Kerota v. Noem et al

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
FARS WADE KEROTA,
Petitioner,
v.
KRISTI NOEM, Secretary of the Department
of Homeland Security, et al.,
Respondents.
Case No.: 3:26-cv-00140-RBM-BLM
ORDER GRANTING PETITION
FOR WRIT OF HABEAS CORPUS
[Docs. 1, 2]
Pending before the Court are Petitioner Fars Wade Kerota’s (“Petitioner”) Petition
for Writ of Habeas Corpus (“Petition”) (Doc. 1) pursuant to 28 U.S.C. § 2241 and Motion
and Memorandum of Law in Support of Temporary Restraining Order (“TRO Motion”)
(Doc. 2). 	The Petition and TRO Motion seek the same relief: Petitioner’s release from
detention. (Doc. 1 at 14–15; Doc. 2 at 1–2.)1 For the reasons set forth below, the Petition
is GRANTED.
1 The Court cites the CM/ECF electronic pagination unless otherwise noted.
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I. 	BACKGROUND
A. 	Factual Background
Petitioner was born in Iraq. (Doc. 1 at 3.) He “also has status in the Netherlands.”
(Doc. 7-1 [Declaration of Deportation Officer Hugo Lara Ramirez (“Ramirez Decl.”)] ¶ 3.)
Petitioner applied for admission into the United States at the San Ysidro port of entry on
October 12, 2014, hoping to seek specialized healthcare for his daughter, who had a rare
form of brain cancer. (Id. ¶ 4; Doc. 1 at 3.) He was issued an expedited removal order and
detained by Immigration and Customs Enforcement (“ICE”) pending a credible fear
interview. 	(Ramirez Decl. ¶ 4.) 	United States Citizenship and Immigration Services
conducted the interview, determined that Petitioner had a credible fear of returning to Iraq,
and issued him a Notice to Appear under Immigration and Nationality Act section
212(a)(7)(A)(i). (Id.)
On February 27, 2015, Petitioner was granted asylum by an immigration judge and
released from ICE custody. 	(Id. ¶ 5 (citing Doc. 7-2).) 	On or about May 15, 2017,
Petitioner was convicted of making false statements to obtain an immigration benefit under
18 U.S.C. § 1546. (Id. ¶ 6.) The Department of Homeland Security then moved to reopen
Petitioner’s removal proceedings to revoke asylum based on the conviction. (Id. ¶ 7.) The
motion was granted, and on October 4, 2018, an immigration judge ordered Petitioner
removed to the Netherlands. (Id. ¶ 8 (citing Doc. 7-2 at 12).) Petitioner timely appealed
the removal order, and the Board of Immigration Appeals (“BIA”) dismissed his appeal on
July 7, 2021. (Id.) Petitioner appealed the BIA decision with the Ninth Circuit Court of
Appeals, which dismissed his appeal on March 16, 2023. 	(Id. ¶ 9.) 	Because ICE was
unable to remove him to the Netherlands, Petitioner was released on an Order of
Supervision at some point after he was ordered removed. 	(Doc. 1 at 19 [Declaration of
Fars Kerota] ¶¶ 3, 5.)
On March 20, 2023, Petitioner was enrolled in the Compliance Assistance Reporting
Terminal (“CART”) and scheduled to report to ICE annually. (Martinez Decl. ¶ 10.) On
June 18, 2025, Petitioner’s CART reporting was amended so that he would have to report
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to ICE every six months. (Id. ¶ 10.) ICE detained Petitioner at his required check-in on
September 30, 2025. (Id. ¶ 12.) ICE provided a Notice of Revocation of Release, but “[a]n
informal interview was not provided.” (Id. ¶ 12; Doc. 7-2 at 2.) Since Petitioner has been
detained, 	“ICE 	has 	worked 	expeditiously 	to 	obtain 	a 	travel 	document 	from 	the
Netherland[s] government. 	Should the Netherland[s] government deny the request for a
travel document, [ICE] will attempt to seek a third country for removal.” (Ramirez Decl.
¶ 13.)
B. 	Procedural Background
On January 9, 2026, Petitioner filed the Petition (Doc. 1) and the TRO Motion (Doc.
2). On January 12, 2026, the Court ordered Respondents to show cause why the Petition
and TRO Motion should not be granted by filing a written response. (Doc. 3.) On January
20, 2026, Respondents filed their Response in Opposition to Petitioner’s Habeas Petition
and Application for Temporary Restraining Order (“Response”). (Doc. 7.) On November
24, 2025, Petitioner filed his Traverse in Support of Petition for Writ of Habeas Corpus
and Reply in Support of Motion for Temporary Restraining Order (“Reply”). (Doc. 8.)
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).
III. 	DISCUSSION
Petitioner argues that his detention unlawfully violates the regulations in 8 C.F.R.
§§ 241.4(l) and 241.13(i), and the Supreme Court’s decision in Zadvydas v. Davis, 533
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U.S. 678 (2001). (Doc. 1 at 3–4, 7–14.) Respondents argue that: (1) Petitioner’s detention
falls within the six-month period presumptively reasonable under Zadvydas; (2) but even
if it did not, Petitioner “cannot show that there is no significant likelihood of removal in
the reasonably foreseeable future;” (3) although “there is no evidence an informal interview
was provided,” Petitioner has not established prejudice; and (4) “[t]o the extent Petitioner
is challenging ICE’s decision to detain him for the purpose of removal, such a challenge is
precluded by [8 U.S.C. § 1252(g)].” (Doc. 7 at 3–7.)
The 	Court 	finds 	that 	8 	U.S.C. 	§ 	1252(g) 	does 	not 	preclude 	jurisdiction
and Respondents violated the regulations in 8 C.F.R. §§ 241.4(l) and 241.13(i).
A. 	Jurisdiction
As the Court has an obligation “to determine that [it has] jurisdiction before
proceeding to the merits” of any case, it will first address Respondents’ jurisdictional
arguments. 	Lance v. Coffman, 549 U.S. 437, 439 (2007); see Steel Co. v. Citizens for a
Better Env’t, 523 U.S. 83, 94–95 (1998).
Respondents argue that the Court cannot hear this Petition because 8 U.S.C.
§ 1252(g) precludes jurisdiction. (Doc. 7 at 7.) This statutory bar against judicial review
precludes the Court from exercising jurisdiction over the Attorney General’s decision to
“commence 	proceedings, 	adjudicate 	cases, 	or 	execute 	removal 	orders 	against 	any
[noncitizen].” 8 U.S.C § 1252(g). The Supreme Court has narrowly interpreted § 1252(g)
as applying “only to [those] three discrete actions that the Attorney General may take.”
Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471, 482 (1999) (emphasis
omitted) (quoting 8 U.S.C. § 1252(g)).
Petitioner does not challenge the decision to commence removal proceedings or any
act to execute a removal order. 	Rather, he challenges Respondents’ “detention [of
Petitioner] in violation of his regulatory and due process rights.” (Doc. 8 at 4.) He is thus
enforcing 	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, —F. Supp. 3d —, 2025 WL 2549431, at *4 (S.D. Cal. Sept. 3, 2025)
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(emphasis in original); see also United States v. Hovespian, 359 F.3d 1144, 1155 (9th
Cir. 2004) (noting a “district court may consider a purely legal question that does not
challenge the Attorney General’s discretionary authority, even if the answer to that legal
question . . . forms the backdrop against which the Attorney General later will exercise
discretionary authority”). Therefore, § 1252(g) does not strip the Court of jurisdiction.
B. 	Agency Regulations
Petitioner challenges his detention as unlawful based on ICE’s decision to revoke
his 	release 	without 	providing 	the 	required 	prompt 	interview. 	(Doc. 1 	at 	7–10.)
Respondents concede that Petitioner did not receive an interview but argue that the
regulatory violation did not prejudice Petitioner. (Doc. 7 at 6–7.)2
The detention and release of noncitizens who are subject to a final order of removal
are governed by 8 U.S.C. § 1231. 	Under that statute, “when [a noncitizen] is ordered
removed, the Attorney General shall remove the [noncitizen] from the United States within
a period of 90 days,” also known as the “removal period.” 8 U.S.C § 1231(a)(1)(A). “If
the [noncitizen] does not leave or is not removed within the removal period, the
[noncitizen], pending removal, shall be subject to supervision under regulations prescribed
by the Attorney General.” 	§ 1231(a)(3). 	Those regulations, which govern release and
revocation of release of noncitizens subject to a final order of removal, are 8 C.F.R.
§§ 241.4 and 241.13. Under both regulations, “[u]pon revocation,” the noncitizen “will be
notified of the reasons for revocation of his or her release or parole” and will be given “an
initial informal interview promptly after his or her return to Service custody” to “respond
to the reasons for revocation stated in the notification.” § 241.4(l)(1); § 241.13(i)(3).
Petitioner 	was 	taken 	into 	ICE 	custody 	on 	September 	30, 	2025. 	(Martinez
2 In light of the Court’s finding that Respondents violated agency regulations by not
providing a prompt interview, the Court declines to reach the Parties’ arguments regarding
whether Petitioner received sufficient notice of, and an opportunity to respond to, the
reasons for revocation of his release.
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Decl. ¶ 12.) 	Despite the requirement that Petitioner be afforded “an initial informal
interview promptly after his or her return to Service custody,” he has not been interviewed
in the nearly four months since then. (Id.) This violates the prompt interview requirement.
See M.S.L. v. Bostock, Civ. No. 6:25-cv-01204-AA, 2025 WL 2430267, at *11 (D. Or.
Aug. 21, 2025) (granting petition because an informal interview given 27 days after
petitioner was taken into ICE custody “cannot reasonably be construed as . . . prompt”).
Respondents argue that even though ICE violated agency regulations, Petitioner “has
not established prejudice nor a constitutional violation.” 	(Doc. 7 at 6 (citing Brown v.
Holder, 763 F. 3d 1141, 1148–50 (9th Cir. 2014) (“[T]he mere failure of an agency to
follow its regulations is not a violation of due process.”); United States v. Tatoyan, 474
F.3d 1174, 1178 (9th Cir. 2007) (“Compliance with . . . internal [customs] agency
regulations is not mandated by the Constitution.”)).) The Court disagrees.
“[T]here are, for present purposes, two types of regulations: (1) those that protect
fundamental due process rights, and (2) [] those that do not.” United States v. Raya-Vaca,
771 F.3d 1195, 1205 (9th Cir. 2014), abrogated on other grounds by Dep’t of Homeland
Sec. v. Thuraissigiam, 591 U.S. 103 (2020). “A violation of the first type of regulation . . .
implicates due process concerns even without a prejudice inquiry.” Id. (holding that where
“the regulation violation . . . constituted a denial of [the defendant’s] right to notice and an
opportunity to respond, no showing of prejudice [was] necessary to establish a due process
violation”). 	“There can be little argument that ICE’s requirement that noncitizens be
afforded an informal interview . . . derives from the fundamental constitutional guarantee
of due process.” 	Ceesay v. Kurzdofer, 781 F. Supp. 3d 137, 165 n.26 (W.D.N.Y. 2025).
Accordingly, Respondents’ violation “implicates due process concerns even without a
prejudice inquiry.” Raya-Vaca, 771 F.3d at 1205.
But even if that were not the case, Petitioner suffered sufficient prejudice. 	In the
immigration 	context, 	“violation 	of 	a 	regulation 	does 	not 	invalidate 	a 	deportation
proceeding unless the regulation serves a purpose of benefit to the [noncitizen],” i.e., the
violation “prejudiced interests of the [noncitizen] which were protected by the regulation.”
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United States v. Calderon-Medina, 591 F.2d 529, 531 (9th Cir. 1979). 	ICE’s failure to
comply with the requirements of §§ 241.4 and 241.13 “prejudiced interests of [Petitioner]
which were protected by the regulation[s].” Id. Both regulations were intended “to provide
due process protections to [noncitizens] following the removal period as they are
considered for continued detention, release, and then possible revocation of release.”
Orellana v. Baker, Civil Action No. 25-1788-TDC, 2025 WL 2444087, at *6 (D. Md. Aug.
25, 2025). 	ICE deprived Petitioner of these due process protections when it failed to
provide him with a prompt interview to respond to the reasons for revocation of his release.
“It 	is 	well 	established 	that 	the 	deprivation 	of 	constitutional 	rights 	unquestionably
constitutes irreparable injury.” 	Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012)
(quoting Elrod v. Burns, 427 U.S. 347, 373 (1976)); see also Hernandez v. Sessions, 872
F.3d 976, 995, 1000 (9th Cir. 2017) (holding that “[u]nlawful detention” by immigration
officials constituted “irreparable harm”). 	Therefore, Petitioner was prejudiced by ICE’s
failure to comply with its own regulations.
Government agencies are required to follow their own regulations. United States ex
rel. Accardi v. Shaughnessy, 347 U.S. 260, 268 (1954); Confederated Tribes & Bands of
Yakima Indian Nation v. F.E.R.C., 746 F.2d 466, 474 (9th Cir. 1984) (“It is a well-known
maxim that agencies must comply with their own regulations.”) Most district courts have
“determined that where ICE fails to follow its own regulations in revoking release, the
detention is unlawful and the petitioner’s release must be ordered.” Rokhfirooz v. LaRose,
— F. Supp. 3d —, 2025 WL 2646165, at *4 (S.D. Cal. Sept. 15, 2025); see, e.g., K.E.O. v.
Woosley, Civil Action No. 4:25-cv-74-RGJ, 2025 WL 2553394, at *7 (W.D. Ky. Sept. 4,
2025) (noting “courts across the country have ordered the release of individuals” in ICE
custody where ICE “violated their own regulations”); Grigorian v. Bondi, CASE NO. 25-
cv-22914-RAR, 2025 WL 2604573, at *10 (S.D. Fla. Sept. 9, 2025) (“The failure to
provide [the petitioner] with an informal interview promptly after his detention or to
otherwise provide a meaningful opportunity to contest the reasons for revocation violates
both ICE’s own regulations and the Fifth Amendment Due Process Clause. This compels
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[the petitioner’s] release.”). This Court reaches the same conclusion: because Respondents
violated the prompt interview requirement in 8 C.F.R. §§ 241.4 and 241.13, the Petition is
GRANTED.
IV. 	CONCLUSION3
For the foregoing reasons, the Petition (Doc. 1) is GRANTED. Accordingly:
1. Respondents are 	ORDERED 	to immediately release Petitioner from custody,
subject to his preexisting Order of Supervision.
2. Respondents 	SHALL 	NOT 	re-detain 	Petitioner 	absent 	compliance 	with 	the
requirements in 8 C.F.R. §§ 241.4 and 241.13, which include, at a minimum, pre-
deprivation notice describing the change of circumstances justifying Petitioner’s re-
detention and a prompt informal interview.4
3. The TRO Motion (Doc. 2) is DENIED AS MOOT.
IT IS SO ORDERED.
DATE: January 23, 2026
____________________________________
HON. RUTH BERMUDEZ MONTENEGRO
UNITED STATES DISTRICT JUDGE
3 In light of the Court’s Order, the Court does not address the other claims in the Petition.
4 See Espinoza v. Kaiser, Case No. 1:25-CV-01101 JLT SKO, 2025 WL 2581185, at *14
(E.D. Cal. Sept. 5, 2025).
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