, which “mandate[s] detention of
applicants 	for 	admission 	until 	certain 	proceedings 	have 	concluded.” 	Jennings 	v.
Rodriguez, 583 U.S. 281, 297 (2018). Because Francois is detained under Section 1226(a),
he is not subject to mandatory detention. Thus, the Court denies this claim.
III. 	CONCLUSION
For the reasons stated above, the petition for the writ of habeas corpus is DISMISSED
IN PART and DENIED IN PART. 	The Court DISMISSES without prejudice the
Petitioner’s claim that he was not granted an individualized custody review. 	The Court
DENIES without prejudice the Petitioner’s claims that the Respondents violated the INA,
the APA, and Zadvydas.
IT IS SO ORDERED.
Dated: January 20, 2026
___________________________
Honorable Barry Ted Moskowitz
United States District Judge
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