Bothejue v. Noem et al

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
WELATHANTRIGA SUJITH
DISHANTHA BOTHEJUE,
Petitioner,
v.
KRISTI NOEM, Secretary of the
Department of Homeland Security, et al.,
Respondents.
Case No.: 	26-CV-814 JLS (BLM)
ORDER:
(1) GRANTING IN PART PETITION
FOR WRIT OF HABEAS CORPUS,
AND
(2) DENYING AS MOOT MOTION
FOR TEMPORARY RESTRAINING
ORDER
(ECF Nos. 1, 2)
Presently before the Court is Petitioner Welathantriga Sujith Dishantha Bothejue’s
Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 (“Pet.,” ECF No. 1) and
Motion for Temporary Restraining Order (“TRO,” ECF No. 2). Also before the Court are
Respondents’ Return to Petition for Writ of Habeas Corpus (“Ret.,” ECF No. 5) and
Petitioner’s Traverse (“Traverse,” ECF No. 6). For the reasons set forth below, the Court
GRANTS IN PART Petitioner’s Petition for Writ of Habeas Corpus.
BACKGROUND
Petitioner, a native and citizen of Sri Lanka, alleges that he has been detained by the
Department of Homeland Security Immigration and Customs Enforcement at a detention
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center in Texas and now at the Otay Mesa Detention Center since September 28, 2025.
Pet. at 2. Petitioner first entered the United States on February 4, 2014, with a C1/D visa.
Id. 	In 2015, Petitioner applied for asylum, which was denied in May of 2022. 	Id.
Petitioner was not in custody and did not appeal. 	Id. 	On May 18, 2022, Petitioner was
ordered removed to Sri Lanka. 	Ret. at 2. 	This removal order became final on June 17,
2022, because Petitioner did not appeal. Id. On September 28, 2025,1 Petitioner was lured
out of his apartment by an ICE agent who “told him that her dad had accidentally scratched
his car.” Pet. at 2. Petitioner was then arrested upon exiting his apartment, being told only
that he “overstayed his visa.” 	Id. (cleaned up). 	Petitioner claims that in the six months
since his arrest Respondents have made no progress to remove him. Id. at 7. Respondents
argue that ICE has “commenced prompt efforts to execute Petitioner’s removal to Sri
Lanka” and that the “ERO was able to confirm with the Sri Lankan consulate in Los
Angeles that a travel document would be issued.” 	Ret. at 3. 	However, no such travel
document has been issued. 	Traverse at 3. 	Petitioner claims that his continued detention
violates Zadvydas v. Davis, 533 U.S. 678 (2001), 8 U.S.C. § 1231, and the Due Process
Clause of the Fifth Amendment. Id. at 8–13.
LEGAL STANDARD
A federal prisoner challenging the execution of his or her sentence, rather than the
legality of the sentence itself, may file a petition for writ of habeas corpus in the district of
his confinement pursuant to 28 U.S.C. § 2241. See 28 U.S.C. § 2241(a). The sole judicial
body able to review challenges to final orders of deportation, exclusion, or removal is the
court of appeals. 	See generally 8 U.S.C. § 1252; see also Alvarez–Barajas v. Gonzales,
418 F.3d 1050, 1052 (9th Cir. 2005) (citing REAL ID Act, Pub. L. No. 109-13, 119 Stat.
231, § 106(a)). 	However, for claims challenging ancillary or collateral issues arising
independently from the removal process—for example, a claim of indefinite detention—
federal habeas corpus jurisdiction remains in the district court. 	Nadarajah v. Gonzales,
1 Respondents allege the date of his arrest was August 22, 2025. Ret. at 2.
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443 F.3d 1069, 1076 (9th Cir. 2006), abrogated on other grounds by Jennings v. Rodriguez,
138 S. Ct. 830 (2018); Alvarez v. Sessions, 338 F. Supp. 3d 1042, 1048–49 (N.D. Cal.
2018) (citations omitted).
DISCUSSION
When an alien is denied asylum, granted withholding of removal under 8 U.S.C. §
1231(b)(3), and ordered removed, they must be detained for ninety days (90) pending the
government’s efforts to secure their removal to a third country. See 28 U.S.C. § 1231(a)(2).
This ninety-day period is referred to as the “removal period.” § 1231(a)(1)(A). After the
removal period, this statute “limits an alien’s post-removal-period detention to a period
reasonably necessary to bring about that alien’s removal from the United States” and “does
not permit indefinite detention.” 	Zadvydas v. Davis, 533 U.S. 678, 689 (2001). 	A six-
month period of post-removal detention constitutes a “presumptively reasonable period of
detention.” Id. at 701. After this six-month period passes, the petitioner has the burden to
“provide[] good reason to believe that there is no significant likelihood of removal in the
reasonably foreseeable future.” Id. If petitioner satisfies their initial burden, it then shifts
to the Government to rebut that showing. Id. “[F]or detention to remain reasonable, as the
period 	of 	prior 	post-removal 	confinement 	grows, 	what 	counts 	as 	the 	‘reasonably
foreseeable future’ conversely would have to shrink.” 	Id. 	“[O]nce removal is no longer
reasonably foreseeable, continued detention is no longer authorized by statute.” Id. at 699.
In that case, the alien’s release may be conditioned on any of the various forms of
conditioned release. Id. at 700.
“[T]he removal period begins when an alien is ‘ordered removed,’ and the removal
order becomes ‘administratively final.’” 	Johnson v. Guzman Chavez, 594 U.S. 523, 534
(2021).
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Section 1231(a)(1)(B) states that:
The removal period begins on the latest of the following:
(i) The date the order of removal becomes administratively
final.
(ii) If the removal order is judicially reviewed and if a court
orders a stay of the removal of the alien, the date of the court’s
final order.
(iii) If the alien is detained or confined (except under an
immigration process), the date the alien is released from
detention or confinement.
8 U.S.C. § 1231(a)(1)(B).
Petitioner has demonstrated that there is “good reason to believe that there is no
significant likelihood of removal in the reasonably foreseeable future.” Zadvydas, 533 U.S.
at 701.2 Petitioner has been subject to a final order of removal since May of 2022. Traverse
at 2. In the years after that final order of removal, ICE had made no progress towards his
removal. 	Id. 	Now in the nearly six months since his arrest, Respondents only progress
towards his removal is confirmation that at some point a travel document will be issued.
Id. Respondents do not provide a timeline for when this travel document is expected, nor
do they explain what has changed in the last six months to make Petitioner’s removal
foreseeable when they have not been able to remove Petitioner for the past three and a half
years. See Revenko v. Bondi, No. 25-CV-2149-RAJ-BAT, 2025 WL 4070027, at *2 (W.D.
Wash. Dec. 29, 2025) (finding no significant likelihood of removal where no travel
documents had been completed or submitted, and there was no timeframe for the
completion of the steps necessary to obtain travel documents); Seretse-Khama v. Ashcroft,
215 F. Supp. 2d 37, 50 (D.D.C. 2002) (finding removal not reasonably foreseeable where
government had “not demonstrated . . . that any travel documents are in hand, nor have
they provided any evidence, or even assurances from the [foreign] government, that travel
2 Respondents do not contest that the six-month presumptively reasonable period has passed. 	See
generally Ret.; see also Traverse at 2.
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documents will be issued in a matter of days or weeks or even months”). 	Because
Petitioner has shown good reason to believe he will not be removed in the reasonably
foreseeable future, the burden now shifts to Respondents to rebut Petitioner’s showing.
Zadvydas, 533 at 701.
Respondents argue that Petitioner cannot show there is no significant likelihood of
removal in the reasonably foreseeable future because ICE “has already confirmed with the
Sri Lankan consulate that a travel document will be issued.” Ret. at 3. While this occurred
over a month ago, Respondents do not point to any evidence that this travel document will
be issued or when. See generally Ret.; see also Revenko, 2025 WL 4070027, at *2 (finding
the government did not rebut petitioner’s showing where they only submitted a declaration
of the deportation officer and stated that petitioner’s home country had indicated that it
would issue travel documents, but no travel document had been issued). 	As Petitioner
contends, “if ICE could remove [Petitioner], it stands to reason that ICE would have done
so in the three-and-a-half years since he was ordered removed.” 	Pet. at 9. 	The Court
concludes that Respondents have failed to rebut Petitioner’s showing that there is no
significant likelihood of removal. 	Accordingly, the Court GRANTS IN PART the
Petition.3
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3 Because there is no significant likelihood Petitioner will be removed to a third country in the reasonably
foreseeable future, the Court declines to address Petitioner’s request for an injunction. Pet. at 13. The
Court notes, however, that any kind of third country removal like the one Petitioner fears would likely
“present due process issues.” Azzo v. Noem, No. 3:25-cv-03122-RBM-BJW, 2025 WL 3535208, at *8
(S.D. Cal. Dec. 10, 2025) (quoting Esmail v. Noem, No. 25-cv-08325-WLH-RAO, 2025 WL 3030589, at
*6-7 (C.D. Cal. Sept. 26, 2025)).
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CONCLUSION
Based on the foregoing, the Court GRANTS IN PART Petitioner’s Petition for Writ
of Habeas Corpus (ECF No. 1) and 	DENIES AS MOOT Petitioner’s Motion for
Temporary Restraining Order (ECF No. 2). 	The Court 	ORDERS 	Respondents to
immediately release Petitioner from custody. 	The Parties are ORDERED to file a Joint
Status Report by March 4, 2026, confirming that Petitioner has been released. 	As this
concludes the litigation in this case, the Clerk of Court SHALL CLOSE the file.
IT IS SO ORDERED.
Dated: February 23, 2026
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