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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
AMIN ESMAEILI,
Petitioner,
v.
KRISTI NOEM, Secretary of the
Department of Homeland Security,
PAMELA JO BONDI, Attorney General,
TODD M. LYONS, Acting Director,
Immigration and Customs Enforcement,
JESUS ROCHA, Acting Field Office
Director, San Diego Field Office,
CHRISTOPHER LAROSE, Warden at
Otay Mesa Detention Center,
Respondents.
Case No.: 26-cv-0203-GPC-JLB
ORDER GRANTING WRIT OF
HABEAS CORPUS
[ECF No. 1]
Before the Court is Petitioner Amin Esmaeili’s petition for a writ of habeas corpus.
ECF No. 1. The matter has been fully briefed, and the Court finds the matter suitable for a
decision based upon the briefing. The hearing scheduled for January 30, 2026, is
VACATED. For the reasons outlined below, the petition is GRANTED.
/ / /
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BACKGROUND
On January 14, 2026, Petitioner filed a writ of habeas corpus. ECF No. 1.
Respondents responded in opposition to the petition on January 20, 2026, ECF No. 3, and
Petitioner filed a traverse on January 21, 2026.
Petitioner and his family came to the United States from Iran in 2006, when
Petitioner was fourteen years old. ECF No. 1, at 1. In 2011, Petitioner was convicted of
assault with a deadly weapon, burglary, and robbery, resulting in a prison sentence. ECF
No. 3, at 2. Petitioner was released from custody in 2015 and transferred to ICE to initiate
removal proceedings, wherein ICE issued Petitioner a Notice to Appear. Id. In August
2015, an immigration judge granted Petitioner’s request for release from ICE custody on
bond and with an ankle monitor. Id. In January 2017, Petitioner was arrested on a parole
violation. Id. In August 2017, Petitioner was again transferred to ICE custody pending
removal proceedings. Id.
In 2018, an immigration judge ordered Petitioner removed to Iran. ECF No. 1 at 3;
ECF No. 3, at 3. However, Petitioner was provided with relief from removal to Iran under
the Convention Against Torture. ECF No. 1, at 3; ECF No. 3, at 3. Petitioner was
subsequently released in May 2018 under an order of supervision. ECF No. 1, at 3; ECF
No. 3, at 3.
On January 6, 2025, Petitioner arrived at the San Ysidro, California Port of Entry
and requested admission to the United States. ECF No. 3, at 3. Petitioner was detained and
issued an expedited order of removal under the Immigration and Nationality Act as a
noncitizen not in possession of a valid entry document at the time of application for entry.
Id. San Diego Enforcement and Removal Operations (“ERO”) decided not to proceed with
the expedited removal order but instead effectuate Petitioner’s 2018 order of removal. Id.
Respondents contend that they do not intend to remove Petitioner to Iran. Id.
Petitioner has now been detained at Otay Mesa Detention Center for over twelve
months. ECF No. 1, at 3. Respondents argue that, during this time, ICE has been working
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as “expeditiously as possible” to execute Petitioner’s removal, but has not yet identified a
third country to which they can deport Petitioner. ECF No. 3, at 7. Petitioner has been told
that he will continue to be detained while Respondents look for a third country for
deportation. Id. at 5. He has not been given a chance to contest his re-detention. Id.
Over the past year in detention, Petitioner alleges that Respondents have told him he
could be deported to Panama, Honduras, El Salvador, Guatemala, Turkey, or Germany. Id.
Petitioner also alleges that ICE intends to deport him to a third country without providing
Petitioner with adequate time to investigate and, if necessary, raise the possibility of
persecution in that third country. Id.
Petitioner now asks for a writ of habeas corpus seeking both immediate release and
an order enjoining Respondents from (1) re-detaining petitioner without first abiding by
federal regulations and (2) removing Petitioner to a third country without first providing
notice and an opportunity to be heard before an immigration judge. ECF No. 1, at 23-24.
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).
The writ of habeas corpus is “available to every individual detained within the United
States.” Hamdi v. Rumsfeld, 542 U.S. 507, 525 (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 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.” See Espinoza v. Sabol, 558 F.3d 83, 89 (1st Cir. 2009).
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JURISDICTION
Respondents maintain that this Court lacks jurisdiction over Petitioner’s claims
under 8 U.S.C. § 1252(g). ECF No. 3, at 4. Petitioner argues that § 1252(g) does not strip
this Court of jurisdiction. ECF NO. 4, at 4.
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. Importantly, section 1252(g) “does not prohibit challenges to unlawful practices
merely because they are in some fashion connected to removal orders,” nor does it apply
to “general collateral challenges to unconstitutional practices and policies used by the
agency.” Ibarra-Perez v. United States, 154 F.4th 989, 997-98 (9th Cir. 2025) (internal
quotation marks and citation omitted).
Respondents argue that the § 1252(g) bar applies because Petitioner’s claims seek to
enjoin the decision to execute his order of removal. ECF No. 3, at 4. However, this
mischaracterizes Petitioner’s request. Petitioner is not challenging the execution of his
removal order. Instead, Petitioner challenges (1) his re-detention without notice of why his
supervision was revoked, (2) his continued detention pending his removal, and (3) the
potential of a removal to a third country without adequate notice. ECF No. 4, at 4-5.
Petitioner’s challenges do not fall within the three discrete actions identified in
§ 1252(g). Rather, they constitute challenges to unlawful and unconstitutional practices.
See Ibarra-Perez, 154 F.4th at 997 (internal quotation marks and citations omitted); see
also Constantinovici v. Bondi, --- F. Supp. 3d ---, 2025 WL 2898985, at *3 (S.D. Cal. Oct.
10, 2025) (finding the court has jurisdiction to consider challenges to detention as
unlawful). Thus, § 1252(g) does not present a jurisdictional bar to the instant petition.
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DISCUSSION
Petitioner raises three arguments. First, Petitioner argues that his re-detention in
January 2025 violates due process and federal regulations due to ICE’s failure to comport
with their own policies. ECF No. 1, at 11-14. Next, Petitioner argues that his ongoing
detention violates the Supreme Court’s decision in Zadyvydas v. Davis, 533 U.S. 678
(2001), because he has been detained for over twelve months and there is no evidence that
he will be removed in the reasonably foreseeable future. Id. at 14-18. Lastly, Petitioner
argues that due process requires that Respondents cannot deport him to a third country
without first providing him notice and an opportunity to be heard Id. at 20-23.
Respondents contend that (1) Petitioner’s detention is proper under Zadvydas
because there is a significant likelihood of removal to a third country in the reasonably
foreseeable future; and (2) Respondents’ failure to comply with federal regulations do not
require release from detention because Petitioner has failed to show prejudice. Respondents
do not address Petitioner’s arguments regarding what procedural protections must be
provided to Petitioner prior to removal to a third country.
I. Zadvydas v. Davis
The Supreme Court has recognized a six-month presumptively reasonable period of
detention after a noncitizen's removal order becomes final. Zadvydas, 533 U.S. at 701.
“After this 6-month period, once the alien provides good reason to believe that there is no
significant likelihood of removal in the reasonably foreseeable future, the Government
must respond with evidence sufficient to rebut that showing.” Id.
A. Presumption of Reasonableness
Respondents “acknowledge that the six-month period of presumptively reasonable
detention has passed.” ECF No. 3, at 6. Thus, Petitioner must now show that he has “good
reason to believe” that he will not likely be deported in the foreseeable future.
B. Good Reason to Believe
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“Good reason to believe does not place a burden upon the detainee to demonstrate
no reasonably foreseeable, significant likelihood of removal or show that his detention is
indefinite; it is something less than that.” Azzo v. Noem, No. 3:25-CV-03122-RBM-BJW,
2025 WL 3535208, at *3 (S.D. Cal. Dec. 10, 2025) (quoting Senor v. Barr, 401 F. Supp.
3d 420, 430 (W.D.N.Y. 2019)). But Petitioner must offer more than “conclusory
statements” suggesting he will not be removed. Id. (quoting Andrade v. Gonzalez, 459 F.3d
538, 543 (5th Cir. 2006)).
Petitioner has shown that he has “good reason to believe” that his removal is not
significantly likely in the reasonably foreseeable future. First, Petitioner notes that ICE has
had seven and a half years to deport him and has not done so. ECF No. 1, at 18. Petitioner
further argues that ICE has “had the last year of his tenure in custody to focus its efforts to
deport him,” but has been unable to do so. Id. Over the past year, Petitioner alleges that the
government has “tried and failed” to deport Petitioner to at least six countries, indicating
that identifying a country for Petitioner’s removal is proving to be a challenging task. Id.
The Court finds that Petitioner has met his burden such that Respondents must now
“respond with evidence sufficient to rebut that showing.” Zadvydas, 533 U.S. at 701.
C. Significant Likelihood of Removal in the Reasonably Foreseeable Future
Respondents argue that they have sufficiently rebutted Petitioner’s showing.
Specifically, Respondents note that (1) “recent developments in international relations
between the United States and several other countries have made probable ICE's removal
of immigrants . . . that it previously was unable to remove to third countries,” ECF No. 3,
at 7; (2) “ICE has worked diligently to identify an alternate country for removal” including
requesting repatriation to several countries and seeking assistance from Removal and
International Operations (RIO) to identify a third country for removal, id.; and (3)
“[e]vidence of progress, albeit slow progress, in negotiating a petitioner's repatriation will
satisfy Zadvydas unless the petitioner's detention grows unreasonably lengthy,” id. at 8.
The Court disagrees.
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Respondents have not presented any evidence that any country to which the
government has reached out—either Mexico, the United Arab Emirates, or Qatar—has
provided any indication that it might accept Petitioner. Indeed, the only response they have
received is Panama’s refusal to accept Petitioner. ECF No. 3, at 7. Additionally, beyond
the simple fact that Respondents have asked these countries to accept Petitioner,
Respondents have provided no information regarding the countries’ likelihood to accept
Petitioner, no estimate as to when the countries might respond, and no estimate as to how
long after response removal might be effectuated. This Court has found that “[g]eneral
indications that U.S. agencies have been in discussions with [target countries] regarding
repatriation efforts do not indicate that those discussions will result in the timely removal
of Petitioner, as it is unclear whether those efforts will be successful.” Lopez-Cacerez v.
McAleenan, Case No. 19-cv-1952-AJB-AGS, 2020 WL 3058096, at *6 (S.D. Cal. June 9,
2020) (quoting Zhao v. Kelly, No. CV 17-777-BRO (KES), 2017 WL 1591818, at *4 (C.D.
Cal. Apr. 27, 2017)). If anything, Respondents’ contentions that ICE has been working as
“expeditiously as possible” over the past twelve months to effectuate Petitioner’s removal
but has failed to do so leads the Court to conclude that Petitioner’s removal is complex and
will not be resolved in the near future. See ECF No. 3, at 7.
Thus, the Court finds that Respondents have “offered little more than generalizations
regarding the likelihood that removal will occur,” Azzo, 2025 WL 3535208, at *3 (quoting
Kamyab v. Bondi, No. C25-389RSL, 2025 WL 2917522, at *4 (W.D. Wash. Oct. 14,
2025)). Accordingly, Respondents have not met their burden to “respond with evidence
sufficient to rebut” Petitioner’s showing. Zadvydas, 533 U.S. at 701. Petitioner's detention
is therefore no longer reasonable or authorized by statute, and Petitioner must be released
from custody under the conditions of his most recent order of supervision. See, e.g., Nguyen
v. Scott, 796 F. Supp. 3d 703, 739 (W.D. Wash. 2025); Vlasov v. Bondi, No. 25-CV-1342-
AJB-MSB, 2025 WL 2258582, at *3 (S.D. Cal. Aug. 7, 2025); Vishal v. Chestnut, No.
1:25-CV-01469-SAB-HC, ---F. Supp. 3d---, 2025 WL 3511815 (E.D. Cal. Dec. 8, 2025);
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Ndandu v. Noem, No. 3:25-CV-02939-RBM-MSB, 2026 WL 25848, at *6 (S.D. Cal. Jan.
5, 2026).
II. Agency Regulations and Due Process
Petitioner also argues that his detention is unlawful and violates due process because
Respondents revoked his release without providing Petitioner with the reasons for his re-
detention or a prompt interview. ECF No. 1, at 13. Though Respondents concede that no
notice or interview was provided, they argue that Petitioner has failed to demonstrate any
constitutional violation or prejudice from Respondents’ failure to follow their own
regulations. ECF No. 3, at 8-9.
While the government retains significant discretion to enforce the immigration laws,
see Diaz v. Wofford, No. 1:25-CV-01079 JLT EPG, 2025 WL 2581575, at *7 (E.D. Cal.
Sept. 5, 2025), the “the government's discretion to incarcerate non-citizens is always
constrained by the requirements of due process.” Hernandez v. Sessions, 872 F.3d 976, 981
(9th Cir. 2017). 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, and “[f]reedom from imprisonment—from government custody, detention, or
other forms of physical restraint—lies at the heart of the liberty that [the Due Process]
Clause protects.” Zadvydas v. Davis, 533 U.S. 678, 690 (2001). “The fundamental
requirements of procedural due process are that a person be afforded notice and opportunity
to be heard ‘at a meaningful time and in a meaningful manner.’” Constantinovici v. Bondi,
--- F. Supp. 3d ---, No. 3:25-CV-02405-RBM-AHG, 2025 WL 2898985, at *4 (S.D. Cal.
Oct. 10, 2025) (quoting Mathews v. Eldridge, 424 U.S. 319, 333 (1976)). Due process
rights apply to noncitizens, including those whose presence in the United States is
unlawful. Zadvydas, 533 U.S. at 693.
The Government has promulgated regulations concerning the release—and
revocation of that release—of noncitizens who, like Petitioner, are subject to a final
removal order. See 8 C.F.R. § 241.4; 8 C.F.R. § 241.13. These regulations “were intended
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to ‘provide due process protections to [noncitizens] following the removal period as they
are considered for continued detention, release, and then possible revocation of release[.]’”
Constantinovici, --- F. Supp. 3d ---, 2025 WL 2898985, at *5 (quoting Santamaria
Orellana v. Baker, Civil Action No. 25-1788-TDC, 2025 WL 2444087, at *6 (D. Md. Aug.
25, 2025)). The regulations provide that, upon revocation of release, a noncitizen will be
(1) notified of the reasons for revocation of his release, and (2) promptly given an initial
informal interview to afford the noncitizen an opportunity to respond to those reasons. 8
C.F.R. § 241.4(l)(1) & § 241.13(i)(3).
Respondents do not contest that they violated the notice and interview requirements
of 8 C.F.R. §§ 241.4 and 241.13. ECF No. 3, at 8 (“Respondents acknowledge that
Petitioner was not provided a notice of revocation or informal interview after he was re-
detained”). However, they argue that Petitioner has not established a constitutional
violation or that he was prejudiced by Respondents’ conduct. ECF No. 3, at 9-11.
Respondents misstate the law. This Court has held as follows:
[T]here are, for present purposes, two types of regulations: (1)
those that protect fundamental due process rights, and (2) [ ]
those that do not.” United States v. Raya-Vaca, 771 F.3d 1195,
1205 (9th Cir. 2014), abrogated on other grounds by Dep't of
Homeland Sec. v. Thuraissigiam, 591 U.S. 103 (2020). “A
violation of the first type of regulation . . . implicates due process
concerns even without a prejudice inquiry.” Id. (holding that
where “the regulation violation . . . constituted a denial of [the
defendant's] right to notice and an opportunity to respond, no
showing of prejudice [was] necessary to establish a due process
violation”). “There can be little argument that ICE's requirement
that noncitizens be afforded an informal interview . . . derives
from the fundamental constitutional guarantee of due process.”
Ceesay v. Kurzdofer, 781 F. Supp. 3d 137, 165 n.26 (W.D.N.Y.
2025). Accordingly, Respondents' violation “implicates due
process concerns even without a prejudice inquiry.” Raya-Vaca,
771 F.3d at 1205.
Azzo, 2025 WL 3535208, at *5.
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Furthermore, Petitioner has been prejudiced. Sections 241.4 and 241.13 “were
intended to provide due process protections” to noncitizens in Petitioner’s circumstance.
Constantinovici, --- F. Supp. 3d ---, 2025 WL 2898985, at *5 (internal quotation marks
and citation omitted). By failing to comply with these regulations, Respondents
“prejudiced interests of [Petitioner] which were protected by the regulation[s].” Azzo,
2025 WL 3535208, at *6 (quoting United States v. Calderon-Medina, 591 F.2d 529, 531
(9th Cir. 1979)). Thus, Petitioner was prejudiced by ICE’s failure to comply with its own
regulations. See Azzo, 2025 WL 3535208, at *5.
It is well-established that government agencies are required to follow their own
regulations. Constantinovici, --- F. Supp. 3d ---, 2025 WL 2898985, at *5 (citing United
States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 268 (1954); United States v. Ramos,
623 F.3d 672, 683 (9th Cir. 2010)). District courts across the country have “determined
that where ICE fails to follow its own regulations in revoking release, the detention is
unlawful and the petitioner's release must be ordered.” Rokhfirooz v. LaRose, --- F. Supp.
3d ---, 2025 WL 2646165, at *4 (S.D. Cal. Sept. 15, 2025) (collecting cases); see, e.g.,
K.E.O. v. Woosley, No. 4:25-cv-74-RGJ, 2025 WL 2553394, at *7 (W.D. Ky. Sept. 4,
2025) (noting “courts across the country have ordered the release of individuals” in ICE
custody where ICE “violated their own regulations”). This Court agrees and finds that
ICE’s failure to follow its own regulations constitutes an additional, independent grounds
for Petitioner’s release.
Respondents seek to distinguish the cases relied upon by Petitioner by asserting that
they do not involve a noncitizen who “voluntarily self-deported after being ordered
removed and subsequently presented himself to immigration officials upon re-entering the
United States without proper documentation.” ECF No. 3, at 11. However, Respondents
do not elaborate on how these circumstances would impact the rights Petitioner now seeks
to assert, nor do they provide any case law supporting their contention that these
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circumstances require a different result. Thus, this undeveloped argument does not
persuade the Court.
III. Third Country Removal
Lastly, Petitioner argues that “ICE’s policies threaten [his] unlikely, but potentially
immediate, removal to an unidentified third country without adequate notice and an
opportunity to be heard.” ECF No. 1, at 20. Respondents do not respond to Petitioner’s
arguments regarding the unconstitutionality of their third-country removal policies.
However, they do confirm that ICE procedures provide that, when a third country is
identified for resettlement, ICE will provide a notice of removal to the noncitizen. ECF No.
3, at 4. After the notice, ICE “will generally wait at least 24 hours,” but in some cases just
“six or more hours” before effectuating removal. Id. Respondents assert that Petitioner
would be provided with reasonable means and opportunity to speak with an attorney prior
to removal, and if Petitioner claims fear of removal to the identified country, he would be
referred to an asylum officer. Id.
The policies outlined by Respondents reflect the guidance in a July 9, 2025, memo
from ICE Director Todd Lyons.1 The memo provides that, if the United States has received
credible assurances from the country of removal that a noncitizen removed from the United
States will not be persecuted or tortured, then the noncitizen “may be removed without the
need for further procedures.” ECF No. 1, at 47. The memo further specifies that ICE will
not affirmatively ask whether a noncitizen is afraid of being removed to the country of
removal. Id.
“As several courts have held, the policies in the ICE memo are ‘contrary to Ninth
Circuit precedent.’” Azzo, 2025 WL 3535208, at *7 (quoting Vu v. Noem, No. 1:25-cv-
01366-KES-SKO (HC), 2025 WL 3114341, at *9 (E.D. Cal. Nov. 6, 2025)); see
1 Attached to the petition as Exhibit D. ECF No. 1, at 47.
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also Nguyen v. Scott, 2025 WL 2419288, at *18–23; Zakzouk v. Becerra, No. 25-CV-
06254-KAW, 2025 WL 2899220, at *4 (N.D. Cal. Oct. 10, 2025); Baltodano v. Bondi,
No. C25-1958RSL, 2025 WL 2987766, at *2–3 (W.D. Wash. Oct. 23, 2025). Noncitizens
are guaranteed due process in deportation proceedings, Torres-Aguilar v. I.N.S., 246 F.3d
1267, 1270 (9th Cir. 2001), and “failing to notify individuals who are subject to
deportation that they have the right to apply for asylum in the United States and for
withholding of deportation to the country to which they will be deported violates the
constitutional right to due process.” Andriasian v. I.N.S., 180 F.3d 1033, 1041 (9th Cir.
1999). The burden is on the government “to provide a meaningful opportunity to be heard
on asylum and withholding claims.” Nguyen v. Scott, --- F. Supp. 3d ---, 2025 WL
2419288, at *18 (W.D. Wash. Aug. 21, 2025) (quoting Aden v. Nielsen, 409 F. Supp. 3d
998, 1009 (W.D. Wash. 2019)). Thus, a “noncitizen must be given sufficient notice of a
country of deportation that, given his capacities and circumstances, he would have a
reasonable opportunity to raise and pursue his claim for withholding of
deportation.” Id. (quoting Aden, 409 F. Supp. 3d at 1009).
Accordingly, this Court joins others in finding that ICE’s third-country removal
policies—as identified by Petitioner and confirmed by Respondents—violate the
constitutional right to due process. Thus, Respondents must provide Petitioner with
adequate notice and an opportunity to be heard before removing him to a third country.
CONCLUSION
Considering the above, the Court holds as follows:
1. Petitioner’s petition for writ of habeas corpus is hereby GRANTED.
2. Respondents are ORDERED to immediately release Petitioner from custody,
subject to his most recent order of supervision.
3. Respondents are PROHIBITED from removing Petitioner to a third country
without notice and a meaningful opportunity to be heard and to apply for fear-based
relief prior to removal.
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IT IS SO ORDERED.
Dated: January 29, 2026
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