Case Name in Immigration Case - Unavailable

25-cv-3730-GPC-DEB
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
FANJUN CONG,
Petitioner,
v.
KRISTI NOEM, Secretary, U.S.
Department of Homeland Security, et al.,
Respondents.
Case No.: 25-cv-3730-GPC-DEB
ORDER GRANTING IN PART
PETITION FOR WRIT OF
HABEAS CORPUS
[ECF No. 1]
On December 22, 2025, Petitioner filed a petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2241. ECF No. 1. Respondents filed a return to the petition on
January 2, 2026, ECF No. 5, and Petitioner filed a traverse on January 6, 2026, ECF
No. 6. For the following reasons, the Court GRANTS in part the petition for writ of
habeas corpus. The hearing previously scheduled for January 16, 2026, is hereby
vacated.
BACKGROUND
Petitioner is a 21-year-old citizen of China. ECF No. 1, ¶¶ 11, 16. Petitioner has
lived in San Diego with his parents for nine years. Id. ¶ 16. Prior to his detention,
Petitioner was a student at San Diego College. Id.
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Petitioner came to the United States with his mother in 2017 on a B2 Visa. Id. ¶
17. Petitioner’s mother applied for asylum in the United States after she was persecuted
under China’s family planning policy. Id. As a result, Petitioner became a derivative
asylum applicant under his mother’s case. Id. Neither Petitioner nor his mother have
received final determinations on their asylum applications. Id.
On May 6, 2025, Petitioner inadvertently crossed the border into Mexico due to
a navigation error while driving. Id. ¶ 18. Upon turning around and attempting to re-
enter the United States, border patrol agents arrested Petitioner and placed him into
expedited removal proceedings under 8 U.S.C. § 1225(b). Id. Petitioner was transferred
to Otay Mesa Detention Center, where he remains today. Id.
Upon apprehension, Petitioner expressed a fear of return. Id. ¶ 1. Respondents
provided Petitioner with a credible fear interview but found no credible fear. Id. An
immigration judge affirmed Respondents’ credible fear determination. ECF No. 5-1, ¶
7.
Petitioner has now been detained under 8 U.S.C. 1225(b)(1) at Otay Mesa
Detention Center for just over eight months. ECF No. 5, at 2. He has received no
custody determination by a neutral decisionmaker. Petitioner now alleges that his
prolonged detention violates the Due Process Clause of the Fifth Amendment of the
Constitution and the Immigration and Nationality Act. ECF No. 1, ¶¶ 22-25.
LEGAL STANDARD
Under 28 U.S.C. § 2241, a writ of habeas corpus may be granted to any petitioner
who demonstrates that he is “in custody in violation of the Constitution or laws or
treaties of the United States.” 28 U.S.C. § 2241(c)(3); see Rasul v. Bush, 542 U.S. 466,
473 (2004). As explained by the Supreme Court, “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); Pinson v. Carvajal, 69 F.4th 1059, 1067 (9th Cir. 2023) (habeas
actions limited to challenges of the legality or duration of confinement).
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A prisoner bears the burden of demonstrating that “[h]e is in custody in violation
of the Constitution or laws or treaties of the United States.” See Espinoza v. Sabol, 558
F.3d 83, 89 (1st Cir. 2009).
DISCUSSION
I. Jurisdiction
Petitioner invokes this Court’s jurisdiction pursuant to the Immigration and
Nationality Act (“INA”), 8 U.S.C. § 1101 et seq., and the federal habeas provision, 28
U.S.C. § 2241. ECF No. 1, ¶¶4-5. Respondents argue that this Court lacks jurisdiction
to hear Petitioner’s claims under 8 U.S.C. § 1252(a)(2)(A), 1252(e), and 1252(g). ECF
No. 5, at 2-6. The Court disagrees.
A. Section 1252(a)(2)(A) and (e) – Expedited Removal
Sections 152(a)(2)(A) and (e) specifically apply to the expedited removal process
outlined in 8 U.S.C. § 1225.
Section 1252(a)(2)(A) asserts that “no court shall have jurisdiction to review” (1)
“any individual determination or to entertain any other cause or claim arising from or
relating to the implementation or operation of an [expedited removal] order”; (2) “a
decision by the Attorney General to invoke” the expedited removal statute; (3) “the
application of [§ 1225(b)(1)] to individual aliens, including the [credible fear]
determination made under [§] 1225(b)(1)(B)”; and (4) the “procedures and policies
adopted by the Attorney General to implement the provisions of [§ 1225(b)(1)].” 8
U.S.C. § 1252(a)(2)(A)(i), (ii), (iii) & (iv).
Section 1252(e) reiterates that no court may “enter declaratory, injunctive, or
other equitable relief in any action pertaining to an order to exclude an alien in
accordance with section 1225(b)(1),” 8 U.S.C. § 1252(e)(1). However, the section
allows for narrow habeas corpus challenges addressing (1) whether the petitioner is an
alien, (2) whether the petitioner was ordered removed, and (3) whether petitioner is
lawfully admitted for permanent residence. Id. § 1252(e)(2)(A)-(C). Section 1252(e)(3)
also allows for challenges to the constitutional validity of the system.
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Based on these provisions, Respondents argue that Petitioner’s claim falls outside
the limited habeas corpus authority provided under § 1252(e)(2). However, Petitioner
does not challenge the discretionary decision to place him in expedited proceedings or
the implementation of proceedings thereafter. Rather than questioning the exercise of
discretion in selecting the expedited removal process, Petitioner is challenging the
constitutionality of his current prolonged detention while the removal process is
effectuated against him.
Given the nature and substance of the Petitioner's attack,
neither § 1252(a)(2)(A) or § 1252(e) deny the Court of its jurisdiction to entertain the
petition. See, e.g., Noori v. LaRose, -- F. Supp. 3d --, No. 25-CV-1824-GPC-MSB, 2025
WL 2800149, at *7-*8 (S.D. Cal. Oct. 1, 2025).
B. Section 1252(g)
Though not limited to the expedited removal process, section 1252(g) states that,
with limited exceptions, “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.”
8 U.S.C. § 1252(g) (emphasis added); Reno v. Am.-Arab Anti-Discrimination Comm.,
525 U.S. 471, 482 (1999). In that light, § 1252(g) is a narrow statutory provision that
concentrates on those three discrete actions. Reno, 525 U.S. at 482.
Respondents argue that the § 1252(g) bar applies because Petitioner’s claims
because “Petitioner’s primary request within his petition is to have this Court review
DHS’s determination of his inadmissibility.” ECF No. 5, at 6. However, this is a
mischaracterization of Petitioner’s pleading. Petitioner does not ask the Court to review
DHS’s determination of his admissibility or its decision to execute a removal order
against him. Rather, Petitioner challenges the legality of his present detainment,
specifically objecting to the and the prolonged length of detention without a hearing.
ECF No. 1, ¶ 23; ECF No. 6, at 2.
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Detainment of Petitioner does not fall within the three discrete actions identified
in § 1252(g). Thus, § 1252(g) does not deprive the Court’s jurisdiction. See, e.g., Aditya
W. H. v. Trump, 782 F. Supp. 3d 691, 704 (D. Minn. 2025) (finding a claim against
detention did not fall under Section 1252(g)); Mahdawi v. Trump, 781 F. Supp. 3d 214,
224-26 (D. Vt. 2025) (same); Deng Chol A. v. Barr, 455 F. Supp. 3d 896, 901 (D.
Minn. 2020) (“Although the court may not review discretionary decisions made by
immigration authorities, it may review immigration-related detentions to determine if
they comport with the demands of the Constitution.”).
In sum, the Court finds that § 1252 does not strip this Court of jurisdiction to
consider the petition now before it.
II. Merits
Petitioner claims that the prolonged nature of his detention—eight months—
violates the Fifth Amendment’s Due Process Clause and the INA. ECF No. 1, ¶¶ 22-25.
Respondents counter that Petitioner is not entitled to raise a due process claim. See
generally ECF No. 5.
A. Entitlement to Due Process Claim
The parties do not dispute that Petitioner is detained under § 1225(b)(1). See ECF
No. 1, ¶¶ 1, 23; ECF No. 5, at 2. However, Petitioner argues that his detention has
become unconstitutionally prolonged. ECF No. 1, ¶ 1. Respondents contend, relying on
Dep't of Homeland Sec. v Thuraissigiam, that inadmissible arriving noncitizens have no
due process rights other than those afforded by statute. ECF No. 5, at 7.
In Dep't of Homeland Sec. v. Thuraissigiam, the respondent was a noncitizen who
was detained shortly after his unlawful entry while still close to the border. 591 U.S.
103, 140 (2020). Keeping those characteristics in mind, the Supreme Court held that
those “in respondent's position ha[ve] only those rights regarding admission that
Congress has provided by statute.” Id.
After the decision, district courts have taken two different approaches. In one
blanket approach, district courts have dismissed or denied habeas petitions from those
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in Petitioner’s position when they challenge detention on due process grounds. See, e.g.,
Petgrave v. Aleman, 529 F. Supp. 3d 665, 669 (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, 336 (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.”); Zelaya-Gonzalez
v. Matuszewski, No. 23-CV-151-JLS-KSC, 2023 WL 3103811, at *4 (S.D. Cal. Apr.
25, 2023) (“Binding Ninth Circuit and Supreme Court precedents are clear that
Petitioner lacks any rights beyond those conferred by statute, and no statute entitles
Petitioner to a bond hearing.”); Mendoza-Linares v. Garland, No. 21-CV-1169-BEN-
AHG, 2024 WL 3316306, at *2 (S.D. Cal. June 10, 2024) (same).
However, most courts have opted for an alternative, as-applied approach.
Specifically, while facial challenges to mandatory detention have been rejected, see
Demore v. Kim, 538 U.S. 510, 530-31 (2003), nothing has been said “about whether
due process may eventually require a hearing.” Black v. Decker, 103 F.4th 133, 149 (2d
Cir. 2024) (emphasis in original). This is also true for Thuraissigiam. Though
Thuraissigiam limits an arriving noncitizen’s due process rights regarding admission,
the court did not address the issue of prolonged detention. See Padilla v. U.S. Immigr.
& Customs Enf't, 704 F. Supp. 3d 1163, 1171 (W.D. Wash. 2023) (“Thuraissigiam’s
discussion of due process is necessarily constrained to challenges to admissibility to the
United States. This was the sole claim presented and the respondent expressly asked for
a chance to reapply for asylum and admission.”).
Additionally, “the Supreme Court has . . . explicitly stated that as-applied
constitutional challenges to 8 U.S.C. § 1226(c)[, which cover mandatory detention
under that statute,] are not foreclosed.” Abdul-Samed v. Warden of Golden State Annex
Det. Facility, No. 1:25-CV-00098-SAB-HC, 2025 WL 2099343, at *5 (E.D. Cal. July
25, 2025). While the Ninth Circuit has not spoken on whether due process requires a
bond hearing for noncitizens mandatorily detained, the First, Second, and Third Circuits
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have held that “the Due Process Clause imposes some form of ‘reasonableness’
limitation upon the duration of detention . . . under [section 1226(c)].” Reid v. Donelan,
17 F.4th 1, 7 (1st Cir. 2021) (alterations in original) (citation omitted); see Black, 103
F.4th at 138; German Santos v. Warden Pike Cnty. Corr. Facility, 965 F.3d 203, 209-
10 (3d Cir. 2020). Though § 1225(b) was not specifically addressed by the Supreme
Court or the three Circuit courts, § 1225(b) contains similar mandatory detention
provisions to § 1226(c). Thus, the reasoning underlying this as-applied approach would
seemingly transfer to § 1225(b).
Given this background, a majority of district courts have found prolonged
detention under § 1225(b) without a bond hearing can eventually give rise to due
process issues. See, e.g., Sadeqi v. LaRose, No. 25-CV-2587-RSH-BJW, 2025 WL
3154520, at *2 (S.D. Cal. Nov. 12, 2025) (“This Court agrees with the majority position
that a petitioner detained under Section 1225(b)(1) may assert a due process challenge
to prolonged mandatory detention without a bond hearing.”); 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.”); Banda v. McAleenan, 385 F. Supp. 3d 1099, 1116 (W.D. Wash. 2019)
(collecting cases); 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
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§ 1225(b) may be held indefinitely and unreasonably with no due process implications,
nor that such aliens have no due process rights whatsoever.”).
This Court agrees with the majority. While Thuraissigiam limits an arriving
noncitizen’s due process rights regarding admission, a petitioner may still assert a due
process claim against prolonged mandatory detention without a bond hearing.
B. Violation of Due Process
To determine whether a petitioner’s detention has been unreasonably prolonged,
the Court applies the Banda v. McAleenan’s six-factor analysis as a framework, which
weighs: (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. Banda v.
McAleenan, 385 F. Supp. 3d 1099 (W.D. Wash. 2019). See also Sadeqi v. LaRose, -- F.
Supp. 3d --, No. 25-CV-2587-RSH-BJW, 2025 WL 3154520, at *3 (S.D. Cal. Nov. 12,
2025) (applying the Banda factor analysis to a prolonged detention claim).
1. Total Length of Detention to Date.
Petitioner has been detained for just over eight months. Petitioner argues that this
detention is unreasonably prolonged. ECF No. 1, ¶ 1.
While eight months of detention does not presumptively establish unreasonably
prolonged detention, eight months is also not so little time as to preclude constitutional
scrutiny. See Sadeqi v. LaRose, No. 25-CV-2587-RSH-BJW, 2025 WL 3154520, at *3
(S.D. Cal. Nov. 12, 2025) (“The Court agrees with Respondents that the length of
Petitioner's detention to date—almost 12 months—does not by itself, without more,
establish prolonged detention in violation of due process. But neither does that length
of detention serve as a safe harbor or insulate Petitioner's case from constitutional
review.”). Additionally, courts have previously found that similar lengths of detention
were unreasonable. See, e.g., 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
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for over 10 months without a bond hearing, in the context of the specific circumstances
described above, has become unreasonable and violates due process.”); Amado v.
United States Dep't of Just., No. 25-CV-2687-LL-DDL, 2025 WL 3079052, at *6 (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.”); Masood v. Barr, No. 19-CV-
07623-JD, 2020 WL 95633, at *3 (N.D. Cal. Jan. 8, 2020) (finding detention for nearly
nine months weighs in favor of the petitioner).
Thus, this factor weighs in favor of Petitioner, though it is not determinative.
2. Likely Duration of Future Detention.
The second factor requires consideration of “how long the detention is likely to
continue absent judicial intervention; in other words, the ‘anticipated duration of all
removal proceedings—including administrative and judicial appeals.’” Banda v.
McAleenan, 385 F. Supp. 3d 1099, 1119 (W.D. Wash. 2019) (quoting Jamal A. v.
Whitaker, 358 F. Supp. 3d 853, 859 (D. Minn. 2019)).
Here, the length of future detention is unclear. Petitioner asserts only that the
Government has been either “unable or unwilling” to remove Petitioner. ECF No. 1, ¶
1. Respondents offer no estimate of a timeline, stating only that they requested a travel
document for Petitioner on December 27, 2025, and that they will be able to “effectuate”
Petitioner’s removal “promptly” once they receive such a document. ECF No. 5-1, ¶¶
10-11. Respondents do not state why they waited more than six months after detaining
and issuing an expedited removal order against Petitioner to request a travel document.
“While the Court cannot definitively determine the duration of petitioner's future
detention,” given the pace of proceedings against Petitioner thus far, “it appears likely
petitioner will face many more months . . . in detention,” especially if there is a petition
for review before the Court of Appeals. Belqasim v. Bostock, No. 2:25-CV-01282-LK-
TLF, 2025 WL 3466971, at *9 (W.D. Wash. Oct. 28, 2025), report and
recommendation adopted sub nom. Belqasim v. Hermosillo, No. 2:25-CV-01282-LK,
2025 WL 3170929 (W.D. Wash. Nov. 13, 2025); Guatam v. Corr. Corp. of Am., No.
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3:25-CV-3600-JES-DEB, 2026 WL 25846, at *5 (S.D. Cal. Jan. 5, 2026) (“[A] removal
order may not become final until after the appeals Petitioner could file, to both the Board
of Immigration Appeals and Ninth Circuit . . . These appeals can take a long time.”);
Abdul-Samed v. Warden of Golden State Annex Det. Facility, No. 1:25-CV-00098-
SAB-HC, 2025 WL 2099343, at *7 (E.D. Cal. July 25, 2025) (“Although the Court
recognizes that future events are difficult to predict, the Court nevertheless finds that in
the event Petitioner's applications for relief from removal are denied, Petitioner's
possible administrative appeal and judicial review by the Ninth Circuit will be
sufficiently lengthy such that this factor weighs in favor of Petitioner.”).
Thus, the Court finds this factor falls in favor of Petitioner.
3. Conditions of Detention.
For 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). Courts have
recognized that the conditions at the Otay Mesa Detention Center are “indistinguishable
from penal confinement.” See Kydyrali v. Wolf, 499 F. Supp. 3d 768, 773 (S.D. Cal.
2020); Amado v. United States Dep't of Just., No. 25-CV-2687-LL-DDL, 2025 WL
3079052, at *6 (S.D. Cal. Nov. 4, 2025). Thus, this factor weighs in favor of Petitioner.
4. Delays in Removal.
The fourth and fifth factors concern delays in the removal proceedings caused by
Petitioner or the government. In terms of the fourth factor, neither party has indicated
Petitioner caused any undue delays. Accordingly, this factor is neutral.
As to the fifth factor, the only evidence before the Court is that Respondents
waited over six months after detaining Petitioner and issuing an expedited removal
order against him to request travel documentation to effectuate Petitioner’s removal.
ECF No. 5-1, ¶ 10. There is otherwise no indication in any of the filings that
Respondents caused any delay in the proceedings. Thus, the Court finds that the fifth
factor is also neutral or, at most, weighs slightly in favor of Petitioner.
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5. Likelihood of Final Removal Order.
For the sixth Banda factor, the Court evaluates the likelihood that the removal
proceedings will result in a final order of removal, or “[i]n other words, the Court
considers whether the noncitizen has asserted any defenses to removal.” Banda, 385 F.
Supp. 3d at 1120. Here, Petitioner has been given a negative credible fear determination,
which was affirmed by an immigration judge. ECF No. 1, ¶ 1; ECF No. 5-1, ¶ 7.
Petitioner does not appear to raise any other defenses to removal. Thus, the Court finds
this factor weighs in favor of Respondents.
6. Weighing the Factors.
In sum, at least three of the six factors weigh in favor Petitioner, one weighs in
favor of Respondents, and the others are neutral. Accordingly, the Court concludes that
Petitioner’s detention has become unreasonably prolonged. Thus, Petitioner is entitled
to a prompt and individualized bond hearing, where Respondents must justify
Petitioner’s continued detention “by a showing of clear and convincing evidence that
Petitioner would likely flee or pose a danger to the community if released.” Sadeqi v.
LaRose, No. 25-CV-2587-RSH-BJW, 2025 WL 3154520, at *4 (S.D. Cal. Nov. 12,
2025); Abdul-Samed v. Warden of Golden State Annex Det. Facility, No. 1:25-CV-
00098-SAB-HC, 2025 WL 2099343, at *9 (E.D. Cal. July 25, 2025); Toktosunov v.
Wamsley, No. 2:25-CV-1724-TL, 2025 WL 3492858, at *6 (W.D. Wash. Dec. 5,
2025).1
CONCLUSION
Based on the reasoning above, the Court GRANTS IN PART the petition for
writ of habeas corpus pursuant to 28 U.S.C. § 2241.
In his petition, Petitioner requests release, or in the alternative, a bond hearing
before an immigration judge. ECF No. 1, at 7. “The Court finds, consistent with other
1 Having reached this conclusion on Petitioner’s due process claim, the Court declines
to decide the merits of Petitioner’s INA claim.
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post-Jennings cases, that the appropriate remedy is a bond hearing before an
immigration judge[.]” Lopez v. Garland, 631 F. Supp. 3d 870, 882 (E.D. Cal. 2022);
Abdul-Samed, 2025 WL 2099343, at *9. If Respondents fail to comply with this order,
Petitioner may seek further relief from the Court at that time.
Accordingly, the Court ORDERS Respondents to provide Petitioner with a bond
hearing within seven (7) days of this Order.2 Respondents are ORDERED to FILE a
Notice of Compliance within ten days of providing Petitioner with a bond hearing. The
Clerk of Court SHALL enter judgment in Petitioner's favor and close this case.
IT IS SO ORDERED.
Dated: January 9, 2026
2 In his prayer for relief, Petitioner requests an award of costs and reasonable attorney’s
fees. ECF No. 1, at 7. Petitioner’s counsel may submit an appropriate EAJA fee
application within 30 days of the issuance of this Order.
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