Asanov v. Divver et al

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
KUMARBEK ASANOV,
Petitioner,
v.
PATRICK DIVVER, Field Office
Director of Enforcement and Removal
Operations, et al.,
Respondents.
Case No.: 26-CV-638 JLS (BLM)
ORDER GRANTING IN PART
PETITION FOR WRIT OF
HABEAS CORPUS
(ECF No. 1)
Presently before the Court is Kumarbek Asanov’s Petition for a Writ of Habeas
Corpus pursuant to 28 U.S.C. § 2241 (“Pet.,” ECF No. 1). 	Also before the Court is
Respondents’ Return to Petition for Writ of Habeas Corpus (“Ret.,” ECF No. 3). Petitioner
did not file a Traverse. 	See generally Docket. For the reasons set forth below, the Court
GRANTS in part the Petition for a Writ of Habeas Corpus.
BACKGROUND
Petitioner, a native and citizen of Kyrgyzstan, 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 October 22, 2024.
Pet. at 5. Fearing persecution in Iran on account of his sexual orientation, Petitioner crossed
the U.S. border from Mexico seeking asylum. 	Id. 	On March 20, 2025, an immigration
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judge granted his application for asylum. Id. at 6. On April 22, 2025, DHS filed a notice
of appeal. Id. On July 25, 2025, the Board of Immigration Appeals (“BIA”) put the appeal
on hold and requested that DHS report “whether the matter is in compliance with
background check requirements.” 	Id. 	DHS responded several times to this request, and
each time the BIA found the response insufficient. Id. The appeal is still pending. Id.
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
“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
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evaluate factors including “the total length of detention to date, the likely duration of future
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).1 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, now over one year, without a bond hearing 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., 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); 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). 	The length of
detention therefore favors Petitioner.
As to the likely duration of future detention, Petitioner was granted asylum in March
of 2025, and DHS’s appeal of that decision has been ongoing since July of 2025. Pet. at 6.
DHS has been asked to supplement its responses multiple times throughout the appeal, and
each time the BIA has found its responses insufficient. Id. The Court agrees that there is
no end in sight to Petitioner’s detention since Respondents “cannot predict with any degree
of confidence when the BIA appeal will be resolved.” Masood v. Barr, No. 19-CV-07623-
JD, 2020 WL 95633, at *3 (N.D. Cal. Jan. 8, 2020). Respondents argue only that Petitioner
1 Petitioner argues that the granting of asylum made Petitioner’s order of removal final and that Petitioner
is thus subject to an analysis under Zadvydas v. Davis, 533 U.S. 678 (2001). However, Respondents are
correct that no final order of removal has been entered due to the pending appeal. See Vlasov v. Bondi,
No. 25-cv-1342-AJB-MSB, 2025 WL 2258582, at *1 (S.D. Cal. Aug. 7, 2025) (finding the removal date
to be the withdrawal of an appeal of the immigration judge’s decision to withhold petitioner’s removal to
Russia under § 1231 due to a likelihood of political persecution).
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has already received a decision from the Immigration Judge, and the appeal is pending.
Ret. at 8. 	Respondents do not address the repeated delays due to DHS’s insufficient
responses or the fact that the appeal has been pending for over six months. Therefore, the
likely duration of future detention weighs in Petitioner’s favor.
Delay in removal proceedings also weighs in Petitioner’s favor due to the several
insufficient responses by DHS in the appeal. See Pet. at 6. Balancing the discussed factors,
the Court concludes that Petitioner’s detention has become unreasonably prolonged, and
therefore, Petitioner is entitled to a bond hearing.
I. 	Attorney’s Fees
Petitioner has requested costs and attorney’s fees in this action pursuant to the Equal
Access to Justice Act (“EAJA”), 28 U.S.C. § 2412. Pet. at 12. 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 IN PART Petitioner’s Petition for a
Writ of Habeas Corpus (ECF No. 1), and ORDERS Respondents to provide Petitioner with
an individualized bond hearing 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 10, 2026,
informing the Court of the outcome of the hearing.
Lastly, 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 18, 2026
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