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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
SAEID ZAREI,
Petitioner,
v.
CHRISTOPHER LAROSE, Warden of
Otay Mesa Detention Center; et al.,
Respondents.
Case No.: 26-cv-0308-GPC-MMP
ORDER GRANTING IN PART
PETITION FOR WRIT OF HABEAS
CORPUS
[ECF No. 1]
On January 18, 2026, Petitioner filed a Petition for Writ of Habeas Corpus pursuant
to 28 U.S.C. § 2241. ECF No. 1 (“Pet.”). On January 26, 2026, Respondents filed a return
to the petition. ECF No. 4 (“Ret.”). For the following reasons, the Court GRANTS IN
PART the petition for writ of habeas corpus.
I. 	BACKGROUND
a. Factual Background
Petitioner is a native and citizen of Iran. Pet. ¶ 18. In Iran, conversion from Islam
constitutes a crime of apostasy and can potentially be punishable by death. Id. Though
Petitioner was born into a Muslim, Petitioner secretly converted to Christianity and
participated in underground Christian worship. Id. After Petitioner’s conversion was
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disclosed to Iranian authorities, Petitioner was detained and tortured. Id. 	Upon release,
Petitioner fled Iran fearing execution. Id. ¶ 19.
Petitioner entered the United States on March 27, 2025, and was immediately taken
into custody by U.S. Customs and Border Protection (“CBP”). Id; Ret., Ex. 1. Once in
custody, Petitioner expressed a fear of return and his intent to seek asylum. Pet. ¶ 19.
Despite this expression of fear, Petitioner was not promptly afforded a credible fear
interview nor placed into removal proceedings. Id. Instead, over approximately seven
months, Petitioner was transferred among multiple immigration detention facilities across
several states, including California, Arizona, Louisiana, and Mississippi. Id. During this
period, no Notice to Appear (“NTA”) was issued, and no removal proceedings were
initiated. Id.
In October 2025, after being transferred back to the Otay Mesa Detention Center in
San Diego, Petitioner receiver a credible fear interview, which resulted in a positive
determination. Id. DHS issued an NTA on October 19, 2025, initiating 240 removal
proceedings. Id; Ret., Ex. 3.
Petitioner has since appeared at two master calendar hearings, on October 30, 2025,
and December 19, 2025. Pet. ¶ 20. At the December hearing, the Immigration Judge (“IJ”)
set Petitioner’s individual hearing to adjudicate his asylum application for May 11, 2026.
Id., Ex. B. Petitioner expects his case will require multiple hearing dates, and based on the
Immigration Court’s calendar, Petitioner estimates that his proceedings may not conclude
until mid-2027. Id. ¶ 21.
As of the filing of the Petition, Petitioner has been detained for approximately ten
months, with no final order of removal. Pet. ¶ 22. Petitioner remains detained at the Otay
Mesa Detention Center. Id. ¶ 4.
/ / /
/ / /
/ / /
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b. Procedural Background
On January 18, 2026, Petitioner filed a Petition for Writ of Habeas Corpus
pursuant to 28 U.S.C. § 2241. ECF No. 1 (“Pet”). On January 26, 2026, Respondent filed
a Response to Petition for Writ of Habeas Corpus. ECF No. 4 (“Ret”).
Petitioner challenges the legality of his continued immigration detention by DHS
and its component agencies, asserting that his detention violates the Due Process Clause
of the Fifth Amendment. Pet. ¶ 29.
As relief, Petitioner requests that the Court issue a writ of habeas corpus ordering
his immediate release from custody. Pet. at 15. In the alternative, Petitioner asks the
Court to order Respondents to provide a prompt and individualized bond hearing. Pet. at
16.
II. 	LEGAL STANDARD
Under 28 U.S.C. § 2241, a writ of habeas corpus may be granted to any petitioner
who demonstrates that he is “in custody in violation of the Constitution or laws or treaties
of the United States.” 28 U.S.C. § 2241(c)(3); see Rasul v. Bush, 542 U.S. 466, 473 (2004).
As explained by the Supreme Court, “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);
Pinson v. Carvajal, 69 F.4th 1059, 1067 (9th Cir. 2023) (habeas actions limited to
challenges of the legality or duration of confinement).
A prisoner bears the burden of demonstrating that “[h]e is in custody in violation of
the Constitution or laws or treaties of the United States.” See Espinoza v. Sabol, 558 F.3d
83, 89 (1st Cir. 2009).
III. 	DISCUSSION
a. Jurisdiction
Petitioner invokes this Court’s jurisdiction under the habeas provision, 28 U.S.C. §
2241, the Suspension Clause, federal question, 28 U.S.C. § 1331, and the APA, 5 U.S.C. §
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701-706. Pet. ¶ 15. Respondents maintain that this Court lacks jurisdiction over Petitioner’s
claims, stating that the claims and relief are barred by 8 U.S.C. § 1252(g). Ret. at 1.
8 U.S.C. § 1252(g) states that, with limited exceptions, “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.” 8 U.S.C. § 1252(g) (emphasis added); Reno v. Am.-Arab
Anti-Discrimination Comm., 525 U.S. 471, 482 (1999). In that light, § 1252(g) is a narrow
statutory provision that concentrates on those three discrete actions. Reno, 525 U.S. at 482.
Respondents argue that the § 1252(g) bar applies because Petitioner’s claims arise
“from 	the 	Department 	of 	Homeland 	Security’s 	decision 	to 	commence 	removal
proceedings against him.” Ret. at 3. Specifically, the government’s decision “unavoidably
triggers mandatory detention under 8 U.S.C. § 1225(b)(1)(B)(ii) until the conclusion of
his removal proceedings.” Id. However, rather than challenging the decision to commence
proceedings, Petitioner challenges the legality of his detainment, specifically objecting to
the prolonged length of detention. Detainment of Petitioner does not fall within the three
discrete actions identified in § 1252(g) and, thus, would not deprive the Court’s
jurisdiction. See, e.g., Aditya W. H. v. Trump, 782 F. Supp. 3d 691, 704 (D. Minn. 2025)
(finding a claim against detention did not fall under Section 1252(g)); Mahdawi v. Trump,
781 F. Supp. 3d 214, 224-26 (D. Vt. 2025) (same); Deng Chol A. v. Barr, 455 F. Supp. 3d
896, 901 (D. Minn. 2020) (“Although the court may not review discretionary decisions
made by immigration authorities, it may review immigration-related detentions to
determine if they comport with the demands of the Constitution.”).
b. Merits
Petitioner claims that his detention violates the Fifth Amendment’s Due Process
Clause. Pet. ¶¶ 37-48. Respondents, in turn, maintain that Petitioner is mandatorily
detained under 8 U.S.C. § 1225(b)(1) and has not been subjected to unconstitutionally
prolonged detention. Ret. at 4-9.
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i. 	Detainment Under the INA
Section 1225(b)(1) states that “[i]f an immigration officer determines that an
alien…who is arriving in the United States or is described in clause (iii) is inadmissible
under section 1182(a)(6)(C) or 1182(a)(7)…and the alien indicates either an intention to
apply for asylum…or a fear of persecution, the officer shall refer the alien for an interview
by an asylum officer under.” 8 U.S.C. § 1225(b)(1)(A)(ii). Once the noncitizen has been
referred for an interview, “[i]f the [asylum] officer determines at the time of the interview
that an alien has a credible fear of persecution…the alien shall be detained for further
consideration of the application for asylum.” 8 U.S.C. § 1225(b)(1)(B)(ii). Thus Section
1225(b)(1) “mandate[s] detention of applicants for admission until certain proceedings
have concluded.” Jennings v. Rodriguez, 583 U.S. 281, 297 (2018). Until the noncitizen’s
asylum application has been fully considered, “nothing in the statutory text imposes any
limit on the length of detention…[or] says anything whatsoever about bond hearings.” Id.
Here, Petitioner is a noncitizen and an applicant for admission. See 8 U.S.C. §
1225(a)(1). An immigration officer determined Petitioner was inadmissible under 8 U.S.C.
§ 1182(a)(7)(A)(i)(I). Ret. at 2. Petitioner, however, indicated a fear of persecution, was
given an interview, and received a positive determination. Pet. ¶ 19; Ret. at 2. These facts
indicate that Petitioner falls within the purview of Section 1225(b)(1).
Thus, Petitioner is lawfully detained under Section 1225(b)(1).
ii. 	Prolonged Detention
1. Entitlement to Due Process Claim
While Petitioner is mandatorily detained under Section 1225(b)(1), he has raised a
due process claim, arguing that his detention has exceeded a reasonable duration under
the Fifth Amendment, particularly in light of the absence of a final order of removal and
the anticipated length of his ongoing removal proceedings. Pet. ¶¶ 40, 45. Petitioner
contends that continued detention no longer serves a legitimate governmental purpose
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and that procedural due process requires, at minimum, an individualized custody
determination. Id.
Respondents 	respond, 	relying 	on 	Thuraissigiam, 	that 	inadmissible 	arriving
noncitizens have no due process rights other than those afforded by statute. Ret. at 6-9.
In Thuraissigiam, the respondent was a noncitizen detained close to the border and
shortly after unlawful entry. Dep't of Homeland Sec. v. Thuraissigiam, 591 U.S. 103, 140
(2020). The Supreme Court held that those “in respondent's position ha[ve] only those
rights regarding admission that Congress has provided by statute.” Ret. at 6-7.
Since 	Thuraissigiam 	was 	decided, 	district 	courts 	have 	taken 	two 	different
approaches. In one, district courts have dismissed or denied habeas petitions that raise due
process challenges, which go beyond statutory procedures and protections. See, e.g.,
Petgrave v. Aleman, 529 F. Supp. 3d 665, 669 (S.D. Tex. 2021) (“As far as Petitioner is
concerned, whatever procedure Congress has authorized is sufficient due process.”);
Gonzales Garcia v. Rosen, 513 F. Supp. 3d 329, 336 (W.D.N.Y. 2021) (“Petitioner is on
the threshold of initial entry into the United States and [ ] he accordingly is not entitled to
procedural 	protections 	beyond 	those 	provided 	by 	statute.”); 	Zelaya-Gonzalez 	v.
Matuszewski, No. 23-CV-151-JLS-KSC, 2023 WL 3103811, at *4 (S.D. Cal. Apr. 25,
2023) (“Binding Ninth Circuit and Supreme Court precedents are clear that Petitioner lacks
any rights beyond those conferred by statute, and no statute entitles Petitioner to a bond
hearing.”); 	Mendoza-Linares 	v. 	Garland, 	No. 	21-CV-1169-BEN-AHG, 	2024 	WL
3316306, at *2 (S.D. Cal. June 10, 2024) (same).
However, a majority of courts have opted for an alternative, as-applied approach.
Specifically, while facial challenges to mandatory detention have been rejected, see
Demore v. Kim, 538 U.S. 510, 530-31 (2003), nothing has been said “about whether due
process may eventually require a hearing.” Black v. Decker, 103 F.4th 133, 149 (2d Cir.
2024) (emphasis in original). This is also true for Thuraissigiam. Though Thuraissigiam
limits an arriving noncitizen’s due process rights in regard to admission, the court did not
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address the issue of prolonged detention. See Padilla v. U.S. Immigr. & Customs Enf't, 704
F. Supp. 3d 1163, 1171 (W.D. Wash. 2023) (“Thuraissigiam’s discussion of due process
is necessarily constrained to challenges to admissibility to the United States. This was the
sole claim presented and the respondent expressly asked for a chance to reapply for asylum
and admission.”).
Additionally, 	“the 	Supreme 	Court 	has…explicitly 	stated 	that 	as-applied
constitutional challenges to 8 U.S.C. § 1226(c)[, which cover mandatory detention under
that statute,] are not foreclosed.” Abdul-Samed v. Warden of Golden State Annex Det.
Facility, No. 1:25-CV-00098-SAB-HC, 2025 WL 2099343, at *5 (E.D. Cal. July 25, 2025).
While the Ninth Circuit has not ruled on whether due process requires a bond hearing for
noncitizens mandatorily detained, the First, Second, and Third Circuits have held that “the
Due Process Clause imposes some form of ‘reasonableness’ limitation upon the duration
of detention ... under [section 1226(c)].” Reid v. Donelan, 17 F.4th 1, 7 (1st Cir. 2021)
(alterations in original) (citation omitted); see Black, 103 F.4th at 138; German Santos v.
Warden Pike Cnty. Corr. Facility, 965 F.3d 203, 209-10 (3d Cir. 2020). Though § 1225(b)
was not specifically addressed by the Supreme Court or the three Circuit courts, § 1225(b)
contains similar mandatory detention provisions to § 1226(c). Thus, the reasoning
underlying this as-applied approach would logically apply to detention under § 1225(b).
Given this background, a majority of district courts have found prolonged detention
under § 1225(b) without a bond hearing can eventually give rise to due process issues. See,
e.g., Sadeqi v. LaRose, No. 25-CV-2587-RSH-BJW, 2025 WL 3154520, at *2 (S.D. Cal.
Nov. 12, 2025) (“This Court agrees with the majority position that a petitioner detained
under Section 1225(b)(1) may assert a due process challenge to prolonged mandatory
detention without a bond hearing.”); Abdul-Samed v. Warden of Golden State Annex Det.
Facility, No. 25-cv-98-SAB-HC, 2025 WL 2099343, at *6 (E.D. Cal. July 25, 2025)
(“Although the Ninth Circuit has yet to take a position on whether due process requires a
bond hearing for noncitizens detained under 8 U.S.C. § 1225(b)…‘essentially all district
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courts that have considered the issue agree that prolonged mandatory detention pending
removal proceedings, without a bond hearing, will—at some point—violate the right to
due process.’”) (quoting Martinez v. Clark, No. C18-1669-RAJ-MAT, 2019 WL 5968089,
at *6 (W.D. Wash. May 23, 2019)); 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 individualized
bond hearing violates due process.”); Banda v. McAleenan, 385 F. Supp. 3d 1099, 1116
(W.D. Wash. 2019) (collecting cases); A.L. v. Oddo, 761 F. Supp. 3d 822, 825 (W.D. Pa.
2025) (“Nowhere in [Thuraissigiam] did the Supreme Court suggest that arriving aliens
being held under § 1225(b) may be held indefinitely and unreasonably with no due process
implications, nor that such aliens have no due process rights whatsoever.”).
The Court agrees with the majority. While 	Thuraissigiam 	limits an arriving
noncitizen’s due process rights in regard to admission, a petitioner may still assert a due
process claim against prolonged mandatory detention without a bond hearing.
2. Violation of Due Process
To determine whether a petitioner’s detention has been unreasonably prolonged, the
Court applies the Banda v. McAleenan’s six-factor analysis as a framework, which weighs:
(1) total length of detention to date; (2) likely duration of future detention; (3) conditions
of detention; (4) delays in the removal proceedings caused by the detainee; (5) delays in
the 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 (W.D. Wash. 2019).1
1 Respondent offers a similar three-factor balancing test from Lopez v. Garland, 631 F.
Supp. 3d 870, 879 (E.D. Cal. 2022). Given that all factors considered in the Lopez test are
encapsulated in the Banda framework, the Court shall apply the more comprehensive
Banda framework.
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Total Length of Detention to Date. Petitioner has been detained for approximately
ten months. Pet. ¶ 45; Ret. At 8. Petitioner argues that this detention is, thus, prolonged,
as detention exceeding six months is presumptively unreasonable. 	Id. Respondents,
however, maintain that Petitioner’s current detention “does not fall within the range [that]
those courts have found to be unreasonable.” Ret. at 9. In Respondents’ view, detention
should be for a much longer period to be unreasonably prolonged. Id.
While 	close 	to 	ten 	months 	of 	detention 	does 	not 	presumptively 	establish
unreasonably prolonged detention, it is also not so little time as to preclude constitutional
scrutiny. See Sadeqi v. LaRose, No. 25-CV-2587-RSH-BJW, 2025 WL 3154520, at *3
(S.D. Cal. Nov. 12, 2025) (“The Court agrees with Respondents that the length of
Petitioner's detention to date—almost 12 months—does not by itself, without more,
establish prolonged detention in violation of due process. But neither does that length of
detention serve as a safe harbor or insulate Petitioner's case from constitutional review.”).
Additionally, courts have previously found that similar or shorter lengths of detention were
unreasonable. See, e.g., Gao v. LaRose, No. 25-CV-2084-RSH-SBC, 2025 WL 2770633,
at *5 (S.D. Cal. Sept. 26, 2025) (“The Court finds that Petitioner's detention for over 10
months without a bond hearing, in the context of the specific circumstances described
above, has become unreasonable and violates due process.”); Amado v. United States Dep't
of Just., No. 25-CV-2687-LL-DDL, 2025 WL 3079052, at *6 (S.D. Cal. Nov. 4, 2025)
(“Courts have found detention over seven months without a bond hearing weighs toward a
finding that it is unreasonable.”); Masood v. Barr, No. 19-CV-07623-JD, 2020 WL 95633,
at *3 (N.D. Cal. Jan. 8, 2020) (finding detention for nearly nine months weighs in favor of
the petitioner).
Thus, this factor weighs in favor of Petitioner, though it is not determinative alone.
Likely Duration of Future Detention. The second factor requires consideration of
“how long the detention is likely to continue absent judicial intervention; in other words,
the ‘anticipated duration of all removal proceedings—including administrative and judicial
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appeals.’” Banda v. McAleenan, 385 F. Supp. 3d 1099, 1119 (W.D. Wash. 2019) (quoting
Jamal A. v. Whitaker, 358 F. Supp. 3d 853, 859 (D. Minn. 2019)).
Here, 	Petitioner’s 	individual 	hearing 	to 	adjudicate 	his 	asylum 	application 	is
scheduled for May 11, 2026. Pet. ¶ 20. However, given the anticipated need for multiple
hearing dates, Petitioner has estimated his proceedings are likely to end in July 2027. Pet.
¶ 21. “While the Court cannot definitively determine the duration of petitioner's future
detention, based on the current record, it appears likely petitioner will face many more
months and potentially years in detention,” especially if there is a petition for review before
the Court of Appeals. Belqasim v. Bostock, No. 2:25-CV-01282-LK-TLF, 2025 WL
3466971, at *9 (W.D. Wash. Oct. 28, 2025), report and recommendation adopted sub
nom. Belqasim v. Hermosillo, No. 2:25-CV-01282-LK, 2025 WL 3170929 (W.D. Wash.
Nov. 13, 2025); Guatam v. Corr. Corp. of Am., No. 3:25-CV-3600-JES-DEB, 2026 WL
25846, at *5 (S.D. Cal. Jan. 5, 2026) (“[A] removal order may not become final until after
the appeals Petitioner could file, to both the Board of Immigration Appeals and Ninth
Circuit…These appeals can take a long time.”); Abdul-Samed v. Warden of Golden State
Annex Det. Facility, No. 1:25-CV-00098-SAB-HC, 2025 WL 2099343, at *7 (E.D. Cal.
July 25, 2025) (“Although the Court recognizes that future events are difficult to predict,
the Court nevertheless finds that in the event Petitioner's applications for relief from
removal are denied, Petitioner's possible administrative appeal and judicial review by the
Ninth Circuit will be sufficiently lengthy such that this factor weighs in favor of
Petitioner.”).
Thus, the Court finds this factor falls in favor of Petitioner.
Conditions of Detention. For the third 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.” Banda, 385 F. Supp. 3d at 1119 (citation omitted).
Courts have recognized that the conditions at the Otay Mesa Detention Center are
“indistinguishable from penal confinement.” See Kydyrali v. Wolf, 499 F. Supp. 3d 768,
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773 (S.D. Cal. 2020); Amado v. United States Dep't of Just., No. 25-CV-2687-LL-DDL,
2025 WL 3079052, at *6 (S.D. Cal. Nov. 4, 2025). Thus, this factor weighs in favor of
Petitioner.
Delays in Removal. The fourth and fifth factors concern delays in the removal
proceedings caused by Petitioner or the government. In terms of the fourth factor, neither
party has indicated Petitioner caused any undue delays. Accordingly, this factor is neutral.
As 	for 	the 	fifth 	factor, 	Petitioner 	maintains 	that 	Respondents’ 	actions 	have
contributed significantly to the delay in Petitioner’s proceedings. Pet. ¶¶ 26-28. Petitioner
claims that his credible fear interview—and thus the initiation of his 240 proceedings—
was delayed by seven months from his initial detainment. Pet. ¶ 19. This delay weighs in
favor of Petitioner.
In sum, the fourth factor remains neutral, and the fifth factor weighs in favor of
Petitioner.
Likelihood of Final Removal Order. For the sixth Banda factor, the Court
evaluates the likelihood that the removal proceedings will result in a final order of removal,
or “[i]n other words, the Court considers whether the noncitizen has asserted any defenses
to removal.” Banda, 385 F. Supp. 3d at 1120. Here, Petitioner claims he has been
persecuted by the Iranian authorities due to his conversion to Christianity and secret
attendance of church services. Pet. ¶ 18. Based upon this persecution, Respondent has
determined that Petitioner’s fears are credible. Id. ¶ 19. Petitioner will now have the
opportunity to present evidence supporting his asylum claims. While it remains unclear
how an IJ will eventually rule, Petitioner has so far presented a defense which reduces the
likelihood of a final removal order. Thus, the Court finds this factor slightly favors
Petitioner.
Weighing the Factors. In sum, at least five of the six factors weigh in favor
Petitioner, with the other factor being neutral. Accordingly, the Court concludes that
Petitioner’s detention has become unreasonably prolonged. Thus, Petitioner is entitled to a
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prompt and individualized bond hearing, where Respondents must justify Petitioner’s
continued detention “by a showing of clear and convincing evidence that Petitioner would
likely flee or pose a danger to the community if released.” Sadeqi v. LaRose, No. 25-CV-
2587-RSH-BJW, 2025 WL 3154520, at *4 (S.D. Cal. Nov. 12, 2025); Abdul-Samed v.
Warden of Golden State Annex Det. Facility, No. 1:25-CV-00098-SAB-HC, 2025 WL
2099343, at *9 (E.D. Cal. July 25, 2025); Toktosunov v. Wamsley, No. 2:25-CV-1724-TL,
2025 WL 3492858, at *6 (W.D. Wash. Dec. 5, 2025).
IV. 	CONCLUSION
Based on the reasoning above, the Court GRANTS IN PART the petition for writ
of habeas corpus pursuant to 28 U.S.C. § 2241.
In his petition, Petitioner requests release, or in the alternative, a bond hearing before
an 	immigration 	judge. 	Pet. 	at 	16. 	“The 	Court 	finds, 	consistent 	with 	other 	post-
Jennings cases, that the appropriate remedy is a bond hearing before an immigration
judge[.]” Lopez v. Garland, 631 F. Supp. 3d 870, 882 (E.D. Cal. 2022); Abdul-Samed, 2025
WL 2099343, at *9. If Respondents fail to comply with this order, Petitioner may seek
further relief from the Court at that time.
Accordingly, the Court ORDERS Respondents to provide Petitioner with a bond
hearing within seven (7) days of this Order. Respondents are ORDERED to FILE a Notice
of Compliance within ten days of providing Petitioner with a bond hearing. The Clerk of
Court 	SHALL 	enter judgment in Petitioner's favor and close this case. The Court
VACATES the hearing set for February 6, 2026.
IT IS SO ORDERED.
Dated: January 30, 2026
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