Tilliaeva v. Warden of Otay Mesa Detention Center

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
FIRUZA TILLIAEVA,
Petitioner,
v.
WARDEN OF OTAY MESA
DETENTION CENTER,
Respondent.
Case No.: 26-cv-0054-BJC-MSB
ORDER GRANTING PETITION FOR
WRIT OF HABEAS CORPUS
Petitioner Firuza Tilliaeva, a native of Uzbekistan and citizen of Russia, arrived for
her CBP One appointment to apply for admission into the United States on September 11,
2024, and was taken into Department of Homeland Security (“DHS”) custody. ECF No.
7-2 at 2-6. 	Following a credible fear determination by an asylum officer, removal
proceedings were initiated, and Petitioner’s individual hearings set for May 22, 2025, June
5, 2025, August 4, 2025, and November 26, 2025 were all continued upon Petitioner’s
counsel’s request to continue the hearing or extend the filing deadline. ECF No. 1-2 at 4,
6; ECF No. 7-3 at 2; ECF No. 7-4 at 2; ECF No. 7-6 at 2. Petitioner’s individual hearing
is currently scheduled for May 6, 2026. ECF No. 7-9 at 2.
On January 5, 2026, Petitioner filed the instant petition. 	This Court set a briefing
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schedule on the petition and issued a limited stay. ECF No. 2. Respondent filed a return
to the petition on January 15, 2026. ECF No. 7. On January 23, 2026, Petitioner filed a
traverse. ECF No. 8.
LEGAL STANDARD
Courts may grant habeas corpus relief to those “in custody in violation of the
Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241; see also Hamdi v.
Rumsfeld, 542 U.S. 507, 525, 124 S. Ct. 2633, 2644, 159 L. Ed. 2d 578 (2004) (“[T]he writ
of habeas corpus remains available to every individual detained within the United States.”).
Courts are authorized to grant writs pursuant to § 2241 to noncitizens in custody in
violation of the Constitution or laws or treaties of the United States. 	Magana-Pizano v.
I.N.S., 200 F.3d 603, 609 (9th Cir. 1999).
DISCUSSION
Petitioner asserts her detention without a bond hearing violates the Due Process
Clause of the Fifth Amendment, is unreasonable, and arbitrary and capricious. Respondent
argues Petitioner’s claims are barred by 8 U.S.C. § 1252(g), and she is lawfully detained.
I. Jurisdiction
Respondent contends Petitioner’s claims arise from DHS’s decision to commence
removal proceedings and, therefore, her claims are jurisdictionally barred pursuant to 8
U.S.C. § 1252(g). 	ECF No. 7 at 4-5. 	Petitioner contends she is solely challenging her
ongoing detention, not the procedures governing her admission into the United States. ECF
No. 8 at 5.
Congress explicitly divested the court of jurisdiction over claims “arising from the
decision or action by the Attorney General to commence proceedings, adjudicate cases, or
execute removal orders.” 8 U.S.C. § 1252(g). The provision is read narrowly and does not
apply to every decision or action that may be a part of the deportation process, only those
involving the Attorney General’s decision to commence proceedings, adjudicate cases, or
execute removal orders. Ibarra-Perez v. United States, No. 24-631, 2025 WL 2461663, at
*6 (9th Cir. Aug. 27, 2025) (citing Reno v. American-Arab Anti-Discrimination Committee,
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525 U.S. 471 (1999)). 	Challenges to unconstitutional practices and policies that do not
arise from the Attorney General’s decision to commence proceedings, adjudicate cases or
execute removal orders, but are merely collateral to those, are not subject to § 1252(g).
Walters v. Reno, 145 F.3d 1032, 1052 (9th Cir. 1998) (citing McNary v. Haitian Refugee
Ctr., Inc., 498 U.S. 479, 492, 111 S.Ct. 888, 112 L.Ed.2d 1005 (1991)).
Petitioner’s claim, which challenges her detention as unconstitutionally prolonged,
is merely collateral to, but does not arise from the decision to commence and adjudicate
proceedings. 	See Nguyen v. Fasano, 84 F. Supp. 2d 1099, 1104 (S.D. Cal. 2000)
(“Petitioners’ challenge to their indefinite detention is [ ] distinct from a petition that seeks
review of the bond determination itself.”); Alikhani v. Fasano, 70 F. Supp. 2d 1124, 1126
(S.D. 	Cal. 	1999) 	(“[A] 	challenge 	to 	the 	constitutionality 	of 	confinement 	pending
deportation does not address any discretionary action by the Attorney General, and “does
not implicate the three categories of unreviewable decisions specified in § 1252(g).”);
Diaz-Zaldierna v. Fasano, 43 F. Supp. 2d 1114, 1117 (S.D. Cal. 1999) (“The propriety of
holding petitioner without any possibility of release on bail is distinct from a ‘decision or
action by the Attorney General to commence proceedings, adjudicate cases, or execute
removal orders.’”). Accordingly, § 1252(g) does not deprive this Court of jurisdiction to
hear Petitioner’s claims.
II. Merits of the Petition
Petitioner argues her ongoing detention without an individualized custody review
violates her due process rights. 	ECF No. 1 at 6-8. 	Respondent contends Petitioner’s
mandatory detention is not unconstitutionally prolonged. ECF No. 7 at 6-13. Many district
courts addressing habeas petitions asserting claims based upon mandatory detention have
determined that prolonged detention without a bond hearing violates due process rights.
See Gao v. LaRose, 805 F. Supp. 3d 1106, 1110 (S.D. Cal. 2025) (listing cases).
Additionally, the Supreme Court and the Ninth Circuit have recognized that indefinite
prolonged detention of an alien raises due process concerns. Zadvydas v. Davis, 533 U.S.
678, 690, (2001) (“A statute permitting indefinite detention of an alien would raise a
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serious constitutional problem.”); Rodriguez v. Marin, 909 F.3d 252, 256 (9th Cir. 2018)
(“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.”). Accordingly, this Court finds prolonged detention without a bond hearing raises due
process concerns that are inextricably linked to the length of incarceration.
Respondent addresses the three-factor balancing test from Lopez v. Garland, 631 F.
Supp. 3d 870 (E.D. Cal. 2022), in support of their argument that Petitioner is lawfully
detained. Petitioner, in her traverse, fails to address Respondent’s arguments or any of the
Lopez factors. Instead, she uses the test from Matthews v. Eldridge, 424 U.S. 319 (1976)
in support of her claim. 	However, courts have found, and this Court agrees, that the
Matthews 	factors “are not particularly probative of 	whether prolonged mandatory
detention has become unreasonable in a particular case.” Banda v. McAleenan, 385 F.
Supp. 3d 1099, 1118 (W.D. Wash. 2019). 	While the Lopez test is appropriately used by
courts, the Court finds the multi-factor test from Banda, which includes the three factors
from Lopez, is more suitable to determine the possible constitutional implications of
Petitioner’s ongoing detention without process. The Banda test considers
the (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 1106.
Petitioner has been in custody for over seventeen months. 	While not a bright line
rule, generally, courts “become extremely wary of permitting continued custody absent a
bond hearing” after a petitioner is detained past a year. 	Yagao v. Figueroa, No. 17-cv-
2224-AJB-MDD, 2019 WL 1429582 at *2 (S.D. Cal. Mar. 29, 2019) (quoting Muse v.
Sessions, No. 18-CV-0054 (PJS/LIB), 2018 WL 4466052, at *4 (D. Minn. Sept. 18, 2018)).
Petitioner’s detention exceeds that timeframe. 	As such, this factor weighs in favor of
finding Petitioner’s detention implicates due process concerns.
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The 	likely 	duration 	of 	future 	detention 	also 	weighs 	in 	favor 	of 	Petitioner.
Petitioner’s individual merits hearing is set for May 6, 2026. Depending on the result, there
may be an appeal, and she will remain in detention for the duration of the appeal.
Additionally, Petitioner is detained at Otay Mesa Detention Center, where conditions “are
not dissimilar to criminal confinement.” Gao, 805 F. Supp. 3d at 1111. As such, this factor
weighs in Petitioner’s favor.
The circumstances surrounding this petition support that the delay factors are
neutral. 	Petitioner’s counsel sought multiple continuances of the proceedings based
primarily on translation problems and the need for an interpreter. 	The Court is without
sufficient information to determine whether Petitioner’s proceedings will result in removal.
As such, this factor is neutral. On balance, the factors, especially the length of Petitioner’s
detention, which is the most important factor, demonstrate Petitioner’s ongoing detention
is unreasonable and due process requires a bond hearing. Banda, 385 F. Supp. 3d at 1118.
Accordingly, 	the 	Court 	GRANTS 	the 	Petition 	for 	Writ 	of 	Habeas 	Corpus.
Respondent shall provide Petitioner with an individualized bond hearing under 8 U.S.C. §
1226(a) 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. Petitioner’s request for
attorneys’ fees and costs is DENIED without prejudice to Petitioner filing an appropriate
application for fees. The Clerk of Court shall close this matter.
IT IS SO ORDERED.
Dated: February 27, 2026
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