Khedry-Kiyarsi v. Divver et al

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3:26-cv-0623-CAB-AHG
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
HEIDAR KHEDRY-KIYARSI,
Petitioner,
v.
PATRICK DIVVER, et al.,
Respondents.
Case No.: 3:26-cv-0623-CAB-AHG
ORDER PARTIALLY GRANTING
WRIT OF HABEAS CORPUS
Before the Court is Petitioner Heidar Khedry-Kiyarsi’s petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2241. 	[Doc. No. 1 (“Petition”).] 	Petitioner claims he is
being detained by immigration authorities in violation of the Fifth Amendment. [Id. at 14–
15.] 	He seeks immediate release or, at minimum, a bond hearing before a neutral
decisionmaker. [Id. at 15.] For the reasons below, the Court PARTIALLY GRANTS the
request for a writ of habeas corpus and ORDERS that Petitioner receive an individualized
bond hearing.
I. 	BACKGROUND
Petitioner is an Iranian citizen who was apprehended and detained by immigration
officials after he entered the United States at or near Roma, Texas on February 21, 2025.
[Id. at 6.] 	He was determined to be an inadmissible arriving alien under 8 U.S.C. §
1182(a)(6)(A)(i) and taken into Immigration and Customs Enforcement (“ICE”) custody.
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[Id. at 8.] 	ICE issued a Notice to Appear on July 12, 2025 and initiated removal
proceedings. [Id. at 6.] 	Petitioner has had five master calendar hearings, and filed an
application for asylum, withholding of removal, and protection under the United Nations
Convention Against Torture on October 13, 2025. 	[Petition at 6.] 	His individual merits
determination is scheduled for May 11, 2026. 	[Doc. No. 4 at 2.] 	He has remained in
custody since February 2025 pursuant to 8 U.S.C. § 1225(b)(2). [Id.]
II. 	LEGAL STANDARD
A writ of habeas corpus challenges the legality of a petitioner’s custody and seeks
to secure release from that illegal custody. Under 28 U.S.C. § 2241, a district court may
grant a writ of habeas corpus when the petitioner “is in custody in violation of the
Constitution or laws or treaties of the United States.” The petitioner bears the burden of
demonstrating that he is in illegal custody. 	See Martinez v. Noem, No. 25-CV-2740-
BJCBJW, 2025 WL 3171738, at *2 (S.D. Cal. Nov. 13, 2025).
III. 	DISCUSSION
Petitioner argues that his prolonged detention without a bond hearing—nearly
thirteen months—violates his Fifth Amendment right to due process. [Petition at 14–15.]
Respondents counter that the relevant statutory language of § 1225(b)(2) and Supreme
Court precedent require Petitioner’s detention until his removal proceedings are resolved.
[Doc. No. 4 at 4–5.] 	The Court has previously discussed that while Supreme Court
precedent does establish that the statutory language of § 1225(b) mandates detention, the
Supreme Court has not decided the constitutional question of whether indefinite detention
is permitted. L.R.G. v. LaRose, 3:25-CV-3490-CAB-MSB, Doc. No. 13, at *5–6 (S.D. Cal.
Jan. 16, 2026).
As to that constitutional question, this Court recently held in L.R.G. that a due
process violation may occur when § 1225(b) results in practically indefinite civil detention.
3:25-CV-3490-CAB-MSB, Doc. No. 13, at *6; see 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
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individualized bond hearing violates due process.”). Respondents’ position has also been
questioned by the Ninth Circuit:
We have grave doubts that any statute that allows for arbitrary prolonged
detention without any process is constitutional or that those who founded our
democracy precisely to protect against the government’s arbitrary deprivation
of liberty would have thought so. Arbitrary civil detention is not a feature of
our American government. “[L]iberty is the norm, and detention prior to trial
or without trial is the carefully limited exception.” 	Civil detention violates
due 	process 	outside 	of 	“certain 	special 	and 	narrow 	nonpunitive
circumstances.”
Rodriguez v. Marin, 909 F.3d 252, 256–57 (9th Cir. 2018) (internal citation omitted)
(alteration in original).
Though there is no brightline test for a violation, this Court and many others have
used the Banda test which considers the following six factors to determine when detention
under § 1225(b) violates due process: (1) the total length of detention to date, which is the
most important factor; (2) the likely duration of future detention; (3) the conditions of
detention; (4) delays in removal proceedings caused by the detainee; (5) delays in 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, 1106
(W.D. Wash. 2019).
The first factor weighs in Petitioner’s favor given he has been detained for over a
year. See Sibomana v. LaRose, No. 22-CV-933-LL-NLS, 2023 WL 3028093, at *4 (S.D.
Cal. Apr. 20, 2023) (finding that courts are typically wary of continued custody without a
bond hearing when detention extends beyond one year). 	Regarding the second factor,
which 	consists 	of 	“the anticipated 	duration 	of 	all 	removal 	proceedings—including
administrative and judicial appeals[,]” Petitioner’s individual merits hearing is not for
another two months. Banda, 385 F.Supp.3d at 1119. Accordingly, the second factor favors
Petitioner. As to the third Banda 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.” Id. (second alteration in original). Petitioner’s confinement is
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similar to penal confinement because, as the Court explained with respect to the petitioner
in L.R.G., who was also detained at Otay Mesa Detention Center, Petitioner is detained “in
a secure facility, guarded by armed personnel, and has restricted access to outdoor space,
activities, and communication.” No. 3:25-CV-3490-CAB-MSB, Doc. No. 13, at *8. Thus,
the third factor favors Petitioner.
Regarding the fourth factor, Respondents claim that Petitioner has made six requests
for delay to hire counsel, file for asylum, and gather and file evidence. [Doc. No. 4 at 2.]
As courts have repeatedly noted, “a petitioner’s pursuit of defenses to removal should not
be held against a determination that they are entitled to due process.” See, e.g., Bayani v.
LaRose, 3:26-CV-266-JES-VET, 2026 WL 194748, at *3. (S.D. Cal. Jan. 26, 2026) (citing
Liban M.J. v. Sec’y of Dep’t of Homeland Sec., 367 F.Supp.3d 959, 965 (D. Minn. 2019)).
Thus, the fourth factor weighs only very slightly against Petitioner. See id. The fifth factor
weighs against Petitioner as he does not allege that the government has caused any delays.
Finally, the sixth factor is neutral as it is unclear what the result of Petitioner’s removal
proceedings will be.
In sum, factors one (the most important), two, and three weigh for Petitioner, while
factors four and five weigh against him, and factor six is neutral. 	With three factors,
including the most important factor, in his favor, and only two factors against him, the
Court concludes that Petitioner’s continued mandatory detention without a bond hearing
violates his right to due process. 	Petitioner is entitled to an individualized bond hearing
before an immigration judge.
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IV. 	CONCLUSION
Based on the foregoing, the Court finds that Petitioner's prolonged detention without
a bond hearing violates the Due Process Clause of the Fifth Amendment. The Court
therefore PARTIALLY GRANTS the writ of habeas corpus and ORDERS Respondents
to provide Petitioner an individualized bond hearing by March 23, 2026. 	Respondents
shall update the Court on the result of the bond hearing by March 24, 2026.
It is SO ORDERED.
Dated: March 9, 2026
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