Kazybayeva v. Warden of Otay Mesa Detention Center

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
AIGUL KAZYBAYEVA,
Petitioner,
v.
WARDEN OF OTAY MESA
DETENTION CENTER,
Respondent.
Case No.: 26-cv-0421-GPC-MMP
ORDER GRANTING PETITION
FOR WRIT OF HABEAS CORPUS
[ECF No. 1]
Before the Court is Petitioner’s petition for a writ of habeas corpus. ECF No. 1.
Respondents have responded in opposition to the petition, ECF No. 3, and Petitioner has
filed a traverse, ECF No. 5. For the reasons outlined below, the petition is GRANTED and
the Court ORDERS Petitioner’s IMMEDIATE release.
BACKGROUND
Petitioner, a citizen of Kazakhstan, has been residing and working within the United
States since arriving with her children on July 9, 2022. ECF No. 1, at 6; ECF No. 3, at 2;
ECF No. 5, ¶ 1. Petitioner was detained upon her initial entry into the United States but
was released on parole that same day. ECF No. 3, at 1. Petitioner was issued a Notice to
Appear on September 19, 2022. ECF No. 3-1, at 3. On December 21, 2022, Petitioner and
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her children applied for asylum and for withholding of removal. ECF No. 5, ¶ 2; ECF No.
3-1, at 3. On March 29, 2023, an immigration judge dismissed Petitioner’s immigration
case. ECF No. 5, ¶ 3; ECF No. 3-1, at 3.
Since entering the United States, Petitioner has complied with all conditions of her
parole, appeared for ICE check-ins, received work authorization, received a California
driver’s license and a U.S. Social Security Card, and applied for asylum. Id. ¶ 5.
On November 24, 2025, Petitioner and her daughter were detained when they
crossed into a military base while driving for Uber. ECF No. 1, at 6. At that time, Petitioner
alleges that ICE terminated Petitioner’s parole without notice. Id. Petitioner has been
detained since and has not been provided with a bond hearing. Id.
Petitioner now seeks a writ of habeas corpus from this Court ordering her immediate
release or, in the alternative, an immediate bond hearing before an immigration judge. ECF
No. 1, at 7.
LEGAL STANDARD
Under 28 U.S.C. § 2241, a writ of habeas corpus may be granted to any petitioner
who demonstrates that she 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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DISCUSSION
I. 	Petitioner’s Detention and Release Proceedings are Governed by § 1226
Respondents spend the bulk of their opposition arguing that Petitioner—a noncitizen
detained in the interior of the country who has been present in the United States for three
and a half years—is subject to mandatory detention under 8 U.S.C. § 1225(b) rather than
permissive detention under 8 U.S.C. § 1226(a). ECF No. 3, at 2. Specifically, Respondents
allege that the “plain language” of the statute—which provides for mandatory detention of
“an alien who is an applicant for admission” who is “seeking admission,” 8 U.S.C.
§ 1225(b)(2)(A)—applies to all individuals present in the United States who have not been
admitted. ECF No. 3, at 2.
This argument has been rejected by district courts nationwide. See, e.g., Rodriguez
v. Bostock, No. 3:25-CV-05240-TMC, 2025 WL 2782499, at *1 (W.D. Wash. Sept. 30,
2025) (collecting cases); Mosqueda v. Noem, No. 25-CV-2304 CAS (BFM), 2025 WL
2591530, at *5 (C.D. Cal. Sept. 8, 2025); Esquivel-Ipina v. LaRose, No. 25-CV-2672 JLS
(BLM), 2025 WL 2998361, at *5 (S.D. Cal. Oct. 24, 2025); Quijada Cordoba v. Knight, -
--F. Supp. 3d---, 2025 WL 3228945, at *6 (D. Id. Nov. 19, 2025); Lopez v. Warden, Otay
Mesa Det. Ctr., No. 25-CV-2527-RSH-SBC, 2025 WL 3005346, at *3 (S.D. Cal. Oct. 27,
2025). This Court has previously held that, given the “seeking admission” language in
§ 1225(b)(2) and the government’s own longstanding practice and interpretation of
§§ 1225(b) and 1226(a), noncitizens such as Petitioner are not “seeking admission” under
§ 1225(b)(2). See, e.g., Lagarda-Vega v. Noem, No. 3:25-CV-02970-GPC-DDL, 2025 WL
3558931, at *4-*7 (S.D. Cal. Dec. 11, 2025).
Further, Respondents’ interpretation of § 1225(b) and policy of subjecting all
inadmissible individuals like Petitioner to the mandatory detention provisions of § 1225(b)
have been declared unlawful. Bautista v. Santacruz, No. 5:25-CV-01873-SSS-BFM, 2025
WL 3713987 (C.D. Cal. Dec. 18, 2025), judgment entered sub nom. Maldonado Bautista
v. Noem, No. 5:25-CV-01873-SSS-BFM, 2025 WL 3678485 (C.D. Cal. Dec. 18, 2025).
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Indeed, in responding to Petitioner’s daughter’s petition for a writ of habeas corpus—filed
the same day as Petitioner’s—Respondents acknowledged that, given the Bautista final
judgment, Petitioner’s daughter was detained under § 1226(a) rather than § 1225(b).
Karmamoldoyeva v. Warden of Otay Mesa Detention Center, Case No. 3:26-cv-00423-
GPC-MSB, ECF No. 4, at 2. It is not clear why Respondents have decided to consider
Petitioner’s status differently from her daughter’s, given the identical immigration history
the two share. Nevertheless, for the reasons outlined above, the Court rejects Respondents’
arguments that 8 U.S.C. § 1225(b) applies to Petitioner’s detention, as she was not an alien
“seeking admission” at the time of her detention. Thus, Petitioner is not subject to
mandatory detention under § 1225(b)(2), and her removal proceedings are governed by
§ 1226(a).
II. 	Petitioner’s Detention Violates Her Due Process Rights
Petitioner argues that Respondents violated the Due Process Clause of the Fifth
Amendment, the Immigration and Nationality Act (“INA”), and the Administrative
Procedure Act (“APA”) by revoking Petitioner’s parole and re-detaining Petitioner without
notice, reason, or an opportunity to be heard. ECF No. 1, at 6.
Respondents 	counter 	that, 	because 	Petitioner’s 	immigration 	proceedings 	had
previously been dismissed in 2023, Petitioner lacked any parole status at the time she was
detained in 2025.1 In so arguing, Respondents seem to equate Petitioner’s protected liberty
interest with her status as a parolee. The Court disagrees.
1 Though it does not impact the Court’s analysis, the Court notes that Respondents’
allegations that Petitioner “did not have any parole status” at the time she was re-detained
in 2025 contradicts Respondents’ own documentation of the event. Per Respondents’ own
filings, on the day Petitioner was re-detained, a Deportation Officer wrote “[Petitioner’s]
parole will be terminated upon issuance of a Notice to Appear (NTA). [Petitioner] will be
served with a Notice to Appear (NTA) and remain in DHS custody pending removal
proceedings.” ECF No. 3-1, at 4.
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Under the Due Process Clause of the Fifth Amendment, no person shall be
“deprived of life, liberty, or property, without due process of law.” U.S. Const. Amend. V.
Indeed, “[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). Due process rights apply to
noncitizens, including those whose presence in the United States is unlawful. Id. at 693.
As applied to cases like Petitioner’s: “even when ICE has the initial discretion to
detain or release a noncitizen pending removal proceedings, after that individual is released
from custody [he] has a protected liberty interest in remaining out of custody.” Pinchi v.
Noem, 792 F. Supp. 3d 1025, 1032 (N.D. Cal. 2025). See also Doe v. Becerra, No. 2:25-
CV-00647-DJC-DMC, 2025 WL 691664, at *4 (E.D. Cal. Mar. 3, 2025); Padilla v. U.S.
Immigr. & Customs Enf't, 704 F. Supp. 3d 1163, 1172 (W.D. Wash. 2023); Ortiz Donis v.
Chestnut, No. 1:25-CV-01228-JLT-SAB, 2025 WL 2879514, at *11 (E.D. Cal. Oct. 9,
2025). In fact, the government’s initial release of an individual from custody “creates an
‘implicit promise’ that the individual’s liberty will be revoked only if they fail to abide by
the conditions of their release.” Calderon v. Kaiser, No. 25-cv-06695-AMO, 2025 WL
2430609, at *2 (N.D. Cal. Aug. 22, 2025) (quoting Morrissey v. Brewer, 408 U.S. 471, 482
(1972)). An initial release from ICE custody further reflects “a determination by the
government that [an individual is] neither a flight risk nor a danger to the community.”
Pinchi, 792 F. Supp. 3d at 1034; Salcedo Aceros v. Kaiser, No. 25-CV-06924-EMC
(EMC), 2025 WL 2637503, *7 (N.D. Cal. Sept. 12, 2025). Thus, DHS may generally not
re-arrest a previously released noncitizen “absent a change in circumstances.” Salcedo
Aceros 2025 WL 2637503, at *1 (citing Panosyan v. Mayorkas, 854 F. App'x 787, 788 (9th
Cir. 2021); Saravia v. Sessions, 280 F. Supp. 3d 1168, 1197 (N.D. Cal. 2017)).
When Petitioner was released from her initial detention on parole, she “took with
[her] a liberty interest which is entitled to the full protections of due process.” Ramirez
Tesara v. Wamsley, 800 F. Supp. 3d 1130, 1136 (W.D. Wash. 2025); see also Doe v.
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Becerra, 787 F. Supp. 3d 1083, 1093 (E.D. Cal. 2025) (“The Supreme Court has repeatedly
recognized that individuals who have been released from custody, even where such release
is conditional, have a liberty interest in their continued liberty”). Counter to Respondents’
argument, “this private interest did not expire along with Petitioner’s parole agreement.”
Ramirez Tesara, 800 F. Supp. 3d at 1136. Rather, “[o]nce established, Petitioner's interest
in liberty is a constitutional right which may only be revoked through methods that comport
with due process, such as a hearing in front of a neutral party to determine whether
Petitioner's re-detainment is warranted.” Id.
Having determined that Petitioner had a maintained a protected liberty interest in
remaining out of custody, the Court must next determine “what process is due.” Morrissey,
408 U.S. at 481.
“The constitution typically ‘requires some kind of a hearing before the State deprives
a person or liberty or property.’” G.S. v. Bostock, No. 2:25-CV-01255-JNW-TLF, 2025
WL 3014274 (W.D. Wash. Oct. 8, 2025), report and recommendation adopted sub
nom. G.S. v. Bostock, No. 2:25-CV-01255-JNW-TLF, 2025 WL 3014035 (W.D. Wash.
Oct. 28, 2025) (quoting Zinermon v. Burch, 494 U.S. 113, 127 (1990)). To determine what
procedures are required by due process, the Court evaluates the three-part test set forth in
Mathews v. Eldridge, 424 U.S. 319, 334-335 (1976). See Ortiz Donnis, 2025 WL 2879514,
at *12. Under Mathews, a court must consider (1) “the private interest” at stake, (2) “the
risk of an erroneous deprivation” without additional procedures and “the probable value .
. . of additional or substitute procedural safeguards,” and (3) the “Government’s interest,
including the function involved and the fiscal and administrative burdens imposed by the
additional procedures.” 424 U.S. at 335.
As to the first Mathews factor, Petitioner has a significant private interest in her
continued liberty. Indeed, “the more than [three] years that she has spent out of custody
since ICE initially released her have only heightened her liberty interest in remaining out
of detention.” Pinchi v. Noem, 792 F. Supp. 3d 1025, 1034 (N.D. Cal. 2025). Thus, this
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factor favors Petitioner. See Salcedo 2025 WL 2637503, *12; Ortiz Donis, 2025 WL
2879514, at *12; Pinchi, 792 F. Supp. 3d at 1034-35.
Turning to the second Mathews factor, “it is clear that there is a significant risk that
the government will erroneously deprive [Petitioner] of that liberty interest if it does not
provide her with a pre-detention hearing.” Pinchi, 792 F. Supp. 3d at 1035. Where, as here,
Petitioner did not receive any bond or custody hearing upon her re-detention, “‘the risk for
erroneous deprivation [of liberty] is high’ because neither the government nor [Petitioner]
has had an opportunity to determine whether there is any valid basis for her detention.” Id.
(quoting Singh v. Andrews, No. 1:25-CV-00801, 2025 WL 1918679 (E.D. Cal. July 11,
2025)). Further, courts have noted that “civil immigration detention must be ‘nonpunitive
in purpose’ and bear a ‘reasonable relation’ to the authorized statutory purposes of
preventing flight and danger to the community.” G.S. v. Bostock, 2025 WL 3014274, at *8.
By releasing Petitioner on bond in 2022, immigration officers determined that she was
neither a flight risk nor a danger to her community. See id.; Ortiz Donis, 2025 WL 2879514,
at *1; Pinchi, 792 F. Supp. 3d at 1034. Respondents have not alleged that there has been a
change in circumstance since Petitioner’s 2022 release, other than the dismissal of
Petitioner’s immigration proceedings in 2023. Thus, the risk of erroneous deprivation is
particularly high in Petitioner’s case, as there is no evidence of changed circumstances or
that Petitioner is a danger or flight risk. Accordingly, this factor also favors Petitioner.
Finally, the Government “has failed to show any countervailing interest against
providing a pre-detention hearing.” G.S. v. Bostock, 2025 WL 3014274, at *9; Salcedo
Aceros, 2025 WL 2637503, at *12. Indeed, “in immigration court, custody hearings are
routine and impose a minimal cost.” Singh, 2025 WL 1918679, at *8 (internal quotation
marks and citation omitted). There is also no concern that a hearing will delay or obstruct
Respondents efforts to remove Petitioner, as Petitioner has already been placed in full
removal proceedings. See ECF No. 3, at 2, G.S. v. Bostock, 2025 WL 3014274, at *9;
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Salcedo Aceros, 2025 WL 2637503, at *12. In sum, the Government’s interest in detaining
Petitioner without a hearing is low. Singh, 2025 WL 1918679, at *8.
Each of the Mathews factors favors Petitioner. Thus, Petitioner was entitled to a pre-
deprivation bond hearing. The Government detained Petitioner, without explanation and
without notice, despite its own prior determination that Petitioner was not a flight risk and
posed no danger to the community. “Under these circumstances, given the government’s
conduct, the substantial liberty interests held by [Petitioner], and the fact that the
government has no evidence and does not contend that [Petitioner] presents [a] risk or flight
or to public safety, a pre-deprivation bond hearing is warranted.” Salcedo 2025 WL
2637503, *12. At such a hearing, the government must demonstrate to a neutral
decisionmaker by clear and convincing evidence that re-detention is necessary to prevent
danger to the community or flight. Pinchi, 792 F. Supp. 3d at 1038; see also Ortiz Donis,
2025 WL 2879514, at *15. Put simply: “since it is the government that initiated re-
detention, it follows that the government should be required to bear the burden of providing
a justification for the re-detention.” Ortiz Donis, 2025 WL 2879514, at *15.2
Respondents argue that, if this Court concludes that Petitioner is detained under
8 U.S.C. § 1226(a) rather than § 1225(b), a bond hearing is the appropriate remedy. ECF
No. 3, at 4. However, for the reasons discussed above, a bond hearing is insufficient to cure
the due process violations faced by Petitioner. Respondents have failed to meaningfully
address Petitioner’s due process claims beyond indicating that she no longer held parole
status when she was re-detained in 2025. Accordingly, the Court is not persuaded by
Respondents’ argument and instead orders Petitioner’s release.
2 Having reached this conclusion on Petitioner’s due process and INA claims, the Court
declines to decide the merits of Petitioner’s APA claims.
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CONCLUSION
Based on the reasoning above, the Court ORDERS:
1. Petitioner’s Petition for Writ of Habeas Corpus is GRANTED.
2. Because the government has no evidence that Petitioner poses a flight risk or
danger to the community, Petitioner SHALL be released IMMEDIATELY
from DHS custody. DHS SHALL NOT impose any additional restrictions on
him, such as electronic monitoring, unless that is determined to be necessary at a
later custody hearing.
3. Respondents SHALL NOT re-arrest or re-detain Petitioner absent compliance
with constitutional protections, which include, at a minimum, pre-deprivation
notice of at least seven days before a pre-deprivation hearing at which the
government will bear the burden of demonstrating by clear and convincing
evidence that Petitioner is likely to flee or pose a danger to the community if not
detained.3
3 In her prayer for relief, Petitioner requests an award of costs and reasonable attorney’s
fees pursuant to the Equal Access to Justice Act. ECF No. 1, at 13. That request is DENIED
without prejudice. Petitioner’s counsel may submit an appropriate EAJA fee application
within 30 days of the issuance of this Order.
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