Khatri v. Larose et al

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
TEKBAHADUR KHATRI,
Petitioner,
v.
CHRISTOPHER J. LAROSE, Senior
Warden, Otay Mesa Detention Center, et
al.,
Respondents.
Case No.: 26-CV-927 JLS (BJW)
ORDER (1) GRANTING IN PART
PETITION FOR WRIT OF HABEAS
CORPUS AND (2) DENYING AS
MOOT MOTION FOR
TEMPORARY RESTRAINING
ORDER
(ECF Nos. 1, 3)
Presently before the Court are Tekbahadur Khatri’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. 3). Also before the Court is Respondents’ Return to
Petition for Writ of Habeas (“Ret.,” ECF No. 5) and Petitioner’s Traverse (“Traverse,”
ECF No. 6). 	For the reasons set forth below, the Court GRANTS IN PART the Petition
for a Writ of Habeas Corpus.
BACKGROUND
Petitioner, a citizen of Nepal, alleges that he has been detained by the United States
Department of Homeland Security’s (“DHS”) Immigration and Customs Enforcement
(“ICE”) division at the Otay Mesa Detention Center since March 5, 2025, when he entered
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the United States. 	Pet. ¶ 51. 	Petitioner was determined to have a credible fear of
persecution and was thereafter placed into removal proceedings. 	Id. ¶ 54. 	Petitioner
submitted an asylum application on October 30, 2025. Ret. at 2. Petitioner’s final merits
hearing is scheduled for May 5, 2026. 	Id. at 3. 	Petitioner alleges that his continued
detention violates the Due Process Clause of the Fifth Amendment and INA § 235(b). See
generally Pet.
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,
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
I. 	Jurisdiction
Respondent argues that this Court lacks jurisdiction under 8 U.S.C. § 1252(g)
because Petitioner’s claims arise from DHS’s decision to commence removal proceedings.
Ret. at 4–5. The Court disagrees.
Section 1252(g) provides that “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 under this chapter.” 8 U.S.C. § 1252(g). Section 1252(g) should be read “narrowly”
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as to apply “only to three discrete actions that the Attorney General may take: her ‘decision
or action’ to ‘commence proceedings, adjudicate cases, or execute removal orders.’”
Ibarra-Perez v. United States, No. 24-631, 2025 WL 2461663, at *6 (9th Cir. Aug. 27,
2025) (quoting Reno v. American-Arab Anti-Discrimination Committee, 525 U.S. 471, 482,
487 (1999)). Section 1252(g) “does not prohibit challenges to unlawful practices merely
because they are in some fashion connected to removal orders.” Id. at *7. Section 1252(g)
does not bar due process claims. Walters v. Reno, 145 F.3d 1032, 1052–53 (9th Cir. 1998)
(finding that the petitioners’ objective was not to review the merits of their proceeding, but
rather “to enforce their constitutional rights to due process in the context of those
proceedings”).
Here, Petitioner does not challenge the decision to commence removal proceedings
or any act to adjudicate or execute a removal order. 	Traverse at 2. 	Rather, Petitioner is
challenging his prolonged detention without a bond hearing. 	Id. at 3. 	Petitioner is
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, No. 25-CV-2180-DMS-MMP, 2025 WL 2549431, at *4 (S.D. Cal. Sept.
3, 2025). Therefore, § 1252(g) does not strip the Court of jurisdiction.
II. 	Merits
“Neither the Ninth Circuit nor the Supreme Court have provided guidance regarding
the point at which an immigration detainee’s prolonged mandatory detention becomes
unconstitutional.” Amado v. United States Dep’t of Just., No. 25CV2687-LL(DDL), 2025
WL 3079052, at *5 (S.D. Cal. Nov. 4, 2025). 	However, “[n]early all district courts that
have considered [the constitutionality of prolonged mandatory detention] agree that
prolonged mandatory detention pending removal proceedings, without a bond hearing,
will—at some point—violate the right to due process.” 	Singh v. Barr, 400 F. Supp. 3d
1005 (S.D. Cal. 2019) (internal quotation marks and citations omitted) (cleaned up)
(collecting cases). 	In determining whether detention has become unreasonable, courts
evaluate factors including “the total length of detention to date, the likely duration of future
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detention, and the delays in the removal proceedings caused by the petitioner and the
government.” Lopez v. Garland, 631 F. Supp. 3d 870, 879 (E.D. Cal. 2022). Some courts
also consider the conditions of detention and the likelihood that the removal proceedings
will result in a final order of removal. See, e.g., Sadeqi v. LaRose, No. 25-CV-2587-RSH-
BJW, 2025 WL 3154520, at *3 (S.D. Cal. Nov. 12, 2025).
The Court finds that Petitioner has established he is entitled to a bond hearing.
Petitioner’s length of detention without a bond hearing, nearing one year, weighs in
Petitioner’s favor. Courts have found detention of similar lengths without a bond hearing
weighs towards a finding that detention has become unreasonable. 	See, e.g., Sadeqi v.
LaRose, No. 25-CV-2587-RSH-BJW, 2025 WL 3154520, at *4 (S.D. Cal. Nov. 12, 2025)
(finding that eleven month detention without a bond hearing “absent meaningful rebuttal
by [r]espondents” was unreasonable and violated due process); Guatam v. Corr. Corp of
Am., No. 3:25-CV-3600-JES-DEB, 2026 WL 25846, at *4 (S.D. Cal. Jan. 5, 2026) (finding
that one-year detention weighed in favor of granting a bond hearing). 	The length of
detention therefore favors Petitioner.
As to the likely duration of future detention, Petitioner argues that “the outcome of
removal proceedings remains uncertain, and any decision may be appealed to the Board of
Immigration Appeals and potentially the Ninth Circuit,” which “may take years.” Traverse
at 6–7 (citations omitted). Respondents argue that after the schedule merits hearing, “the
path to release or removal should be clear.” 	Ret. at 9–10. 	The Court disagrees, as the
outcome of Petitioner’s merits proceedings is unknown, and any appeals to follow may
take several years. 	See Guatam, 2026 WL 25846, at *5 	(“[A] removal order may not
become final until after the appeals Petitioner could file, to both the Board of Immigration
Appeals and Ninth Circuit.”); Prabhpreet v. LaRose, No. 26-CV-393-JES-SBC, 2026 WL
310192, at *4 (S.D. Cal. Feb. 5, 2026) (“Petitioner has an upcoming hearing . . . but
Petitioner alleges that he has had other scheduled hearings that have been moved and there
is also no indication that this hearing will even result in a final decision in his removal
proceedings.”); Zarei v. LaRose, No. 26-CV-0308-GPC-MMP, 2026 WL 252585, at *5
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(S.D. Cal. Jan. 30, 2026) (finding that likely duration of future detention weighed in favor
of petitioner with upcoming merits hearing).
Delay in removal proceedings is neutral since the record, as presented to the Court,
does not indicate any delay by Respondents or Petitioner. 	See Rash v. LaRose, No.
26V0008-LL-DEB, 2026 WL 249324, at *5 (S.D. Cal. Jan. 30, 2026).
In balancing these factors and affording greater weight to the length of Petitioner’s
detention, the Court finds that Petitioner’s allegations establish that his detention is
unreasonably prolonged. 	See id. at *4 (“The total length of detention is considered the
most important factor.”) (citing Banda v. McAleenan, 385 F. Supp. 3d 1099, 1118 (W.D.
Wash. 2019)).
III. 	Attorney’s Fees
Petitioner’s counsel requests costs and attorney’s fees in this action pursuant to the
Equal Justice Act (“EAJA”), 28 U.S.C. § 2412. Pet. at 20. The EAJA provides in part:
A party seeking an award of fees and other expenses shall, within
thirty days of final judgment in the action, submit to the court an
application for fees and other expenses which shows that the
party is a prevailing party and is eligible to receive an award
under this subsection, and the amount sought, including an
itemized statement from any attorney . . . representing or
appearing in behalf of the party stating the actual time expended
and 	the 	rate 	at 	which 	fees 	and 	other 	expenses 	were
computed. The party shall also allege that the position of the
United States was not substantially justified. Whether or not the
position of the United States was substantially justified shall be
determined on the basis of the record . . . which is made in the
civil action for which fees and other expenses are sought.
28 U.S.C. § 2412(d)(1)(B).
The Court will consider an application requesting reasonable fees and costs under
the EAJA that is filed within thirty days of the judgment.
/ / /
/ / /
/ / /
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CONCLUSION
Based on the foregoing, the Court GRANTS Petitioner’s Petition for Writ of Habeas
Corpus 	(ECF 	No. 	1), 	and 	ORDERS 	Respondents 	to 	provide 	Petitioner 	with 	an
individualized bond hearing under 8 U.S.C. § 1226(a) within fourteen (14) days before a
neutral immigration judge in which the government bears the burden of establishing by
clear and convincing evidence that Petitioner is a danger to the community or a flight risk
if released. 	If no hearing occurs within fourteen days of this Order, Petitioner shall be
released from Respondents’ custody. The Parties SHALL FILE a Joint Status Report by
March 20, 2026, informing the Court of the outcome of the hearing. As this concludes the
litigation in this matter, the Clerk of the Court SHALL CLOSE the file.
The Court will consider an application requesting reasonable fees and costs under
the EAJA that is filed within thirty days of the judgment. Petitioner’s attorney is directed
to submit an attorney fee application and corresponding billing records within thirty (30)
days of this Order, and Respondents are instructed to file any opposition within fourteen
(14) days of Petitioner’s attorney fee application.
IT IS SO ORDERED.
Dated: February 27, 2026
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