Case Name in Immigration Case - Unavailable

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
RUPLAL KHADKA,
Petitioner,
v.
OTAY MESA DETENTION CENTER,
Respondent.
Case No.: 3:26-cv-00475-RBM-MMP
ORDER GRANTING IN PART
PETITION FOR WRIT OF HABEAS
CORPUS
[Doc. 1]
Pending before the Court is Petitioner Ruplal Khadka’s (“Petitioner”) Petition for a
Writ of Habeas Corpus under 28 U.S.C. § 2241 (“Petition”). (Doc. 1.) For the reasons set
forth below, the Petition is GRANTED IN PART.
I. 	BACKGROUND
Petitioner, a native and citizen of Nepal, entered the United States without inspection
on December 3, 2024. (Doc. 1 at 6; Doc. 4 at 2 (citing Doc. 4-1, Ex. 1 at 3–4).) “He was
determined to be inadmissible under 8 U.S.C. § 1182(a)(7)(A)(i)(I) [and] placed in
expedited removal proceedings pursuant to 8 U.S.C. § 1225(b)(1).” 	(Doc. 4 at 2.)
Petitioner was then taken into United States Immigration and Customs Enforcement’s
(“ICE”) custody. (Id.) On or around January 23, 2025, Petitioner was interviewed by an
asylum officer and subsequently received a positive credible fear determination. (Id.; Doc.
1 at 6.) At some point thereafter, Petitioner was issued a Notice to Appear (“NTA”) which
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initiated full removal proceedings against Petitioner under 8 U.S.C. § 1229a. (Doc. 4 at 2.)
Petitioner’s individual merits hearing was originally scheduled for October 8, 2025,
but the hearing was continued to January 27, 2026, at Petitioner’s request. (Id.) Petitioner
was then granted a second continuance and his merits hearing was rescheduled to June 23,
2026. 	(Id.) 	Petitioner’s 	removal 	proceedings 	remain 	ongoing 	“and 	there 	is 	no
administratively final order of removal at this time.” (Id.)
On January 23, 2026, Petitioner commenced the instant action by filing the Petition.
(Doc. 1.) Respondents filed a Return to the Petition (“Response”) on February 11, 2026.
(Doc. 4.) Petitioner has not filed an optional reply as of the date of this Order.
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 claims he has been detained for over a year without bond or parole. (Doc.
1 at 6–7.) Respondents argue that: (1) the Court lacks jurisdiction because Petitioner failed
to name the warden of the facility where he is detained as a respondent and Petitioner’s
claims are barred by 8 U.S.C. § 1252(g); (2) Petitioner is subject to mandatory detention
under 8 U.S.C. § 1225(b)(1)(B)(ii); (3) Section 1225(b) provides all the due process that
Petitioner 	is 	owed; 	and 	(4) 	Petitioner’s 	detention 	has 	not 	become 	constitutionally
prolonged. (Doc. 4 at 1, 3–9.)
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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).
1. 	Failure to Name Warden
Respondents argue that the Petition should be denied because Petitioner “failed to
name as a respondent the warden of the facility where he is detained.” (Doc. 4 at 3.)
Habeas petitioners “challenging their present physical confinement [must] name
their immediate custodian, the warden of the facility where they are detained, as the
respondent to their petition.” Doe v. Garland, 109 F.4th 1188, 1197 (9th Cir. 2024). Some
“district courts have acknowledged this technical defect, but do not dismiss the case,
particularly where a pro se litigant is involved.” Guatam v. Corr. Corp of Am., Case No.:
3:25-cv-3600-JES-DEB, 2026 WL 25846, at *2 (S.D. Cal. Jan. 5, 2026) (citing cases).
Indeed, the Court “has a duty to ensure that pro se litigants do not lose their right to a
hearing on the merits of their claim due to ignorance of technical procedural requirements.”
Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988).
In this case, Petitioner failed to name his immediate custodian—the warden of the
Otay Mesa Detention Center—as a respondent. “[I]n light of Petitioner’s pro se status and
the liberty interests at issue, the Court . . . will address the [P]etition on the merits rather
than dismiss” it. Guatam, 2026 WL 25846, at *2; see Devilmar v. U.S. Immigr. & Customs
Enf’t, Case No.: 3:26-cv-0009-JES-MSB, 2026 WL 130387, at *1 (S.D. Cal. Jan. 16, 2026)
(finding “it prudent to follow suit of its sister courts and address the Petition on the merits
rather than dismiss the Petition.”); see also Singh v. Field Off. Dir., San Francisco Field
Off., U.S. Immigr. & Customs Enf’t, Case No. 24-cv-03472-RMI, 2024 WL 4454824, at
*1 (N.D. Cal. Sept. 9, 2024) (finding “the interests of justice are best served by”
transferring a habeas petition filed in the wrong district by a pro se litigant who did not
name the warden, “in lieu of dismissal, which would only delay this matter and unduly
burden Petitioner.”).
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2. 	8 U.S.C. § 1252(g)
This 	Court 	has 	consistently 	rejected 	Respondents’ 	jurisdictional 	arguments
concerning 8 U.S.C. § 1252(g) and do so again here so the same reasons. 	See
Constantinovici v. Bondi, 806 F. Supp. 3d 1155, 1161–62 (S.D. Cal. 2025); Hussain v.
LaRose, Case No.: 3:26-cv-00194-RBM-MSB, 2026 WL 206715, at *1 n.2 (S.D. Cal. Jan.
27, 2026); Zhakuov v. Noem, Case No.: 3:26-cv-00288-RBM-DDL, 2026 WL 517981, at
*1 n.2 (S.D. Cal. Feb. 25, 2026); Xie v. LaRose, Case No.: 3:26-cv-00529-RBM-DDL,
2026 WL 549909, at *2 n.2 (S.D. Cal. Feb. 27, 2026).
Here, Petitioner claims he has “been detained for more than a year without . . . bond
or parole.” (Doc. 1 at 6.) He is therefore 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, 803 F. Supp. 3d 1064, 1074 (S.D. Cal. 2025)
(emphasis in original). Accordingly, § 1252(g) does not strip the Court of jurisdiction.
B. 	Due Process
Respondents argue that Petitioner is mandatorily detained pursuant to 8 U.S.C.
§ 1225(b). 	(Doc. 4 at 5.) 	Respondents further argue that Petitioner’s detention does not
violate the Fifth Amendment’s Due Process Clause because § 1225(b) does not limit the
length of detention and “the only process due is that afforded under section 1225(b).” (Id.
at 6–7 (citing Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 207–09 (1953);
and Dep’t of Homeland Sec. v. Thuraissigiam, 591 U.S. 103, 138–40 (2020)).)
As a threshold matter, the Court agrees that Petitioner is subject to detention under
§ 1225(b) because Petitioner was detained at the border upon his arrival to the United States
as an “applicant for admission.” 	See Jennings v. Rodriguez, 583 U.S. 281, 287 (2018)
(“Under [§ 1225, a noncitizen] who ‘arrives in the United States,’ or ‘is present’ in this
country but ‘has not been admitted,’ is treated as ‘an applicant for admission.’”) (quoting
8 U.S.C. § 1225(a)(1)).
However, Respondents’ due process arguments are identical to those recently
addressed and rejected by this Court. 	In Malyshko, this Court “join[ed] the majority of
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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.” Malyshko
v. Warden, Otay Mesa Det. Ctr., Case No.: 3:26-cv-00069-RBM-SBC, 2026 WL 252367,
at *4 (S.D. Cal. Jan. 30, 2026) (quoting Kydyrali v. Wolf, 499 F. Supp. 3d 768, 772 (S.D.
Cal. 2020)); see Hussain, 2026 WL 206715, at *2 (quoting the same); Zhakuov, 2026 WL
517981, at *2 (same); Xie, 2026 WL 549909, at *2 (same). “This Court likewise agree[d]
with those district courts that interpret Thuraissigiam as circumscribing an arriving
noncitizen’s due process rights to admission, rather than limiting that person’s ability to
challenge detention.” Malyshko, 2026 WL 252367, at *4 (quoting Gao v. LaRose, 805 F.
Supp. 3d 1106, 1110 (S.D. Cal. 2025)).
The Court adopts its reasoning in those cases and applies it here. 	For those same
reasons, the Court concludes that an unreasonably prolonged detention under § 1225(b)
without a bond hearing violates due process. 	See also Noori v. LaRose, 807 F. Supp. 3d
1146, 1157 (S.D. Cal. 2025) (“Noncitizens seeking asylum are guaranteed due process
under the 5th Amendment throughout this process [under § 1229a].” 	(citing Reno v.
Flores, 507 U.S. 292, 306 (1993)).
C. 	Prolonged Detention
To determine whether § 1225(b) detention has become unreasonable, the Court
considers:
(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.
Kydyrali, 499 F. Supp. 3d at 773 (citing Banda v. McAleenan, 385 F. Supp. 3d 1099, 1106
(W.D. Wash. 2019)). 1
1 Respondents rely on the framework set forth in Lopez v. Garland, 631 F. Supp. 3d 870,
879 (E.D. Cal. 2022). (Doc. 4 at 8.) However, the Lopez court applied the outlined factors
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First, “the length of detention . . . is the most important factor.” Banda, 385 F. Supp.
3d at 1106. This factor weighs in favor of Petitioner because Petitioner has been detained
for more than 15 months. See Abdul Kadir v. Larose, Case No.: 25cv1045-LL-MMP, 2025
WL 2932654, at *5 (S.D. Cal. Oct. 15, 2025) (collecting cases and finding that a nearly 13-
month detention weighed in favor of the petitioner); see also Sibomana v. LaRose, Case
No.: 3:22-cv-933-LL-NLS, 2023 WL 3028093, at *4 (S.D. Cal. Apr. 20, 2023) (“In
general, as detention continues past a year, courts become extremely wary of permitting
continued custody absent a bond hearing.”) (citation omitted).
The second factor, the likely duration of future detention, also weighs in favor of
Petitioner. 	Respondents 	claim 	that 	Petitioner’s 	“individual 	merits 	hearing 	is 	now
scheduled for June 23, 2026, at which point his path to release or removal should be clear.”
(Doc. 4 at 9.) 	But “there is . . . no indication that this hearing will even result in a final
decision in his removal proceedings.” 	Prabhpreet v. LaRose, No. 26-CV-393-JES-SBC,
2026 WL 310192, at *4 (S.D. Cal. Feb. 5, 2026). 	“‘Due to the built in procedures,’ full
removal proceedings [under § 1229a] ‘typically take place over the course of multiple
hearings,’ which ‘allows time for noncitizens to both gather evidence in support of petitions
for relief available in immigration court and seek collateral relief from other components
of the Department of Homeland Security (‘DHS’).” 	Valencia Zapata v. Kaiser, 801 F.
Supp. 3d 919, 926 (N.D. Cal. 2025) (quoting Coal. for Humane Immigrant Rts. v. Noem,
805 F. Supp. 3d 48, 59 (D.D.C. 2025)). “Either party can appeal the IJ’s decision to the
Board of Immigration Appeals (‘BIA’), and if the BIA upholds a removal order, the
noncitizen can appeal that decision to a United States court of appeals.” Id. (citing 8 C.F.R.
§§ 1240.15, 1003.1; 8 U.S.C. § 1252). As such, “full removal proceedings ‘take place over
the course of several months.’” Id. (quoting Make the Rd. New York v. Noem, 805 F. Supp.
3d 139, 148 (D.D.C. 2025)). 	In this case, regardless of the outcome of his hearing,
in the § 1226 context. See Lopez, 631 F. Supp. 3d at 879. The Court notes the factors set
forth above share significant overlap with the Lopez factors.
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Petitioner cannot be removed until his full removal proceedings are completed, his
application for relief is adjudicated, if and when one is filed, and an order of removal
becomes final. 	See Sadeqi v. LaRose, 809 F. Supp. 3d 1090, 1094–95 (S.D. Cal. 2025);
K C v. Chestnut, No. 1:26-cv-00227-DJC-CSK, 2026 WL 412505, at *2 (E.D. Cal. Feb.
13, 	2026) 	(finding 	a 	petitioner’s 	“detention 	is 	likely 	to 	endure 	indefinitely 	while
determinations about [his] asylum claim and removability are made and appealed”).
As to 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). Petitioner is detained
at the Otay Mesa Detention Center, which several courts have found is “indistinguishable
from penal confinement.” Kydyrali, 499 F. Supp. 3d at 773 (citation omitted); see Abdul,
2025 WL 2932654, at *5. This factor also weighs in Petitioners’ favor.
The fourth and fifth factors concern delays in the removal proceedings caused by
Petitioner and the Government, respectively. The Court notes that Petitioner’s immigration
case has been “pending before the agency for over [fifteen] months—well beyond the
average completion time for removal proceedings in a detained case.” 	See Kydyrali, 499
F. Supp. 3d at 773 (citing Demore v. Kim, 538 U.S. 510, 529 (2003)). Petitioner’s merits
hearing was originally set for October 8, 2025, and, as Respondents note, Petitioner “has
twice requested continuances of his merits hearing.” (Doc. 4 at 2, 9; see also Doc. 1 at 1
(alleging Petitioner’s “court date” was changed once).) Although Petitioner’s reasons for
his requests are not known, the two continuances moved his merits hearing by eight months
to June 23, 2026. 	Cf. Abduraimov v. Andrews, Case No. 1:25-cv-00843-EPG-HC, 2025
WL 2912307, at *9 (E.D. Cal. Oct. 14, 2025) (“The fact that Petitioner chose to pursue an
application for relief and requested continuances to further that application does not
deprive him of a constitutional right to due process.”) (quoting Henriquez v. Garland, Case
No. 5:22-cv-00869-EJD, 2022 WL 2132919, at *5 (N.D. Cal. June 14, 2022)).
Moreover, Respondents contend that they have “not cause[d] any delay in the
removal proceedings,” but do not provide the date on which Petitioner’s § 1229a removal
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proceedings commenced or the relevant NTA to allow the Court to reach such a conclusion.
(See Doc. 4 at 6.) Petitioner states he was interviewed on January 23, 2025, “got a positive
decision, [and] after that they started [his] court proceedings.” 	(Doc. 1 at 6.) 	Although
Respondents acknowledge that the filing of the NTA initiated Petitioner’s full removal
proceedings under § 1229a (see Doc. 4 at 2), they provide no information about the removal
proceedings to date or any reason for why Petitioner’s hearing was originally scheduled
over 	eight 	months 	after 	he 	received 	a 	positive 	credible 	fear 	determination. 	See
Abduraimov, 2025 WL 2912307, at *9 (“[W]here the fault is attributable to some entity
other than the [noncitizen], the factor will weigh in favor of concluding that continued
detention without a bond hearing is unreasonable.”) (quoting Sajous v. Decker, 18-CV-
2447 (AJN), 2018 WL 2357266, at *11 (S.D.N.Y. May 23, 2018)). 	Absent additional
information, the Court finds the fourth and fifth factors are neutral.
Lastly, “[i]n considering the ‘likelihood that the removal proceedings will result in
a final order of removal,’ the Court considers ‘whether the noncitizen has asserted any
defenses to removal.’” 	Abdul Kadir, 2025 WL 2932654, at *5 (quoting Banda, 385 F.
Supp. at 1120). Here, an asylum officer made a positive credible fear determination. (Doc.
1 at 6; Doc. 4 at 2.) As the record before the Court does not contain any other information
concerning his removal proceedings, the sixth factor weights slightly in favor of Petitioner.
See Guatam, 2026 WL 25846, at *5; Gurung v. Larose, Case No.: 26v920-LL-MSB, 2026
WL 776841, at *5 (S.D. Cal. Mar. 19, 2026) (finding the delay factor “slightly in favor of”
the petitioner where “an asylum officer made a positive credible fear finding.”).
Four of the six factors, including the most important one, weigh in Petitioner’s favor.
The Court finds that Petitioner’s detention under § 1225(b) has become unreasonably
prolonged and due process therefore requires that he be provided with a bond hearing.
Accordingly, the Petition is GRANTED. 2
2 Petitioner’s request for an order directing his release is therefore DENIED.
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IV. 	CONCLUSION
Based on the foregoing reasons, the Petition (Doc. 1) is GRANTED. Accordingly:
1. Respondents are ORDERED to arrange an individualized bond hearing for
Petitioner before an immigration judge within fourteen (14) days of entry of this
Order to determine whether his continued detention is warranted.
2. Respondents shall bear the burden of establishing, by clear and convincing
evidence, that Petitioners pose a danger to the community or a risk of flight. 3
3. Respondents are ORDERED to file a Notice of Compliance within ten (10) days
of providing Petitioner with a bond hearing, including apprising the Court of the
results of that hearing.
4. If no hearing occurs within ten (10) days of entry of this Order, Petitioner shall
be released from Respondents’ custody.
IT IS SO ORDERED.
DATE: March 23, 2026
____________________________________
HON. RUTH BERMUDEZ MONTENEGRO
UNITED STATES DISTRICT JUDGE
3 This relief has been granted in similar matters. 	See Doe v. Becerra, 787 F. Supp. 3d
1083, 1089 (E.D. Cal. 2025); Sadeqi, 809 F. Supp. 3d at 1095; Abdul Kadir, 2025
WL 2932654, at *6.
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