Pascual-Francisco et al v. Director of the San Diego Field Office of the Enforcement and Removal Office of the Immigration & Customs Enforcement et al

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
MATEO 	PASCUAL-FRANCISCO, 	also
known as Mateo Hernandez-Gomez, also
known as Mateo Hernandez-Martinez,
Petitioner,
v.
WARDEN OTAY MESA DETENTION
FACILITY, et al.,
Respondents.
Case No.: 3:26-cv-00213-RBM-VET
ORDER GRANTING PETITION
FOR WRIT OF HABEAS CORPUS
[Doc. 1]
Pending before the Court are Petitioner Mateo Pascual-Francisco’s (“Petitioner”)
Petition for Writ of Habeas Corpus (“Petition”) pursuant to 28 U.S.C. § 2241. 	(Doc. 1.)
Petitioner claims he is being detained in violation of his statutory and regulatory rights and
the Fifth Amendment’s Due Process Clause. 	(Id. ¶¶ 54–61.) 	For the reasons set forth
below, the Petition is GRANTED.
I. 	BACKGROUND
Petitioner, a citizen of Guatemala, entered the United States on or around July 1,
2006. (Doc. 4 at 2.) On September 5, 2008, Petitioner was arrested for driving under the
influence “for which he was sentenced to probation and seven days confinement.” (Doc.
4 at 1; Doc. 1 ¶ 17;.) 	He was transferred to Immigration and Customs Enforcement’s
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(“ICE”) custody pursuant to an immigration detainer on September 11, 2008. (Doc. 4 at
1.) “Petitioner admitted to removability and was granted a voluntary removal to Mexico
that same day.” 	(Id.) 	“On May 11, 2011, Petitioner was the passenger of a vehicle that
was stopped by local law enforcement officials.” (Id.) Petitioner admitted he was in the
United States unlawfully and was granted a voluntary return to Mexico that same day. (Id.)
“On November 16, 2011, Petitioner was taken into ICE custody and ordered removed under
expedited removal proceedings.” 	(Id.) 	He was subsequently removed on November 19,
2011. 	(Id.) 	“He last reentered the United States without inspection (after a previous
removal) on or about December 15, 2011.” (Doc. 1 ¶ 13.)
On July 7, 2016, Petitioner was arrested for driving under the influence and causing
injury. (Id.; Doc. 1 ¶ 17.) He was taken into ICE custody on July 20, 2016. (Doc. 4 at 2–
3) 	While in ICE custody, Petitioner admitted to having unlawfully entered the United
States on December 15, 2011. (Id. at 3.) ICE reinstated Petitioner’s prior removal order
that same day. (Id..) Consequently, Petitioner was ordered removed as a noncitizen “who
has been ordered removed and who enters or attempts to reenter the United States without
being admitted or paroled.” (Id.) Petitioner was provided with a reasonable fear interview
and an asylum officer made a positive reasonable fear finding. (Id.) “Petitioner was then
placed in withholding only proceedings.” (Id.) On May 12, 2017, an immigration judge
(“IJ”) granted Petitioner withholding of removal to Guatemala. 	(Id.; Doc. 1 ¶ 18.)
Petitioner was released from custody pursuant to an Order of Supervision on May 24, 2017.
(Doc. 4 at 3.)
“On December 12, 2025, Petitioner was re-detained by ICE.” (Id..) “On that date,
Petitioner was provided a notice of revocation of release and an informal interview.” (Id.;
see Doc. 4-2 at 13–16.) 	Prior to his re-detention, Petitioner “appeared at all of his ICE
check-ins.” (Doc. 1 ¶ 36.)
Petitioner filed the instant Petition on January 14, 2026. (Doc. 1.) Pursuant to this
Court’s Order (see Doc. 2), Respondents filed the Response on January 23, 2026. (Doc.
4.) On January 28, 2026, Petitioner filed a Reply. (Doc. 5.)
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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 argues that his continued detention and anticipated removal to a third-
country violate the Fifth Amendment’s Due Process Clause. 	(Doc. 1 ¶¶ 39–50, 54–61.)
Respondents argue that: (1) ICE “may remove Petitioner to a third country that will accept
Petitioner’s removal” because removal to other countries is “impracticable, inadvisable, or
impossible”; (2) “it would be premature to conclude that there is no significant likelihood
of removal in the reasonably foreseeable future”; and (3) “Petitioner’s concern that he will
not receive adequate notice and an opportunity to be heard prior to his third country
removal is not borne out by the evidence in this case.” (Doc. 4 at 5–6.)
The Court has consistently rejected the same arguments in response to habeas
petitions filed by similarly situated petitioners. For example, in Azzo v. Noem, the Court
held that Respondents: (1) failed to satisfy their burden under Zadvydas; and (2) must
provide Petitioner with adequate notice and an opportunity to be heard before removing
him to a third country. 	Case No.: 3:25-cv-03122-RBM-BJW, 2025 WL 3535208, at *2
(S.D. Cal. Dec. 10, 2025). 	As to the Zadvydas claim, the Court found the petitioner
adequately demonstrated there was “good reason to believe that there is no significant
likelihood of removal in the reasonably foreseeable future” because ICE had been unable
to deport him or “even identify a third country to deport him to.” 	Id. at *3 (citation
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omitted). The respondents also failed to sufficiently rebut the petitioner’s showing under
Zadvydas because they had “not even identified a third country to which they plan to
remove [the petitioner], much less submitted a travel document or provided an estimate for
how long it would take this unidentified third country to respond.” 	Id. at *4. The Court
also rejected the respondents’ argument concerning third country removal “[b]ecause [the
respondents]actively [sought] to remove [the petitioner] to a third country.” Id. at *6.
Like in Azzo, Petitioner’s current detention is no longer presumptively reasonable
because he was detained for over ten months between July 20, 2016 and May 24, 2017.
(See Doc. 4 at 2–3 (citing Doc. 4-1, Declaration of Denise E. Barroga [“Barroga Decl.”]
¶¶ 10, 14).) Petitioner has also met his initial burden under Zadvyvas to show good reason
to believe there is no significant likelihood of removal in the reasonably foreseeable future.
Specifically, Petitioner has established that he was granted withholding of removal to
Guatemala and that Respondents have not identified a country that will accept Petitioner
for removal since his release nearly 9 years ago. (Doc. 1 ¶ 45; see Doc. 5 at 6, 9.) To rebut
this showing, Respondents, as in Azzo, claim “ICE has worked expeditiously to effectuate
his resettlement in a third country.” (Doc. 4 at 5.)
The Court therefore adopts its reasoning in Azzo and applies it here. For those same
reasons, Petitioner’s continued detention is no longer reasonable or authorized by statute
and is therefore unlawful. 	Because Respondents have yet to identify a possible third
country for Petitioner’s removal and “‘offered little more than generalizations regarding
the likelihood that removal will occur,’ . . . the Court finds that they have not met their
burden to ‘respond with evidence sufficient to rebut’ Petitioner’s showing.” 	Azzo, 2025
WL 3535208, at *4 (quoting Kamyab v. Bondi, Case No. C25-389RSL, 2025 WL 2917522,
at *4 (W.D. Wash. Oct. 14, 2025)); see also Ndandu v. Noem, No. 3:25-CV-02939-RBM-
MSB, 2026 WL 25848, at *6 (S.D. Cal. Jan. 5, 2026) (finding ICE’s “good faith” efforts
to secure a travel document, without more, do not render detention reasonable).
Additionally, because Respondents actively seek to remove Petitioner to a third
country (see Barrios Decl. ¶¶ 16–18), the Court finds Respondents’ argument concerning
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Petitioner’s third-country removal claim unavailing. The Court also adopts its reasoning
in Azzo concerning the third country removal claim and reaches the same conclusion:
Petitioner must be provided adequate notice and an opportunity to be heard before being
removed to a third country. See Azzo, 2025 WL 3535208, at *7–8 (adopting reasoning and
conclusion in Esmail v. Noem, Case No. 2:25-cv-08325-WLH-RAO, 2025 WL 3030589,
at *6–7 (C.D. Cal. Sept. 26, 2025)); see also G.A.A. v. Chestnut, Case No. 1:25-cv-01102-
EPG-HC, 2025 WL 3251316, at *7 (E.D. Cal. Nov. 21, 2025) (“Despite [respondents’]
assurances,” there is still “a sufficiently imminent risk that Petitioner will be subjected to
improper process in relation to any third country removal”).
IV. 	CONCLUSION
Based on the foregoing reasons, the Petition (Doc. 1) is GRANTED. Accordingly:
1. Respondents are ORDERED to immediately release Petitioner from custody,
subject to his preexisting Order of Supervision.
2. Respondents and their officers, agents, employees, attorneys, and persons acting
on their behalf or in concert with them are PROHIBITED from removing
Petitioner to a third country without notice and a meaningful opportunity to be
heard, following the process laid out in D.V.D. v. United States Dep’t of
Homeland Sec., Civil Action No. 25-10676-BEM, 2025 WL 1453640 (D. Mass.
May 21, 2025).1
IT IS SO ORDERED.
DATE: February 17, 2026
___________________________________
HON. RUTH BERMUDEZ MONTENEGRO
UNITED STATES DISTRICT JUDGE
1 This relief has been granted in similar matters. See Louangmilith v. Noem, — F. Supp.
3d —, 2025 WL 2881578, at *4 (S.D. Cal. Oct. 9, 2025); Kumar v. Wamsley, CASE NO.
C25-2055-KKE, 2025 WL 3204724, at *9 (W.D. Wash. Nov. 17, 2025).
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