1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 N.A., Case No.: 25-cv-2384-RSH-BLM

12 Petitioner,

ORDER GRANTING PETITION

13 v. FOR WRIT OF HABEAS CORPUS

14 CHRISTOPHER J. LAROSE, Senior Warden, Otay Mesa Detention Center, et al., 15 Respondents. 16 17 18 19 20 Petitioner N.A. seeks habeas relief from this Court pursuant to 28 U.S.C. § 2241. 21 ECF No. 1. Petitioner, an Iranian national, is detained by U.S. Customs and Immigration 22 Enforcement (“ICE”) at the Otay Mesa Detention Center in San Diego, California. Id. ¶¶ 23 1, 18. 24 This case presents the straightforward question of whether Petitioner’s detention is 25 lawful under the statute that Respondents invoke to justify that detention, 8 U.S.C. § 26 1225(b)(1)(B)(ii). The Court determines that her detention is not authorized by that statute, 27 and therefore grants the petition. 28 // 1 I. BACKGROUND 2 On September 13, 2025, Petitioner initiated this action by filing a petition for writ 3 of habeas corpus pursuant to 28 U.S.C. § 2241 challenging the lawfulness of her detention. 4 ECF No. 1. Petitioner names as respondents the warden of the detention center, the Director 5 of ICE’s San Diego Field Office for Enforcement and Removal, the Acting Director of 6 ICE, and the Secretary of the U.S. Department of Homeland Security (“DHS”). 7 Petitioner alleges that she entered the United States on October 29, 2024. Id. ¶ 2. She 8 was encountered that day by Border Patrol near Jacumba, California, and admitted that she 9 had crossed into the United States from Mexico and lacked legal entry documents. ECF 10 No. 4-1 at 3–5 (DHS Form I-213 describing circumstances of encounter).1 She was 11 arrested, taken into custody, and placed in full removal proceedings pursuant to 8 U.S.C. § 12 1229a. ECF No. 1 ¶¶ 2–3. DHS issued a Notice to Appear charging her with inadmissibility 13 under 8 U.S.C. § 1182(a)(6)(A)(i), which provides that “[a]n alien present in the United 14 States without being admitted or paroled, or who arrives in the United States at any time 15 or place other than as designated by the Attorney General, is inadmissible.” ECF No. 4-1 16 at 7. Petitioner was ordered to appear before an immigration judge for her next hearing. Id. 17 She was released on her own recognizance pursuant to 8 U.S.C. § 1226, and signed an 18 acknowledgement of the conditions of her release on DHS Form I-220A. ECF No. 4-1 at 19 11. 20 Petitioner asserts that after she was initially arrested and charged with removability, 21 she duly attended every immigration court hearing. ECF No. 1 ¶ 4. On or about January 22 29, 2025, she filed a DHS Form I-589 Application for Asylum, Withholding of Removal, 23 and protection under the Convention Against Torture; she filed a revised application on or 24 about March 7, 2025. Id. 25 Petitioner states that at an immigration court hearing on July 15, 2025, after having 26

27 1 All citations to electronic case filing (“ECF”) entries refer to the ECF-generated page 28 1 been placed in full removal proceedings and released on her own recognizance over eight 2 months prior, counsel for DHS moved to dismiss the removal proceedings against her. Id. 3 ¶ 22. DHS agents immediately took her into custody. Id. DHS issued a Notice of Expedited 4 Removal, which recited that pursuant to 8 U.S.C. § 1225(b)(1), DHS has determined that 5 Petitioner is inadmissible under 8 U.S.C. § 1182(a)(7)(A)(i)(I), which provides that “any 6 immigrant at the time of application for admission … who is not in possession of a valid 7 unexpired immigrant visa, reentry permit, border crossing identification card, or other valid 8 entry document required by this chapter … is inadmissible.” ECF No. 4-1 at 15–16. 9 Petitioner states that on or about July 29, 2025, over her opposition, the immigration 10 court granted DHS’s motion to dismiss her initial full removal proceedings, such that she 11 remained subject only to expedited removal proceedings. ECF No. 1 ¶¶ 78, 79. 12 On August 28, 2025, DHS—through an asylum officer working with U.S. 13 Citizenship and Immigration Services—conducted a credible fear interview with Petitioner 14 and found her testimony credible. Id. ¶ 79. As a result of that finding, Petitioner was once 15 again placed in full removal proceedings pursuant to 8 U.S.C. § 1229a, effectively 16 terminating her expedited removal proceedings. DHS served Petitioner with a new Notice 17 to Appear charging her with inadmissibility under both grounds previously cited, 8 U.S.C. 18 § 1182(a)(6)(A)(i) and 8 U.S.C. § 1182(a)(7)(A)(i)(I). ECF No. 4-1 at 23. 19 Petitioner has remained in DHS custody since her re-arrest on July 15, 2025. Id. ¶¶ 20 22, 81. She continues to pursue her request for asylum and other relief in immigration court. 21 The Parties have fully briefed the merits of the Petition. See ECF Nos. 1, 4, 6, 7. 22 II. LEGAL STANDARD 23 Title 28 of the U.S. Code, Section 2241, provides that “[w]rits of habeas corpus may 24 be granted by the Supreme Court, any justice thereof, the district courts and any circuit 25 judge within their respective jurisdictions.” 28 U.S.C. § 2241(a). A detainee bears the 26 burden of demonstrating that “[sh]e is in custody in violation of the Constitution or laws 27 or treaties of the United States.” 28 U.S.C. § 2241(c)(3). 28 // 1 III. ANALYSIS 2 A. Jurisdiction 3 Respondents challenge this Court’s subject matter jurisdiction on several grounds. 4 First, Respondents argue that Petitioner’s claims “arise from her placement in 5 expedited removal proceedings,” but that such claims are now moot because “Petitioner is 6 no longer in expedited removal proceedings” but rather is in proceedings under 8 U.S.C. § 7 1229a in which she “has the opportunity to present her asylum claim … directly to an 8 immigration judge in a formal hearing.” ECF No. 4 at 7. However, as Petitioner states in 9 her traverse, she “does not challenge the expedited removal process but rather challenge[s] 10 her ongoing detention in Respondents’ custody.” ECF No. 7 at 9; see also id. at 10 (stating 11 that Petitioner “does not challenge Respondents’ decision to initiate expedited removal”). 12 The Court construes the Petition as challenging only the lawfulness of Petitioner’s ongoing 13 custody, a controversy that is not moot since Petitioner remains in custody. 14 Second, Respondents argue that “the Court should deny Petitioner’s response to the 15 extent she asserts claims regarding the termination of her 1229a proceedings and placement 16 into expedited removal proceedings, because such claims do not challenge the lawfulness 17 of her custody.” ECF No. 4 at 8. Again, in light of Petitioner’s statements in the traverse, 18 the Court construes the Petition as challenging only the lawfulness of her ongoing 19 detention. 20 Third, Respondents argue that the Petition is barred by various provisions of 8 21 U.S.C. § 1252. Id. at 9–15. 22 Subsection (g) of that statute provides that, except as otherwise provided in 8 U.S.C. 23 § 1252, and notwithstanding any other provision of law including 28 U.S.C. § 2241, “no 24 court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising 25 from the decision or action by the Attorney General to commence proceedings, adjudicate 26 cases, or execute removal orders against any alien under this chapter.” 8 U.S.C. § 1252(g). 27 Respondents argue that “Petitioner’s claims stem from her detention during removal 28 proceedings,” and that such detention in turn “arises from DHS’s decision to commence 1 such proceedings against her.” ECF No. 4 at 12. Respondents contend that her challenge 2 cannot be brought through a habeas petition, but must instead be brought through 8 U.S.C. 3 § 1252(b)(9), which states: 4 Judicial review of all questions of law and fact, including interpretation 5 and application of constitutional and statutory provisions, arising from any action taken or proceeding brought to remove an alien from the 6 United States under this subchapter shall be available only in judicial 7 review of a final order under this section. 8 8 U.S.C. § 1252(b)(9). Respondents observe that here, there is not yet a “final order” of 9 removal that is subject to judicial review; and that another provision, 8 U.S.C. § 1252(a)(5), 10 states that the sole means for judicial review of such an order will be through a petition for 11 review filed with an appropriate court of appeals. In other words, according to 12 Respondents, “Petitioner’s claims would be more appropriately presented before the BIA 13 and Ninth Circuit” after the issuance of an order of removal. ECF No. 4 at 12. 14 The Supreme Court has interpreted the jurisdiction-limiting provision in 8 U.S.C. 15 § 1252(g) provisions narrowly, restricting it “only to three discrete actions that the 16 Attorney General may take”: the “‘decision or action’ to ‘commence proceedings, 17 adjudicate cases, or execute removal orders.’” Reno v. Am.-Arab Anti–Discrimination 18 Comm., 525 U.S. 471, 482 (1999) (emphasis in original) (quoting 8 U.S.C. § 1252(g)). The 19 Supreme Court noted that “[t]here are of course many other decisions or actions that may 20 be part of the deportation process.” Id. 21 In a later decision involving a habeas petition, the Supreme Court likewise narrowly 22 interpreted the similar “arising from” language in 8 U.S.C. § 1252(b)(9), holding that that 23 language would not be construed “to sweep in any claim that can technically be said to 24 ‘arise from’ the three listed actions of the Attorney General. Instead, we read the language 25 to refer to just those three specific actions themselves.” Jennings v. Rodriguez, 583 U.S. 26 281, 294 (2018). Consistent with this narrow interpretation, the Supreme Court held that 27 Section 1252(b)(9) did not bar the detainee in Jennings from using habeas to challenge the 28 legality of his detention. Id. at 294–95. See also Flores-Miramontes v. INS, 212 F.3d 1133, 1 1139 (9th Cir. 2000) (stating that § 1252(b)(9) “does not affect petitions for habeas 2 corpus”). 3 The same applies here. Petitioner challenges the legality of her detention and 4 specifically disclaims challenging Respondents’ decision to initiate expedited removal 5 proceedings. ECF No. 7 at 9, 10. The Court concludes that Petitioner’s claim is not barred 6 by 8 U.S.C. § 1252(g) or (a)(5). 7 Respondents argue in the alternative that Petitioner’s claims are barred by another 8 provision within the same section, 8 U.S.C. § 1252(a)(2)(A), because Petitioner is 9 challenging the “standards and process of expedited removal proceedings.” ECF No. 4 at 10 13. As the Ninth Circuit has explained, that section’s “general prohibition on judicial 11 review covers the ‘procedures and policies’ that have been adopted to ‘implement’ the 12 expedited removal process; the decision to ‘invoke’ that process in a particular case; the 13 ‘application’ of that process to a particular alien; and the ‘implementation’ and ‘operation’ 14 of any expedited removal order.” Mendoza-Linares v. Garland, 51 F.4th 1146, 1155 (9th 15 Cir. 2022). In that case, the Ninth Circuit determined that 8 U.S.C. § 1252(a)(2)(A) applied 16 to bar the petitioner’s habeas challenges to his expedited removal order, including 17 determinations by an asylum officer and an immigration judge that the petitioner failed to 18 establish credible fear. Id. 19 Here, in contrast, there is no order of expedited removal, and as Respondents assert, 20 “Petitioner is no longer in expedited removal.” ECF No. 4 at 7. Petitioner is not challenging 21 the merits of a removal order, challenging her removability, or anticipatorily seeking relief 22 from removal. She disclaims challenging the decision of DHS to initiate expedited removal 23 proceedings. The Court construes the Petition as challenging only the lawfulness of 24 Petitioner’s detention, rather than challenging the “standards and process of expedited 25 removal proceedings.” Respondents have not cited any case that invokes 8 U.S.C. § 26 1252(a)(2)(A) to limit consideration of a noncitizen’s challenge to her detention. The Court 27 concludes that 8 U.S.C. § 1252(a)(2)(A) does not bar the Court from considering this 28 1 limited claim on the grounds set forth in the discussion of the merits below. 2 B. Merits 3 Respondents assert in their return that Petitioner is subject to mandatory detention 4 under 8 U.S.C. § 1225(b)(1)(B)(ii). ECF No. 4 at 17, 18. Petitioner disputes that she is 5 lawfully detained under this provision. The mandatory detention provision at issue falls 6 within 8 U.S.C. § 1225(b)(1), entitled, “Inspection of aliens arriving in the United States 7 and certain other aliens who have not been admitted or paroled.” Petitioner argues, in 8 essence, that she falls into neither category referenced in this title—she is not an arriving 9 alien, and she has been paroled. 10 Noncitizens are potentially subject to expedited removal if they are inadmissible on 11 the grounds that they either lack proper entry documents (under 8 U.S.C. § 1182(a)(7)) or 12 made a misrepresentation in applying for admission (under 8 U.S.C. § 1182(a)(6)(C)). See 13 8 U.S.C. § 1225(b)(1)(A)(i), (ii). The Parties do not dispute that the former ground, lack of 14 entry documents, applies to Petitioner. 15 // 16 17 18 2 See, e.g., Padilla v. U.S. Immigr. and Customs Enf’t, 704 F. Supp. 3d 1163, 1170 19 (W.D. Wash. 2023) (“[T]he Court continues to find that § 1252(a)(2)(A) has no application to Plaintiffs’ claims. This provision only applies to the procedures and policies necessary 20 to implement the removal process. Here, Plaintiffs’ bond hearing claims do not challenge 21 the removal process—just whether they should be afforded a bond hearing ….”) (internal citation omitted); Co Tupul v. Noem, No. CV-25-2748-PHX-DJH (JZB), 2025 WL 22 2426787, at *2 n.4 (D. Ariz. Aug. 4, 2025) (“The Supreme Court has confirmed that the 23 jurisdictional bar under Section 1252(a)(2)(A) is ‘aimed at protecting the Executive’s discretion from the courts.’ Whether an individual physically present in the United States 24 for more than two years is eligible to be placed in expedited removal proceedings is not a 25 matter of discretion. Judicial review of such decision, therefore, is not barred by Section 1252(a)(2)(A).”) (quoting Reno, 525 U.S. at 486); Mata Velasquez v. Kurzdorfer, No. 25- 26 CV-493-LJV, 2025 WL 1953796, at *7 (W.D.N.Y. July 16, 2025) (“[Petitioner] does not 27 challenge the statutory framework, nor does he challenge the wisdom of the discretionary decision to place him in expedited proceedings. Sections 1252(a)(2)(A) and 1252(e)(3) 28 1 Inadmissibility on one of these two grounds is a necessary but not sufficient 2 condition for eligibility for expedited removal. Additionally, the noncitizen must either be 3 (1) “arriving in the United States,” or (2) “described in clause (iii),” referring to 8 U.S.C. 4 § 1225(b)(1)(A)(iii). The second category refers to noncitizens who have been “designated 5 by the Attorney General” and who meet the statutory criteria in the second paragraph 6 below: 7 (iii) Application to certain other aliens 8 (I) In general 9

10 The Attorney General may apply clauses (i) and (ii) of this subparagraph to any or all aliens described in subclause (II) as 11 designated by the Attorney General. Such designation shall be in the 12 sole and unreviewable discretion of the Attorney General and may be modified at any time. 13

14 (II) Aliens described

15 An alien described in this clause is an alien who is not described in 16 subparagraph (F), who has not been admitted or paroled into the United States, and who has not affirmatively shown, to the satisfaction of an 17 immigration officer, that the alien has been physically present in the 18 United States continuously for the 2-year period immediately prior to the date of the determination of inadmissibility under this 19 subparagraph. 20 21 See 8 U.S.C. § 1225(b)(1)(A)(iii). Thus, under the language of the statute, to be eligible for 22 expedited removal, a noncitizen must either be a noncitizen “arriving in the United States” 23 or must both fall within the statutory criteria of 8 U.S.C. § 1225(b)(1)(A)(iii)(II) and be 24 designated by the Attorney General (or her designee) pursuant to 8 U.S.C. § 25 1225(b)(1)(A)(iii)(I). 26 The statute further provides that where a noncitizen meeting the above requirements 27 “indicates either an intention to apply for asylum … or a fear of persecution,” that person 28 shall be referred for an interview by an asylum officer under 8 U.S.C. § 1225(b)(1)(B). See 1 8 U.S.C. § 1225(b)(1)(A)(ii). “If the officer determines that an alien has a credible fear of 2 persecution … the alien shall be detained for further consideration of the application for 3 asylum.” 8 U.S.C. § 1225(b)(1)(B)(ii). It is this last provision that, according to 4 Respondents, is the statutory basis for Petitioner’s mandatory detention here. 5 Petitioner argues that the mandatory detention provision does not apply to her 6 because at the time of her re-arrest (1) she was not a noncitizen “arriving in the United 7 States,” having been released into the United States over eight months previously on 8 conditional parole; and (2) she was not statutorily eligible to be designated for expedited 9 removal, having been previously “admitted or paroled into the United States.” See ECF 10 Nos. 1 ¶¶ 121–23; 7 at 8. 11 In their return, Respondents did not argue that Petitioner was subject to mandatory 12 detention as an arriving alien, nor did Respondents address whether Petitioner meets the 13 statutory requirements for designation. See ECF No. 4. Respondents assert that Petitioner 14 is subject to detention under 8 U.S.C. § 1225(b)(1)(B)(ii), but do not explain how she is 15 subject to that detention. See id. at 18. 16 On October 3, 2025, the Court issued an order inviting supplemental briefing. ECF 17 No. 5. The order stated, in part: 18 [C]lause (iii) only applies to an alien “who has not been admitted or paroled into the United States.” That is, if an alien has been admitted or 19 paroled into the United States, it appears that the Attorney General does 20 not have the authority to thereafter designate that alien for expedited removal pursuant to 1225(b)(1)(A)(iii). 21

22 Some district courts hearing habeas proceedings have indicated that a noncitizen who is not an arriving alien and who is initially released on 23 his or her own recognizance cannot thereafter be designated for 24 expedited removal. See Valencia Zapata v. Kaiser, --- F. Supp. 3d ---, 2025 WL 2741654, at *9 n.4 (N.D. Cal. 2025) (“Because Petitioners 25 were released on their own recognizance after their initial detention at 26 the border, they are also ineligible for expedited removal proceedings as they have been ‘paroled’ within the meaning of section 27 1225(b)(1).”); Aviles-Mena v. Kaiser, No. 25-cv-06783-RFL, 2025 WL 28 2578215, at *4 (N.D. Cal. Sept. 5, 2025) (“The Court concurs with 1 other courts that have found that section 1225(b)(1) ‘does not authorize designation for expedited removal of any noncitizen who has, at any 2 point in time, been paroled into the United States.’”); Garcia v. 3 Andrews, No. 1:25-cv-1006 JLT SAB, 2025 WL 2420068, at *4-5, *9 (E.D. Cal. Aug. 21, 2025). See also Coalition for Humane Immigrant 4 Rights v. Noem, --- F. Supp. 3d ---, 2025 WL 2192986, at *22 (D.D.C. 5 2025) (stating that Section 1225(b)(1)(A)(iii) “forbids the expedited removal of noncitizens who have been, at any point in time, paroled 6 into the United States”). 7 In light of the foregoing, the Court provides the Parties the opportunity 8 to address whether Petitioner’s mandatory detention pursuant to 9 Section 1225(b)(1)(B)(ii) is lawful, in light of the fact that over eight months prior to her re-arrest she was apparently released on conditional 10 parole pursuant to Section 1226(a). 11 Id. at 3–4. On October 3, 2025, Respondents made a timely filing stating that they have no 12 additional briefing to offer the Court at this time. ECF No. 6. 13 The Court concludes that Petitioner is not lawfully subject to detention pursuant to 14 8 U.S.C. § 1225(b)(1)(B)(ii). Respondents have not argued that Petitioner is subject to 15 mandatory detention as an arriving alien. As of July 25, 2025, the date Petitioner was re- 16 arrested and detained pursuant to 8 U.S.C. § 1225(b)(1)(B)(ii), she was not an arriving 17 alien, having been released by DHS on her own recognizance over eight months before. 18 Nor have Respondents addressed whether or how Petitioner is statutorily eligible for 19 designation under 8 U.S.C. § 1225(b)(1)(A)(iii)(II), a provision which can only apply to a 20 noncitizen “who has not been admitted or paroled into the United States.” This statutory 21 language is not surplusage; as discussed above, paragraph (b)(1) of 8 U.S.C. § 1225— 22 which includes the mandatory detention provision at issue—is entitled, “Inspection of 23 aliens arriving in the United States and certain other aliens who have not been admitted or 24 paroled.” Here, Petitioner was released pursuant to 8 U.S.C. § 1226(a) on her own 25 recognizance, a form of conditional parole, on October 29, 2024. ECF No. 1 ¶ 2. At her 26 immigration court hearing over eight months later on July 15, 2025, she had previously 27 been paroled, and thus did not qualify for mandatory detention under 8 U.S.C. § 28 1 || 1225(b)(1)(B)(i1), as set forth in the authorities cited in the Court’s order permitting 2 ||supplemental briefing, supra. For the above reasons, Petitioner has carried her burden to 3 || establish that her custody under 8 U.S.C. § 1225(b)(1)(B)(i1) is unlawful. 4 Prior to Petitioner’s detention under 8 U.S.C. § 1225(b)(1)(B)(ii), questions of her 5 ||release, bond, or detention were governed by 8 U.S.C. § 1226(a). See ECF Nos. 4 at 5-6; 6 at 6-7. Under that statute, DHS had released Petitioner on her own recognizance. This 7 ||Court, having determined that Petitioner’s continued detention under 8 U.S.C. 8 1225(b)(1)(B)(i1) is unlawful, concludes that the question of her release, bond, or 9 || detention was and is properly governed by 8 U.S.C. § 1226(a). 10 CONCLUSION 11 For the foregoing reasons, the Petition is GRANTED as set forth herein. 12 ||Respondents shall release Petitioner forthwith subject to the terms and conditions of her 13 || previous release by DHS pursuant to 8 U.S.C. § 1226(a). To the extent the Petition seeks 14 relief not disclaimed by Petitioner or not addressed herein, such relief is denied. The 15 |}Court VACATES the hearing date set for October 9, 2025. 16 IT IS SO ORDERED. 17 || Dated: October 7, 2025 Febut C / ‘ 18 19 Hon. Robert S. Huie United States District Judge 20 21 22 23 24 25 26 27 28