Case Name in Immigration Case - Unavailable

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
NICOLAE JEMNA,
Petitioner,
v.
WARDEN OF OTAY MESA
DETENTION CENTER,
Respondent.
Case No.: 3:26-cv-00725-RBM-VET
ORDER DENYING PETITION FOR
A WRIT OF HABEAS CORPUS
UNDER 28 U.S.C. § 2241
[Doc. 1]
Pending before the Court is Petitioner Nicolae Jemna’s (“Petitioner”) Petition for a
Writ of Habeas Corpus Under 28 U.S.C. § 2241 (“Petition”). (Doc. 1.) For the reasons set
forth below, the Petition is DENIED.
I. 	BACKGROUND
Petitioner, a native and citizen of Romania, entered the United States on June 4,
2024. (Doc. 6 at 2.) 1 Petitioner “was issued a B-2 tourist visa which expired on December
3, 2024.” (Id.; see Doc. 6-1 at 3; Doc. 1 at 17.) Petitioner filed an asylum claim on October
11, 2024, and was granted employment authorization with an expiration date of January
30, 2030. (Doc. 7 ¶ 2; Doc. 6-1 at 3.)
1 The Court cites the CM/ECF electronic pagination unless otherwise noted.
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On December 12, 2025, Petitioner was detained by Immigration and Customs
Enforcement (“ICE”) while delivering a package at the Marine Corps Base Camp
Pendleton. 	(Doc. 7 ¶ 3; see Doc. 6-1 at 2.) 	Petitioner was issued a Notice to Appear
(“NTA”) which charged him as deportable under 8 U.S.C. § 1227(a)(1)(B) for overstaying
his visa, or “as an individual who was admitted to the United States but remained for a time
longer than permitted by law.” 	(Doc. 6 at 2; see Doc. 1 at 17.) 	The NTA also initiated
removal proceedings under 8 U.S.C. § 1229a against Petitioner.
On December 19, 2025, Petitioner had a bond hearing before an immigration judge
(“IJ”) pursuant to 8 U.S.C. § 1226(a). (Doc. 6 at 2; see Doc. 1 at 10.) At that hearing, the
IJ denied Petitioner’s release on bond on the merits based on a finding of “Danger & Flight
Risk.” 	(Doc. 1 at 10.) 	On December 26, 2025, Petitioner appealed the IJ’s decision to
deny bond to the Board of Immigration Appeals (“BIA”). (Doc. 1 at 13.) “The appeal is
still pending.” 	(Doc. 6 at 3.) 	Petitioner’s removal proceedings remain ongoing, and he
remains detained at the Otay Mesa Detention Center. (Id. at 2.)
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).
III. 	DISCUSSION
Petitioner claims he is being detained in violation of the Fifth Amendment’s Due
Process Clause, the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1231(a)(6) as
interpreted by the Supreme Court’s decision in Zadvydas v. Davis, 533 U.S. 678, 693, 695
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(2001), and the Administrative Procedure Act (“APA”). 	(Doc. 1 at 6–7.) 	Respondents
seek to dismiss this matter “[b]ecause Petitioner was provided a bond hearing under 8
U.S.C. § 1226(a) and he has not exhausted his administrative remedies.” (Doc. 6 at 6.)
A. 	Detention Authority
Respondents maintain that Petitioner is detained under 8 U.S.C. § 1226(a) (Doc. 6
at 3), while Petitioner claims he “is being detained pursuant to [§] 1225(b)” (Doc. 7 at 10).
As the statutory provision governing Petitioner’s detention determines what procedures
Respondents must follow, the Court will address this issue first.
Section 1226 governs the arrest, detention, and release of noncitizens who are
detained “pending a decision on whether the [noncitizen] is to be removed from the United
States.” 	8 U.S.C. § 1226(a). 	“Once [a noncitizen] has a final removal order that is not
subject to a judicial stay, detention authority shifts to 8 U.S.C. § 1231(a).” Rodriguez Diaz
v. Garland, 53 F.4th 1189, 1197 (9th Cir. 2022). 	In Zadvydas, the Supreme Court
construed § 1231(a)(6) to limit the time a noncitizen can be detained after receiving an
order of removal. 533 U.S. at 682. The Ninth Circuit has extended the Zadvydas doctrine
and “conclude[d] that § 1226(a), like § 1231(a)(6), also does not authorize indefinite
detention.” Prieto-Romero v. Clark, 534 F.3d 1053, 1063 (9th Cir. 2008). In doing so, the
Ninth Circuit “construe[d] the Attorney General’s detention authority under § 1226(a) as
limited to the ‘period reasonably necessary to bring about [a noncitizen’s] removal from
the United States,’ even if continued detention in any particular litigant’s case would not
pose a constitutional problem.” Id. (quoting Zadvydas, 533 U.S. at 689).
In this case, Petitioner’s asylum application is still pending and he has not been
ordered removed. 	Respondents assert Petitioner is subject to detention under § 1226(a)
because he was charged as removable as an individual who overstayed his visa and
consequently placed in removal proceedings under 8 U.S.C. § 1229a. 	(Doc. 6 at 3; see
Doc. 1 at 17.) Because a decision is pending “on whether . . . [he] is to be removed from
the United States,” Petitioner is detained pursuant to § 1226(a). See Rodriguez v. Robbins,
804 F.3d 1060, 1084-85 (9th Cir. 2015) (finding that a noncitizen “with no criminal record
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[who] entered the Untied States on a tourist visa and affirmatively applied for asylum” was
subject to § 1226), rev’d on other grounds by Jennings v. Rodriguez, 583 U.S. 281 (2018)).
B. 	Prolonged Detention
While indefinite detention is also not authorized under § 1226(a), Petitioner fails to
show that his detention is indefinite or unconstitutionally prolonged. In support of his APA
claim, Petitioner argues that he “faces prolonged detention for an indefinite period of time
pending the final adjudication of his asylum claim, [his] pending appeal with the [BIA],
and possible appeal in the 9th Circuit Court depending on BIA decision.” (Doc. 7 at 14.)
However, Petitioner has been in detention for about three months and has made no
showing that he is “stuck in a ‘removable-but-unremovable limbo,’ as the petitioners in
Zadvydas were.” 	Prieto-Romero, 534 F.3d at 1063. 	Petitioner is also not subject to an
“indefinite period of time” in detention because Respondents’ “authority under [§ 1226(a)]
has a ‘definite termination point’ and ends at ‘the conclusion of removal proceedings.’”
Avilez v. Garland, 69 F.4th 525, 535 (9th Cir. 2023) (quoting Jennings v. Rodriguez, 583
U.S. 281, 304 (2018)). Although Petitioner’s “detention lacks a certain end date, . . . this
uncertainty alone does not render his detention indefinite in the sense the Supreme Court
found constitutionally problematic in Zadvydas.” Id. (emphasis in original). Ground Two
of the Petition for violation of 8 U.S.C § 1231(a)(6) and prolonged detention in violation
of Zadvydas is therefore DENIED. 2
C. 	Substantive Due Process
Section 1226 affords the government significant discretion; so long as the detained
noncitizen 	is 	not 	covered 	by 	§ 	1226(c)—which 	requires 	mandatory 	detention 	for
noncitizens who have been charged with certain crimes—the Attorney General may release
the noncitizen on “bond” or “conditional parole.” 8 U.S.C. § 1226(a)(1)–(2). Release is
2 To the extent Petitioner’s APA claim is premised on his argument that he “faces
prolonged detention for an indefinite period of time” (Doc. 7 at 14), Ground Three of the
Petition is DENIED for the same reasons.
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proper where the noncitizen “satisfies [the government] that [he] will not pose a danger to
the safety of other persons or of property and is likely to appear for any scheduled
proceeding.” 	§ 1226(a)(4). 	The noncitizen has the right to contest the agency’s initial
custody determination, the denial or amount of bond, before an IJ. 8 C.F.R. § 1236.1(d)(1).
Individuals detained under § 1226(a) are entitled to “receive bond hearings at the outset of
detention.” Jennings, 583 U.S. at 306 (citing 8 C.F.R. § 236.1(d)(1)).
Here, Petitioner was detained and charged as removable under INA § 237(a)(1)(B)
“as a nonimmigrant [who] remained in the United States for a time longer than permitted”
after his initial admission on a B-2 tourist visa. (Doc. 6-1 at 6.) As Petitioner is subject to
detention under § 1226(a), he is entitled to a bond hearing before an IJ under the applicable
regulations to challenge the agency’s initial custody determination.
Petitioner argues that “ICE has violated [his] due process rights by denying him an
individualized custody review to which [he] is entitled under ICE policy.” 	(Doc. 7 at 8,
11–12; Doc. 1 at 6.) Yet, the record before the Court shows that Petitioner received a bond
hearing before an IJ on December 19, 2025. (See Doc. 1 at 11; Doc. 6 at 2.) Although the
IJ denied Petitioner’s release on bond, Petitioner was not denied a bond hearing altogether.
Petitioner also argues that 	he “was wrongfully refused release despite . . .
demonstrating that he is neither a danger to the community nor a flight risk.” (Doc. 7 at
12.) 	To the extent Petitioner contests the IJ’s factual determinations, the Court lacks
jurisdiction to “reweigh [the] evidence” on a challenge to an IJ’s bond decision and may
“only determine whether the [IJ] applied the correct legal standard.” 	Martinez v. Clark,
124 F.4th 775, 784 (9th Cir. 2024) (cleaned up).
Petitioner also failed to exhaust his administrative remedies. Petitioner appealed the
IJ’s bond denial with the BIA but seeks habeas review ahead of his pending appeal. “This
short cut was improper.” Leonardo v. Crawford, 646 F.3d 1157, 1160 (9th Cir. 2011). A
noncitizen “dissatisfied with the IJ’s bond determination” must ordinarily “file an
administrative appeal so that ‘the necessity of detention can be reviewed by . . . the BIA.’”
Id. (citation omitted). 	“When a petitioner does not exhaust administrative remedies, a
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district court ordinarily should either dismiss the petition without prejudice or stay the
proceedings until the petitioner has exhausted remedies, unless exhaustion is excused.” Id.
The Court “may waive the prudential exhaustion requirement if administrative remedies
are inadequate or not efficacious, pursuit of administrative remedies would be a futile
gesture, irreparable injury will result, or the administrative proceedings would be void.”
Hernandez v. Sessions, 872 F.3d 976, 988 (9th Cir. 2017) (cleaned up).
Petitioner, 	however, 	fails 	to 	raise 	any 	grounds 	for 	excusing 	the 	exhaustion
requirement. And nothing in the record shows that the administrative remedies available
are 	inadequate 	or 	inefficient. 	Indeed, 	release 	on 	bond 	falls 	within 	the 	agency’s
discretionary power and its special expertise. The BIA is therefore empowered to review
the IJ’s determination and there is no evidence that the appeal would not proceed in a timely
manner. 	As Petitioner’s release on bond was denied based on a finding that he was a
“Danger & Flight Risk” (see Doc. 1 at 10), there is also nothing in the record showing that
Petitioner’s appeal of the IJ’s bond denial is necessarily futile. 	Cf. Esquivel-Ipina v.
LaRose, — F. Supp. 3d —, 2025 WL 2998361, at *3–4 (S.D. Cal. Oct. 24, 2025) (finding,
like “other courts in this District . . . that exhaustion would be futile because the [BIA] is
obligated to apply the binding precedent of Matter of Yajure Hurtado, 29 I & N. Dec. 216
(BIA 2025) to find that detention is mandatory”).
Accordingly, 	Petitioner’s 	substantive 	due 	process 	claim 	is 	DISMISSED
WITHOUT PREJUDICE to Petitioner filing an amended petition that follows the
exhaustion of administrative remedies. See Leonardo, 646 F.3d at 1160.
D. 	Procedural Due Process
Respondents argue that, as required under § 1226(a)’s procedures, an IJ “convened
a bond hearing, reached a decision on the merits, and Petitioner has appealed the [IJ’s]
bond order.” (Doc. 6 at 3.) Petitioner claims the “relief [he] is entitled to is not limited to
a bond hearing.” (Doc. 7 at 7.) Specifically, Petitioner claims that “Respondents detained
[him] by revoking his admission” without notification, reasoning, or an opportunity to be
heard in violation of the Due Process Clause. (Id. at 9–17.)
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The Fifth Amendment guarantees that “[n]o person shall be . . . deprived of life,
liberty, or property, without due process of law.” U.S. Const. amend. V. “Freedom from
imprisonment—from government custody, detention, or other forms of physical restrain—
lies at the heart of the liberty that [the Due Process] Clause protects.” Zadvydas, 533 U.S.
at 690. “Even individuals who face significant constraints on their liberty or over whose
liberty the government wields significant discretion retain a protected interest in their
liberty.” Pinchi v. Noem, 792 F. Supp. 3d 1025, 1032 (N.D. Cal. 2025). “Procedural due
process imposes constraints on governmental decisions which deprive individuals of
‘liberty’ or ‘property’ interests within the meaning of the Due Process Clause of the Fifth
. . . Amendment.” Mathews v. Eldridge, 424 U.S. 319, 332 (1976).
To determine whether the procedures afforded to Petitioner are constitutionally
sufficient to satisfy the Due Process Clause, the Court considers: (1) the private interest
affected, (2) “the risk of an erroneous deprivation of such interest,” along with “the
probable value, if any, of additional or substitute procedural safeguards,” and (3) the
Government’s interest, including “the fiscal and administrative burdens that the additional
or substitute procedural requirement would entail.” Mathews, 424 U.S. at 334–35.
Many courts in the Ninth Circuit, including this Court, have found that “all three
Mathews factors support requiring a hearing before a noncitizen released from immigration
detention can be re-detained, even where detention is mandatory.” 	Duong v. Kaiser, 800
F. Supp. 3d 1030, 1039 (N.D. Cal. 2025). 	Relying on some of these courts’ decisions,
Petitioner contends he was entitled to notification, reasoning, and an opportunity to heard
as due process in the “revocation of [his] parole.” (Doc. 7 at 3; see id. 9–10 (citing Pinchi
v. Noem, 792 F. Supp. 3d 1025, 1034 (N.D. Cal. 2025); Noori v. LaRose, 807 F. Supp. 3d
1146, 1164 (S.D. Cal. 2025), and Alvarenga Matute v. Wofford, 807 F. Supp. 3d 1120,
1128 (E.D. Cal. 2025) (E.D. Cal. Oct. 3, 2025)).) 	However, these cases are readily
distinguishable because Petitioner was neither paroled nor conditionally released into the
United States. 	The record shows, and the parties do not dispute, that Petitioner was
admitted into the United States on a B-2 tourist visa which expired on December 3, 2024.
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(See Doc. 6-1 at 3–4; Doc. 7 at 2.) 	Nothing in the record indicates that Petitioner was
previously detained or released from ICE detention. As such, under the Mathews factors,
Petitioner’s case does not present the same due process concerns as those involving
noncitizens’ re-detention after their conditional release or parole was revoked.
Although Petitioner has a private interest in remaining free, he does not possess the
same liberty interest as noncitizens who were previously detained and released pursuant to
conditional release or parole. 	Cf. Juan B.P. v. Andrews, No. 1:26-cv-01475-TLN-CSK,
2026 WL 707468, at *3 (E.D. Cal. Mar. 13, 2026) (noting the petitioner’s protected liberty
interest arose not from his entry on a tourist visa, but from his release from ICE custody
on bond). 	Unlike conditional release or parole, Petitioner’s temporary initial admission
into the country did not depend on or require his compliance with any similar conditions.
Cf. Pinchi, 792 F. Supp. 3d at 1032 (“[T]he government’s decision to release an individual
from custody creates ‘an implicit promise,’ upon which that individual may rely, that their
liberty ‘will be revoked only if they fail to live up to the . . . conditions of release.”) (quoting
Morrissey, 408 U.S. at 482) (cleaned up). 	Nor did Petitioner’s admission on a B-2 visa
reflect a prior individualized danger and risk determination. 	Cf. Saravia v. Sessions, 280
F. Supp. 3d 1168, 1176 (N.D. Cal. 2017) (“Release reflects a determination by the
government that the noncitizen is not a danger to the community or a flight risk.”).
The risk of an erroneous deprivation of Petitioner’s liberty interest is also not as high
as in cases where noncitizens were conditionally released or paroled. 	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. Zadvydas,
533 U.S. at 690. 	A noncitizen’s conditional release or parole from ICE custody reflects
that immigration officers necessarily determined the noncitizen was neither a flight risk
nor danger to the community. Saravia, 280 F. Supp. 3d at 1176. In such cases, the risk of
erroneous deprivation without a pre-detention hearing is high due to the possibility that a
previously released noncitizen’s re-detention will not be pursuant to a valid state interest.
See Valencia Zapata, 801 F. Supp. 3d at 938. 	But in this case, there is no evidence that
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Respondents determined Petitioner was not a danger to the community or flight risk at any
point prior to his detention on December 9, 2025. 	And, as previously noted, Petitioner
received a bond hearing before an IJ about a week after he was initially detained. 	(See
Doc. 1 at 10.) There, the IJ found Petitioner posed a “Danger & Flight Risk.” (Id.) The
risk here is therefore readily distinguishable from the risk involved when a noncitizen “has
received virtually no procedural safeguards such as a bond or custody redetermination
hearing.” 	Kaur v. United States Dep’t of Homeland Sec., —F. Supp. 3d—, 2025 WL
3706724, at *5 (E.D. Cal. Dec. 22, 2025).
“Turning to the final Mathews factor, the Court notes that the government’s interests
in ‘protecting the public from dangerous criminal’ noncitizens and preventing noncitizens
from fleeing are ‘interests of the highest order.’” Otilio B.F. v. Andrews, 809 F. Supp. 3d
1038, 1055 (E.D. Cal. 2025) (quoting Rodriguez Diaz, 53 F.4th at 1208). “[T]hose interests
are adequately protected by having a neutral decisionmaker evaluate whether a noncitizen
presents those risks.” 	Id. 	Indeed, § 1226(a) provides for such protections. 	“A hearing
does not guarantee a noncitizen to release, it merely provides minimal procedural
safeguards to ensure that detention is proper.” 	Morales-Flores v. Lyons, No. 1:25-cv-
01640-TLN-EFB, 2025 WL 3552841, at *6 (E.D. Cal. Dec. 11, 2025). An IJ has done so
here, and Petitioner presented no grounds to question the IJ’s neutrality.
On balance, the Mathews factors show that Petitioner is entitled to a bond hearing
where Respondents must prove by clear and convincing evidence that he is a flight risk or
danger to the community. Because Petitioner has received a bond hearing under § 1226(a),
he fails to demonstrate that his detention violates his procedural due process rights.
IV. 	CONCLUSION
Based on the foregoing reasons, the Court ORDERS as follows:
1. Ground 	One 	for 	violation 	of 	substantive 	due 	process 	is 	DISMISSED
WITHOUT PREJUDICE. See Leonardo, 646 F.3d at 1160.
2. Ground One for violation of procedural due process is DENIED WITHOUT
PREJUDICE.
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3. Ground Two for violation of the INA is DENIED WITHOUT PREJUDICE.
4. Ground Three for violation of the APA is DENIED WITHOUT PREJUDICE.
IT IS SO ORDERED.
DATE: March 16, 2026
____________________________________
HON. RUTH BERMUDEZ MONTENEGRO
UNITED STATES DISTRICT JUDGE
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