Case Name in Immigration Case - Unavailable

1 26-cv-1252-AGS-DEB
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
Mamadou Samba TOUNKARA,
Petitioner,
v.
Jeremy CASEY, et al.,
Respondents.
Case No.: 26-cv-1306-AGS-DDL
ORDER REQUIRING RETURN
Petitioner Mamadou Samba Tounkara seeks a writ of habeas corpus under 28 U.S.C.
§ 2241 to free him from immigration detention. At this stage, he need only make out a
claim that is sufficiently cognizable to warrant an answer or return. See Rules Governing
Section 2254 Cases in the United States District Courts, Rule 4 (authorizing summary
dismissal “if it plainly appears from the petition and any attached exhibits that the petitioner
is not entitled to relief”); id., Rule 1(b) (permitting application of Rules Governing Section
2254 Cases to any “habeas corpus petition”). In this context, the relevant federal rules
permit “summary dismissal of claims that are clearly not cognizable.” Neiss v. Bludworth,
114 F.4th 1038, 1045 (9th Cir. 2024) (cleaned up). But “as long as a petition has any
potential merit, it is not so frivolous or incredible as to justify summary dismissal[.]” Id.
On 	“December 	25, 	2023,” 	Tounkara, 	a 	“citizen 	of 	Guinea,” 	“entered 	the
United States without inspection.” (ECF 1, at 2.) He was “apprehended,” “taken into
custody,” held for four days, and then “released [] on his own recognizance.” (Id.) Almost
two years later, on “October 3, 2025,” while he was “appear[ing] for a scheduled
immigration hearing,” he “was apprehended” by respondents. (Id. at 3.) He is still in
custody and challenges the government’s decision to subject him to “mandatory detention
under 8 U.S.C. § 1225(b)(2),” which applies to arriving aliens. (See id.) He asserts that his
case is instead “governed by . . . 8 U.S.C. § 1226(a)”—which authorizes release on bond
or conditional parole. (Id.)
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This challenge merits a response. The two Courts of Appeals to address this question
disagreed about how to interpret the issue. Compare Castañon-Nava v. United States Dep’t
of Homeland Sec., 161 F.4th 1048, 1060, 1062 (7th Cir. 2025) (concluding “on this
preliminary [motion-to-stay] record” that plaintiffs who are “unlawfully already in the
United States” are not “subject to mandatory detention under § 1225(b)(2)(A)”), with
Buenrostro-Mendez v. Bondi, No. 25-20496, __ F.4th ___, 2026 WL 323330, at *1
(5th Cir. Feb. 6, 2026) (holding that, under § 1225(b)(2)(A), petitioners who entered the
United States “illegally many years ago” must “be detained” without a bond hearing). But
most petitioners have nonetheless obtained habeas relief in functionally identical cases.
See, e.g., Barco Mercado v. Francis, ___ F. Supp. 3d. ___, No. 25-cv-6582 (LAK),
2025 WL 3295903, at *4 (S.D.N.Y. Nov. 26, 2025) (noting that, in “350” of the “362”
opinions to address this issue, the petitioners “prevailed, either on a preliminary or final
basis,” and these cases were “decided by over 160 different judges sitting in about fifty
different courts”). And a district court recently “vacate[d]” the Board of Immigration
Appeals decision that respondents have regularly relied on to mandatorily detain those in
petitioner’s position, holding that the BIA decision was “contrary to law” under the
Administrative Procedure Act. 	Bautista v. Santacruz, No. 5:25-cv-01873-SSS-BFM,
__ F. Supp. 3d __, 2026 WL 468284, at *12 (C.D. Cal. Feb. 18, 2026).
In addition, respondents have routinely conceded these claims when brought by
those—like petitioner—who seem to be members of the Bond Eligible Class certified in
that same case. See Bautista v. Santacruz, No. 5:25-cv-01873-SSS-BFM, 2025 WL
3713987, at *32 (C.D. Cal. Dec. 18, 2025). So, by Friday, March 6, 2026, the government
is ordered to file a brief stating whether it: (1) agrees petitioner is detained under 8 U.S.C.
§ 1226 and (2) intends to concede petitioner’s right to a bond hearing under that authority.
If respondents do not concede, they must answer the petition by March 10, 2026.
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Dated: March 3, 2026
___________________________
Hon. Andrew G. Schopler
United States District Judge
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