Zhakuov v. Noem et al

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
KANAT ZHAKUOV,
Petitioner,
v.
KRISTI NOEM, et al.,
Respondents.
Case No.: 3:26-cv-00288-RBM-DDL
ORDER GRANTING AMENDED
PETITION FOR WRIT OF
HABEAS CORPUS
[Doc. 7]
Pending before the Court is Petitioner Kanat Zhakuov’s (“Petitioner”) Amended
Petition for Writ of Habeas Corpus (“Amended Petition”) pursuant to 28 U.S.C. § 2241.
(Doc. 7.) For the reasons set forth below, the Court GRANTS the Amended Petition.
I. 	BACKGROUND
A. 	Factual Background
Petitioner is a native and citizen of Kazakhstan who entered the United States on
December 17, 2024. 	(Doc. 8 at 1–2 (citing Doc. 8-1 at 3); Doc. 7-1 at 2, Declaration of
Kanat Zhakuov (“Zhakuov Decl.”), ¶ 1.)1 That same day, Petitioner was determined to be
inadmissible under 8 U.S.C. § 1182(a)(7)(A)(i)(I) and taken into ICE custody. (Doc. 8 at
1 The Court cites the CM/ECF electronic pagination for filings unless otherwise noted.
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1–2.) 	Petitioner received a positive credible fear determination and was then issued a
Notice to Appear, which initiated removal proceedings against him. (Id. at 2.)
Petitioner had an individual merits hearing on January 12, 2026. 	(Id.) 	The
immigration judge conducted the hearing and denied Petitioner’s applications for asylum,
withholding of removal, and relief under the Convention Against Torture (“CAT”). (Id.;
Zhakuov Decl. ¶ 5.) Petitioner is “currently appealing the immigration judge’s order” to
the Board of Immigration Appeals (“BIA”). (Zhakuov Decl. ¶ 5.)
B. 	Procedural Background
Petitioner, originally proceeding pro se, filed his Petition for a Writ of Habeas
Corpus Under 28 U.S.C. § 2241 and Motion to Appoint Counsel on January 16, 2026.
(Doc. 1.) The Court denied the Motion to Appoint Counsel but granted Petitioner leave to
file a renewed motion. (Doc. 2 at 1–2.) On February 4, 2026, Petitioner filed that renewed
motion. (Doc. 3.) The Court granted the renewed motion, appointed Federal Defenders of
San Diego, Inc. as counsel, and set a briefing schedule. (Doc. 4.) On February 12, 2026,
Petitioner filed the Amended Petition. 	(Doc. 7.) 	A week later, Respondents filed their
Return to Habeas Petition (“Response”). (Doc. 8.) On February 23, 2026, Petitioner filed
his Traverse (“Reply”). (Doc. 9.)
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). “Writs of habeas corpus may
be granted by the Supreme Court, any justice thereof, the district courts and any circuit
judge within their respective jurisdictions.” 28 U.S.C. § 2241(a). The 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.” Id. § 2241(c)(3).
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III. 	DISCUSSION
The Parties agree that Petitioner is subject to mandatory detention under 8 U.S.C.
§ 1225(b). 	(See Doc. 7 at 2; Doc. 8 at 2.) 	Accordingly, the issue before the Court is
whether, under the circumstances of this case, applying the mandatory detention provisions
of § 1225(b) violates Petitioner’s due process rights.2
Petitioner argues that, even though he is mandatorily detained, the “Due Process
Clause countermands the government’s statutory authority to detain immigrations without
bond hearings” when such detention becomes unreasonably prolonged. 	(Doc. 7 at 3;
Doc. 11 at 4–6.) 	Respondents argue that Petitioner’s “detention is mandated by section
1225(b)(2) until the conclusion of his removal proceedings,” and that “even if the Court
infers a constitutional right against prolonged mandatory detention, Petitioner’s claim still
fails.” (Doc. 8 at 4–9.)
The Court agrees with Petitioner that an unreasonably prolonged detention under
§ 1225(b) without a bond hearing violates due process, and that Petitioner’s detention has
become unreasonably prolonged.
A. 	Due Process
Respondents argue that the Supreme Court “addressed the due process rights of . . .
inadmissible arriving noncitizens seeking initial entry into the United States” and “stated
that such individuals have no due process rights ‘other than those afforded by statute.’”
(Doc. 8 at 6 (quoting Dep’t of Homeland Sec. v. Thuraissigiam, 591 U.S. 103, 107 (2020).)
“Following the Supreme Court’s decision in Thuraissigiam, some district courts
2 Respondents also argue that the Court lacks jurisdiction to hear the Petition under
8 U.S.C. § 1252(g). (Doc. 8 at 3–4.) The Court has consistently rejected this argument,
see Constantinovici v. Bondi, 806 F. Supp. 3d 1155, 1161–62 (S.D. Cal. 2025), and does
so again here for the same reasons. 	Petitioner “challenges only violations of ICE’s
mandatory duties under the Constitution.” 	(Doc. 11 at 3.) 	He is thus enforcing his
“constitutional rights to due process in the context of the removal proceedings—not the
legitimacy of the removal proceedings or any removal order.” 	Garcia v. Noem, 803 F.
Supp. 3d 1064, 1074 (S.D. Cal. 2025) (emphasis in original).
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have adopted Respondents’ reasoning to dismiss or deny habeas petitions in the context of
arriving aliens subject to mandatory detention under Section 1225(b)(1).” Gao v. LaRose,
805 F. Supp. 3d 1106, 1110 (S.D. Cal. 2025); see Mendoza-Linares v. Garland, Case No.:
21-cv-1169-BEN (AHG), 2024 WL 3316306, at *2 (S.D. Cal. June 10, 2024) (“Petitioner
has no Fifth Amendment right to a bond hearing pending his removal proceedings.”);
St. Charles v. Barr, 514 F. Supp. 3d 570, 579 (W.D.N.Y. 2021) (same); Petgrave v.
Aleman, 529 F. Supp. 3d 665, 667 (S.D. Tex. 2021) (same).
“Most courts have ruled otherwise.” Gao, 805 F. Supp. 3d at 1110 (collecting cases);
accord Abdul-Samed v. Warden of Golden State Annex Det. Facility, Case No. 1:25-cv-
00098-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 citizens
detained under 8 U.S.C. § 1225(b), . . . essentially 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.”); 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 thus “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.” Kydyrali v. Wolf, 499 F. Supp. 3d 768,
772 (S.D. Cal. 2020).
B. 	Prolonged Detention
Petitioner surveys the different approaches that courts have taken in analyzing
whether and when detention becomes unreasonably prolonged, and argues that, under any
of those approaches, Petitioner is entitled to a bond hearing. (See Doc. 7 at 7–9.) Although
Respondents disagree that the Court should reach this issue, they argue that, if the Court
reaches it, the three-factor balancing test in Lopez v. Garland, 631 F. Supp. 3d 870, 879
(E.D. Cal. 2022), is the proper framework for analyzing a due process challenge to
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prolonged detention. 	(Doc. 8 at 7–9.) 	The Court notes, however, that the Lopez court
analyzed those factors in the § 1226 context. 	See Lopez, 631 F. Supp. 3d at 879 (“To
determine whether § 1226(c) detention has become unreasonable . . . .”). 	Therefore, the
Court applies the six-factor balancing test used by courts analyzing prolonged detention
under § 1225(b). 	See Kydyrali, 499 F. Supp. 3d at 773. 	These factors share significant
overlap with the Lopez factors, and the Parties have adequately briefed them.
Under this test, the Court considers:
(1) the total length of detention to date; (2) the 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.
Gao, 805 F. Supp. 3d at 1111.
As to the first factor, which has been described as “the most important,” Banda v.
McAleenan, 385 F. Supp. 3d 1099, 1118 (W.D. Wash. 2019), Petitioner has been detained
for over 14 months. 	(See Zhakuov Decl. ¶ 1.) 	Respondents argue that “Petitioner’s
detention of fourteen months falls significantly short of the length courts have found to
raise due process concerns.” (Doc. 8 at 7 (collecting cases finding detention unreasonably
prolonged after two to three years).) 	As another court in this District noted, though,
“[c]ourts have found detention over seven months without a bond hearing weighs toward
a finding that it is unreasonable.” Abdul Kadir v. Larose, Case No.: 25cv1045-LL-MMP,
2025 WL 2932654, at *5 (S.D. Cal. Oct. 15, 2025) (collecting cases and finding that a
nearly 13-month detention weighed in favor of the petitioner). 	And as Respondents
themselves note, “‘[i]n general, as detention continues past a year, courts become
extremely way of permitting continued custody absent a bond hearing.’” 	(Doc. 8 at 7
(quoting Sibomana v. LaRose, Case No.: 3:22-cv-933-LL-NLS, 2023 WL 3028093, at *4
(S.D. Cal. Apr. 20, 2023).) Having reviewed these cases, the Court finds that this factor
favors Petitioner.
As to the second factor, Petitioner argues that although his merits hearing occurred
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on January 12, 2026, he “has reason to anticipate significant future detention” because he
has filed an appeal with the BIA. (Doc. 7 at 8.) The Court finds that the “undetermined,
but likely significant, period of mandatory detention through the appeals process” weighs
in favor of Petitioner. 	Gao, 805 F. Supp. 3d at 1111; accord Abdul Kadir, 2025 WL
2932654, at *5; Masood v. Barr, Case No. 19-cv-07623-JD, 2020 WL 95633, at *3 (N.D.
Cal. Jan. 8, 2020) (“The BIA appeal . . . [is a] perfectly legitimate proceeding[] he is legally
entitled to pursue,” and the respondents “cannot predict with any degree of confidence
when the BIA appeal will be resolved,” which “could lead to further proceedings that might
take up many more months, or even years.”).
As to 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). Petitioner attests that
the conditions at Otay Mesa Detention Center make him “feel like [he is] in prison.”
(Zhakuov Decl. ¶ 8; Doc. 7 at 9 (collecting cases describing the conditions at Otay Mesa
Detention Center).) As multiple other courts have found, detention at Otay Mesa Detention
Center is “indistinguishable from penal confinement.” 	Kydyrali, 499 F. Supp. 3d at 773
(citation omitted). This factor weighs in Petitioner’s favor.
As to the fourth and fifth factors, the Court finds that neither Petitioner nor
Respondents caused delays in the removal proceedings. 	Although Petitioner claims that
there “were multiple continuances that were not the fault of Petitioner,” an immigration
judge made a decision regarding several of Petitioner’s requests for relief on January 12,
2026. 	(Doc. 8 at 2; Zhakuov Decl. ¶ 5.); see Gao, 805 F. Supp. 3d at 1111 (finding no
delay caused by the government where the petitioner “received a merits hearing before an
immigration judge less than seven months after his arrest”).
As to the sixth factor, Petitioner’s applications for asylum, withholding of removal,
and CAT relief were all previously denied. (Doc. 8 at 2; Zhakuov Decl. ¶ 5.) This makes
it more likely that the removal proceedings will result in a final order of removal. Cf. Abdul
Kadir, 2025 WL 2932654, at *5 (finding that the petitioner’s grant of asylum was a strong
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indication that he would not receive a final order of removal). 	This weighs against
Petitioner.
Three of the factors, including “the most important one,” weigh in Petitioner’s favor,
and only one of the factors weighs against him. Therefore, the Court finds that Petitioner’s
detention under § 1225(b) has become unreasonably prolonged and that due process
requires that he be provided with a bond hearing. In light of this finding, the Court declines
to reach the remaining grounds for relief raised in the Petition.
C. 	Request for Further Remedies
Petitioner also argues that “attacks on [immigration judge] independence under the
current administration have severely compromised [their] neutrality. As a result, there is a
serious risk that an [immigration judge] will order [Petitioner’s] continued detention even
if he poses no danger or flight risk.” 	(Doc. 7 at 10–14 (citing cases, news articles, and
statistics indicating a purge of immigration judges throughout the country).) 	Petitioner
claims that the “Otay Mesa [immigration judges’] resistance to granting bond therefore
accords with the larger movement to eliminate or silence [immigration judges] who side
with immigrants, while bringing those that remain into line with the administration’s
priorities.” (Id. at 15.) Therefore, Petitioner requests that he be immediately released, or
that this Court conduct his bond hearing. (Id. at 15–17.)
The declaration upon which Petitioner relies was filed by former Immigration and
Customs Enforcement counsel Jorge Artieda, who attested to “a seismic shift in bond
hearing outcomes for individuals who had been granted federal habeas relief and ordered
§ 1226(a) bond hearings . . . in the [district court] of Virginia.” (Doc. 7 at 10 (citing Doc.
7-1 at 5–11).) The district court did order Petitioner’s immediate release in that case, as it
had “no faith that the Government would comply with an order to hold a bond hearing.”
Briceno Solano v. Mason, — F. Supp. 3d —, 2026 WL 311624, at *20 (S.D. W. Va. Feb.
4, 2026). Based on the Court’s observations in nearly 100 habeas petitions over which it
has presided in the last five months, that has not been the case in this District. 	See, e.g.,
Palacios Trinidad v. Bondi, 3:26-cv-00340-RBM-JLB, ECF No. 8 (S.D. Cal. Feb. 3, 2026)
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(joint status report indicating that a bond hearing was scheduled for the petitioner); Kumar
v. LaRose, 3:26-cv-00490-RBM-SBC, ECF No. 9 (S.D. Cal. Feb. 15, 2026) (joint status
report indicating that an immigration judge ordered the petitioner released on bond);
Gosselin Cruz v. LaRose, 3:26-cv-00407-RBM-BJW, ECF No. 8 (S.D. Cal. Feb. 23, 2026)
(same). 	Accordingly, the Court will not order Petitioner’s immediate release, nor will it
hold its own custody hearing.
IV. 	CONCLUSION
For the foregoing reasons, the Petition is GRANTED. Respondents are ORDERED
to arrange an individualized bond hearing for Petitioner before an immigration judge within
ten (10) days of entry of this Order to determine whether his continued detention is
warranted. 	Respondents shall bear the burden of establishing, by clear and convincing
evidence,3 that Petitioner poses a danger to the community or a risk of flight. If no hearing
occurs within ten (10) days of entry of this Order, Petitioner shall be released from
Respondents’ custody. On or before March 11, 2026, Respondents SHALL FILE a status
report indicating whether and when Petitioner received a bond hearing.
IT IS SO ORDERED.
DATE: February 25, 2026
___________________________________
HON. RUTH BERMUDEZ MONTENEGRO
UNITED STATES DISTRICT JUDGE
3 See Sadeqi v. LaRose, — F. Supp. 3d —, 2025 WL 3154520, at *4 (S.D. Cal. Nov. 12,
2025) (“Petitioner is entitled to a prompt and individualized bond hearing, at which
Respondents must justify her continued detention by a showing of clear and convincing
evidence that Petitioner would likely flee or pose a danger to the community if released.”)
(citing Singh v. Holder, 638 F.3d 1196, 1203 (9th Cir. 2011), abrogated on other grounds
by Jennings v. Rodriguez, 583 U.S. 281 (2018) (explaining that “the substantial liberty
interest at stake” warranted placing the burden on the government to “prove by clear and
convincing evidence that [a noncitizen] is a flight risk or a danger to the community to
justify denial of bond”).
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