Case Name in Immigration Case - Unavailable

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
RAM GURUNG,
Petitioner,
v.
CHRISTOPHER LAROSE, Warden at
Otay Mesa Detention Center,
Respondent.
Case No.: 26v920-LL-MSB
ORDER GRANTING AMENDED
PETITION FOR WRIT OF HABEAS
CORPUS UNDER 28 U.S.C. § 2241
[ECF No. 5]
Before the Court is Petitioner Ram Gurung’s Amended Petition for a Writ of Habeas
Corpus under 28 U.S.C. § 2241. ECF No. 5 (“Pet.”). Respondent filed a Return in
opposition to the Petition [ECF No. 8 (“Ret.”)], and Petitioner filed a Traverse [ECF No. 9
(“Traverse”)]. For the reasons set forth below, the Court GRANTS the Petition.
I. 	BACKGROUND
Petitioner is a native of Nepal who fled Nepal after Maoist Party threatened to kill
him for refusing the join the party. Declaration of Ram Gurung (“Gurung Decl.”) ¶¶ 1–2,
ECF No. 5-1. On June 14, 2025, he was taken into immigration custody and has been
detained at Otay Mesa Detention Center (“OMDC”) since then. Id. ¶ 1; ECF No. 1 at 1.
After he was detained, Petitioner had an interview related to the Convention Against
Torture (“CAT”) and a credible fear interview a few months after the CAT interview,
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during which an asylum officer made a positive credible fear finding. Gurung Decl. ¶ 3;
Ret. at 1. On September 18, 2025, the agency served a Notice to Appear and placed him in
removal proceedings. Ret. at 1. Petitioner has had three court appearances in his
immigration case so far. Id. Petitioner has applied for asylum before an immigration judge
(“IJ”) but has not had a merits hearing yet. Gurung Decl. ¶ 4. Petitioner’s final merits
hearing is scheduled on April 16, 2026. Ret. at 2. Petitioner alleges that if he is denied
asylum by the IJ, he will file an appeal with the Board of Immigration Appeals (“BIA”)
and the Ninth Circuit. Gurung Decl. ¶ 6; Pet. at 2. Petitioner also alleges that his mental
health has deteriorated during his time in custody at the Otay Mesa Detention Center and
is taking medicine for his depression, which is not helping. Gurung Decl. ¶ 7. Lastly,
Petitioner alleges that he has never committed any crime. Id. ¶ 8.
Petitioner has been detained since June 14, 2025. Gurung Decl. ¶ 1. On February 12,
2026, Petitioner filed the instant Petition, alleging that he has been detained for eight
months without a bond hearing. ECF No. 1 at 6. The Court appointed counsel and Petitioner
submitted an amended petition on February 25, 2026. ECF Nos. 2, 5. He seeks a writ of
habeas corpus directing Respondent to immediately release him from custody or in the
alternative, a bond hearing before a neutral decisionmaker. Pet. at 17–19.
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). A court may grant a writ of
habeas corpus to a petitioner who demonstrates to be “in custody in violation of the
Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241(c)(3). Traditionally,
“the writ of habeas corpus has served as a means of reviewing the legality of Executive
detention, and it is in that context that its protections have been strongest.” Hamdi, 542
U.S. at 536 (quoting I.N.S. v. St. Cyr, 533 U.S. 289, 301 (2001)). Accordingly, challenges
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to immigration-related detention are within the purview of a district court’s habeas
jurisdiction. 	Zadvydas v. Davis, 533 U.S. 678, 687 (2001) (“Section 2441 habeas
proceedings are available as a forum for statutory and constitutional challenges to post-
removal-period detention.”); see also Lopez-Marroquin v. Barr, 955 F.3d 759 (9th Cir.
2020) (“[D]istrict courts retain jurisdiction under 28 U.S.C. § 2241 to consider habeas
challenges to immigration detention that are sufficiently independent of the merits of [a]
removal order.”).
III. 	DISCUSSION
Petitioner argues that his prolonged detention without a bond hearing violates the
Fifth Amendment’s Due Process Clause. Pet. at 4–8. Respondent contends there is no due
process violation because Petitioner is detained pursuant to § 1225(b)(1), which mandates
detention through the conclusion of the removal process. Ret. at 3–6.
The Due Process Clause of the Fifth Amendment provides that no person shall be
“deprived of life, liberty, or property, without due process of law.” U.S. Const. amend. V.
“It is well established that the Fifth Amendment entitles [noncitizens] to due process of
law in deportation proceedings.” Demore v. Kim, 538 U.S. 510, 523 (2003) (citing Reno v.
Flores, 507 U.S. 292, 306 (1993)). “At the same time, however, this Court has recognized
detention 	during 	deportation 	proceedings 	as 	a 	constitutionally 	valid 	aspect 	of 	the
deportation process.” Id. The Ninth Circuit has questioned the constitutionality of certain
immigration detention statutes, including § 1225(b):
We have grave doubts that any statute that allows for arbitrary prolonged
detention without any process is constitutional or that those who founded our
democracy precisely to protect against the government’s arbitrary deprivation
of liberty would have thought so. Arbitrary civil detention is not a feature of
our American government. “[L]iberty is the norm, and detention prior to trial
or without trial is the carefully limited exception.” United States v. Salerno,
481 U.S. 739, 755, 107 S. Ct. 2095, 95 L.Ed.2d 697 (1987). Civil detention
violates due process outside of “certain special and narrow nonpunitive
circumstances.” Zadvydas v. Davis, 533 U.S. 678, 690, 121 S. Ct. 2491, 150
L.Ed.2d 653 (2001) (internal quotation marks and citation omitted).
Rodriguez v. Marin, 909 F.3d 252, 256–57 (9th Cir. 2018) (alteration in original).
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The Court agrees with those courts that have found a noncitizen detained under
§ 1225(b) for a prolonged period without an individualized bond hearing may assert a
constitutional right to due process. See 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.”); Maksin v. Warden,
Golden State Annex, No. 1:25-CV-00955-SKO (HC), 2025 WL 2879328, at *3 (E.D. Cal.
Oct. 9, 2025) (“Several courts including the Third, Sixth, and Ninth Circuit, as well as
numerous district courts, have found that unreasonably long detention periods may violate
the due process clause.” (collecting cases)); Abdul-Samed v. Warden of Golden State Annex
Det. 	Facility, No. 1:25-CV-00098-SAB-HC, 2025 	WL 	2099343, at 	*6 	(E.D. 	Cal.
July 25, 2025) (“[E]ssentially all district 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), report
and recommendation adopted, No. 18-CV-01669-RAJ, 2019 WL 5962685 (W.D. Wash.
Nov. 13, 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, 1116–17 (W.D. Wash.
2019).
Respondent relies on two cases to support their argument that § 1225(b)(1) and its
provision for mandatory detention provides all the process that Petitioner is due. Ret. at 4–
5 (citing Dep’t of Homeland Sec. v. Thuraissigiam, 591 U.S. 103 (2020), and Shaughnessy
v. United States ex rel. Mezei, 345 U.S. 206 (1953)). However, the Court is not persuaded.
In Thuraissigiam, the habeas petitioner argued that the Illegal Immigration Reform
and Immigrant Responsibility Act of 1996 violated “his right to due process by precluding
judicial review of his allegedly flawed credible-fear proceeding.” Thuraissigiam, 591 U.S.
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at 138. The Supreme Court found that the petitioner, as an applicant for admission, was
provided “the right to a determination whether he had a significant possibility of
establishing eligibility for asylum” pursuant to § 1225(b), and that he had “only those rights
regarding admission that Congress has provided by statute.” Id. at 140 (internal quotation
marks 	and 	brackets 	omitted) 	(quoting 	§§ 	1225(b)(1)(B)(ii), 	(v)). 	The 	Court 	finds
Thuraissigiam addressed a noncitizen’s right to challenge admission, not detention. See,
e.g., Sadeqi, 2025 WL 3154520, at *2 (“This Court likewise agrees with those district
courts that interpret Thuraissigiam as circumscribing an arriving [noncitizen’s] due process
rights to admission, rather than limiting that person’s ability to challenge detention.”);
Aviles-Mena v. Kaiser, No. 25-CV-06783-RFL, 2025 WL 2578215, at *4 (N.D. Cal. Sept.
5, 2025) (finding Thuraissigiam inapplicable to cases challenging detention).
The Court finds that Mezei is also distinguishable. Mezei involved a noncitizen who
had been “permanently excluded from the United States on security grounds but stranded
in his temporary haven on Ellis Island because other countries [would] not take him back.”
Mezei, 345 U.S. at 207. The Supreme Court recognized Mezei’s exclusion for security
reasons as different from noncitizens who may be released from detention on bond. Id. at
216 (“An exclusion proceeding grounded on danger to the national security, however,
presents different considerations; neither the rationale nor the statutory authority for such
release exists.”). The facts are significantly different because Petitioner has not been
excluded as a security risk, does not have a final order of removal, and received a positive
finding pursuant to the CAT. See Rosales-Garcia v. Holland, 322 F.3d 386, 413–14 (6th
Cir. 	2003) 	(“[T]he 	Mezei 	Court 	explicitly 	grounded 	its 	decision 	in 	the 	special
circumstances of a national emergency and the determination by the Attorney General that
Mezei presented a threat to national security.”); Kydyrali, 499 F. Supp. 3d at 772 (finding
Mezei inapposite to issue of whether prolonged detention without a bond hearing violates
due process).
Respondent argues that applying the three-factor balancing test articulated in Lopez
v. Garland, 631 F. Supp. 3d 870, 879 (E.D. Cal. 2022) demonstrates that Petitioner’s
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detention is not unconstitutional at this stage. Ret. at 6. Petitioner contends that applying
the balancing test articulated in either Lopez or Banda v. McAleenan, 385 F. Supp. 3d 1099,
1106 (W.D. Wash. 2019), shows that his detention violates his due process rights. Pet. at
7–10; Traverse at 4–5.
Courts in the Ninth Circuit have used various factor tests to determine whether due
process requires a bond hearing in immigration detention cases, including the Banda and
Lopez tests. In Banda, the court considered the following factors to determine whether
prolonged mandatory detention under § 1225(b) in a particular case violates the Due
Process Clause: “(1) the total length of detention to date; (2) the likely duration of future
detention; (3) the 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, 385
F. Supp. 3d at 1118 (quoting Jamal A. v. Whitaker, 358 F. Supp. 3d 853, 858–59 (D. Minn.
2019)). Similarly, in Lopez, the court considered the first, second, fourth, and fifth Banda
factors for its analysis. See Lopez, 631 F. Supp. 3d at 879 (“the Court will look to the total
length of detention to date, the likely duration of future detention, and the delays in the
removal proceeding caused by the petitioner and the government.”) Therefore, this Court
will apply the Banda factors.
The Court first considers the length of detention. The total length of detention is
considered the most important factor. Banda, 385 F. Supp. 3d at 1118. To date, Petitioner
has been in detention for over eight months. Gurung Decl. ¶ 1. “Courts have found that
detention over seven months without a bond hearing weighs toward a finding that it is
unreasonable.” Amando v. United States Dep’t of Just., No. 25CV2687-LL-DDL, 2025 WL
3079052, at *5 (S.D. Cal. Nov. 4, 2025) (collecting cases). Therefore, the Court finds the
length of detention weighs in favor of Petitioner.
Next, the Court considers the likely duration of future detention. Petitioner’s
individual merits hearing is scheduled for April 16, 2026. Ret. at 2. At this hearing, if
Petitioner is awarded asylum and the Department of Homeland Security (“DHS”) does not
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appeal, he will be released. However, in any other scenario—such as if DHS appeals or if
Petitioner is granted withholding or deferral of removal but not asylum—he is likely to be
detained for months. See, e.g., Guarin v. LaRose, No. 25-CV-03085-DMS-VET, 2025 WL
3440689, at *1 (S.D. Cal. Dec. 1, 2025) (withholding of removal granted May 22, 2025
and petitioner filed habeas petition for prolonged detention almost six months later); C.M.S.
v. Oddo, No. 3:25-CV-00216, 2025 WL 3442697, at *1 (W.D. Pa. Dec. 1, 2025) (petitioner
detained for more than ten months after a final order of removal with withholding granted
and only released upon writ of habeas corpus); Maksim v. Annex, No. 1:25-CV-00955-
SKO (HC), 2025 WL 2879328, at *4 (E.D. Cal. Oct. 9, 2025) (finding determination of
asylum application and subsequent appeal could take a substantial amount of time). If
Petitioner is denied asylum, he intends to appeal to the BIA and the Ninth Circuit, which
can take years. Gurung Decl. ¶ 6. All told, “[t]his process may take up to two years or
longer.” Banda, 385 F. Supp. 3d at 1119. Therefore, the Court finds this factor weighs in
favor of Petitioner.
In considering the conditions of detention, “[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 (second alteration
in original) (citation omitted). Petitioner is detained at OMDC, and courts have found
confinement at OMDC is “indistinguishable from penal confinement” as it is “a private,
for-profit detention center operated by CoreCivic, Inc., which also runs many state
penitentiaries.” Kydyrali, 499 F. Supp. 3d at 773. Noncitizen detainees at OMDC are
“locked up behind razor wire and concrete walls in a secured facility,” and are forced to
wear “a color-coded prisoner jump suit,” Abdul Kadir v. Larose, No. 25CV1045-LL-MMP,
2025 WL 2932654, at *5 (S.D. Cal. Oct. 15, 2025). The Court finds this factor weighs in
favor of Petitioner.
The fourth and fifth factors concern delays in the removal proceedings caused by
Petitioner or the Respondent. Respondent does not argue that Petitioner delayed the
proceedings or that proceedings have been delayed. Ret. at 6. Petitioner also claims that
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the delay factor is neutral as there is no indication that he engaged in any unreasonable
delay. Pet. at 9. The Court finds no showing that either side has caused undue delays, so
these factors are neutral.
In considering the “likelihood that the removal proceedings will result in a final order
of removal,” the Court considers “whether the noncitizen has asserted any defenses to
removal.” Banda, 385 F. Supp. at 1120 (citations omitted). “[W]here a noncitizen has
asserted a good faith challenge to removal, ‘the categorical nature of the detention will
become increasingly unreasonable.’” Id. (citing Sajous v. Decker, No. 18-CV-2447 (AJN),
2018 WL 2357266, at *11 (S.D.N.Y. May 23, 2018)). Here, an asylum officer made a
positive credible fear finding. Ret. at 1. The Court finds this delay factor is slightly in favor
of Petitioner.
Considering all the factors, the Court finds Petitioner’s mandatory detention under
§ 1225(b) has become unreasonable and that due process requires that he be provided with
a bond hearing. See Rodriguez v. Robbins, 715 F.3d 1127, 1144 (9th Cir. 2013) (“[W]e
note that the discretionary parole system available to § 1225(b) detainees is not sufficient
to overcome the constitutional concerns raised by prolonged mandatory detention.”). At
the bond hearing before a neutral immigration judge, Respondent “must justify his
continued detention by a showing of clear and convincing evidence that Petitioner would
likely flee or pose a danger to the community if released.” Gao v. LaRose, 805 F. Supp. 3d
1106, 1112 (S.D. Cal. 2025) (citations omitted); Martinez v. Clark, 124 F.4th 775, 786 (9th
Cir. 2024) (noting that due process requires “the government to prove dangerousness or
risk of flight by clear and convincing evidence” at a bond hearing for noncitizens subject
to prolonged detention (citing Singh v. Holder, 638 F.3d 1196, 1200, 1205 (9th Cir. 2011)).
With all factors weighing in favor of Petitioner, the Court finds due process requires
that he be provided with a bond hearing. Accordingly, the Court GRANTS the Petition.
IV. 	CONCLUSION
For the reasons above, the Court GRANTS Petitioner’s Petition for Writ of Habeas
Corpus under 28 U.S.C. § 2241. Within seven days of this Order, Respondent is directed
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to arrange an individualized bond hearing 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.
IT IS SO ORDERED.
Dated: March 19, 2026
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