1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 SOUTHERN DISTRICT OF CALIFORNIA 8 9 TRESOR MALEKA NDANDU, Case No.: 3:25-cv-02939-RBM-MSB

10 Petitioner,

ORDER GRANTING PETITION

11 v. FOR WRIT OF HABEAS CORPUS

12 KRISTI NOEM et al., [Doc. 1] 13 Respondents. 14 15 16 Pending before the Court is Petitioner Tresor Maleka Ndandu’s (“Petitioner”) 17 Petition for Writ of Habeas Corpus (“Petition”) pursuant to 28 U.S.C. § 2241 challenging 18 the lawfulness of his detention by United States Immigration and Customs Enforcement 19 (“ICE”). (Doc. 1.) For the reasons set forth below, the Court GRANTS the Petition. 20 I. BACKGROUND 21 A. Factual Background 22 Petitioner is a citizen of the Democratic Republic of Congo (“DRC”). (Doc. 17 at 23 2.)1 In 2013, Petitioner was convicted of a state felony. (Doc. 13 at 2.)2 On June 13, 2022, 24

25 1 The Court cites the CM/ECF pagination unless otherwise noted. 26

27 2 Per the Court’s sealed order issued on November 18, 2025 (Doc. 2), the Petition was filed under seal. The Court therefore cites to the Amended Petition (Doc. 13) which is a 28 1 an immigration judge ordered Petitioner removed but granted him deferral of removal to 2 DRC under the Convention Against Torture (“CAT”).3 (Doc. 17 at 2.) ICE released him 3 “a couple of days later [and] placed an ankle monitor on him for about one week.” (Doc. 4 13 at 2.) ICE then removed the ankle monitor and informed Petitioner that “he did not 5 have to check in with them again.” (Id.) 6 Earlier this year, Petitioner was arrested for a misdemeanor offense and held at the 7 San Diego County Jail until he posted bail. (Id. at 6.) On September 8, 2025, ICE re- 8 detained Petitioner while he was attending his scheduled superior court hearing. (Id. at 2– 9 3.) During his arrest, ICE informed him that “his name had come up in their system” but 10 did not state the reason for his re-detention and did not provide him with any paperwork. 11 (Id. at 4.) Petitioner claims that “[h]e has never been offered an informal interview or a 12 chance to contest his re-detention” and that “no one has told him that he violated the 13 conditions of his release.” (Id. at 6.) Petitioner also claims that “ICE has never asked him 14 to fill out travel document paperwork to any country” or talked to him about his removal. 15 (Id.) While in detention, Petitioner requested information about the reasons for his 16 detention and status updates in his case. (Id. at 7.) ICE responded “that they were still 17 reviewing his case.” (Id.) Petitioner remains detained at the Otay Mesa Detention Center 18 and his “misdemeanor case was dismissed after he was detained.” (Id. at 6.) 19 B. Procedural History 20 On October 30, 2025, Petitioner filed the Petition (Doc. 1), a Motion for Under Seal 21 Filing (Doc. 1-5), a Motion for Appointment of Counsel (Doc. 3), and a Notice of Motion 22 and Memorandum of Law in Support of a Temporary Restraining Order (“TRO Motion”) 23 (Doc. 4). On November 18, 2025, the Court issued an order under seal granting Petitioner’s 24 25 26 3 Deferral of removal under CAT is a limited form of relief afforded only to noncitizens 27 who are barred from receiving withholding of removal. 8 C.F.R. § 1208.17(a). Deferral bars a noncitizen’s removal to a particular country but allows, among other options, 28 1 Motion for Appointment of Counsel (Doc. 3) and granting in part and denying in part the 2 Motion for Under Seal Filing (Doc. 1-5). (Doc. 2.) Pursuant to the Order’s order, 3 Petitioner filed redacted versions of the Motion for Appointment of Counsel (Doc. 14), the 4 TRO Motion (Doc. 15), and the Petition (“Amended Petition”) (Doc. 13). 5 II. LEGAL STANDARD 6 A writ of habeas corpus is “available to every individual detained within the United 7 States.” Hamdi v. Rumsfeld, 542 U.S. 507, 525 (2004) (citing U.S. Const., Art. I, § 9, cl. 2). 8 “The essence of habeas corpus is an attack by a person in custody upon the legality of that 9 custody, and . . . the traditional function of the writ is to secure release from illegal 10 custody.” Preiser v. Rodriguez, 411 U.S. 475, 484 (1973). “Writs of habeas corpus may 11 be granted by the Supreme Court, any justice thereof, the district courts and any circuit 12 judge within their respective jurisdictions.” 28 U.S.C. § 2241(a). The petitioner bears the 13 burden of demonstrating that “[h]e is in custody in violation of the Constitution or laws or 14 treaties of the United States.” Id. § 2241(c)(3). 15 III. DISCUSSION 16 Petitioner claims he is being detained by United States Immigration and Customs 17 Enforcement (“ICE”) in violation of “his statutory and regulatory rights, Zadvydas v. 18 Davis, 533 U.S. 678 (2001), and the Fifth Amendment.” (Doc. 13 at 3–5.) Petitioner also 19 claims ICE may not remove him to a third country “without providing an opportunity to 20 assert fear of persecution or torture before an immigration judge.” (Id. at 4–5.) 21 The Court first addresses Petitioner’s claims concerning the alleged regulatory 22 violations and third-country removal before turning to the constitutionality of his ongoing 23 detention under Zadvydas. 24 A. Agency Regulations and Third-Country Removal 25 Respondents argue that even if ICE did not comply with its regulations, Petitioner 26 has not established prejudice or a constitutional violation. (Doc. 16 at 6.) They also claim 27 that ICE will provide Petitioner written notice and refer him “to an asylum officer for 28 processing of [any asserted] fear-based claims” once a third country is identified rather 1 than immediately deport him. (Id. at 9 (quoting Doc. 16-1, Declaration of David Townsend 2 [“Townsend Decl.”] ¶ 14).) 3 Respondents’ arguments are identical to those recently addressed by the undersigned 4 in Azzo v. Noem, Case No.: 3:25-cv-03122-RBM-BJW, 2025 WL 3535208 (S.D. Cal. Dec. 5 10, 2025). There, this Court held that “Respondents: (1) [had] not met their burden under 6 Zadvydas; (2) violated the regulations in §§ 241.4(l) and 241.13(i)” when the petitioner did 7 not receive an informal interview until a month after was re-detained; “and (3) must 8 provide [the petitioner] with adequate notice and an opportunity to be heard before 9 removing him to a third country.” Azzo, 2025 WL 3535208 at *2, 5. The Court also 10 rejected similar arguments concerning prejudice and found the “[p]etitioner was prejudiced 11 by ICE’s failure to comply with its own regulations.” Id. at *6; see also Ghafouri v. Noem, 12 No. 3:25-CV-02675-RBM-BLM, 2025 WL 3085726, at *6 (S.D. Cal. Nov. 4, 2025); 13 Rasakhamdee v. Noem, Case No.: 3:25-cv-02816-RBM-DEB, 2025 WL 3102037, at *5 14 (S.D. Cal. Nov. 6, 2025) 15 Here, Petitioner’s claims concerning Respondents’ regulatory violations and third- 16 country removal are stronger than in Azzo. Like in Azzo, Respondents plan to remove 17 Petitioner to a third country but admit “there is no record in the A-file showing that 18 Petitioner was provided a Notice of Revocation of Release or provided an informal 19 interview regarding the reason for the revocation of his release.” (Townsend Decl. [Doc. 20 16-1] ¶ 8.) The Court therefore adopts its reasoning as to these issues and applies it here. 21 ICE’s failure to comply with its regulations in revoking Petitioner’s release renders his 22 detention unlawful and warrants release. See Azzo, 2025 WL 3535208 at *5. 23 However, Petitioner also argues that his continued detention is unconstitutional 24 under Zadvydas. Petitioner is differently situated from the petitioner in Azzo because he 25 has been in detention for less than the six-month presumptively reasonable period 26 prescribed in Zadvydas. In light of this distinction, the Court addresses the constitutionality 27 of Petitioner’s continued detention separately and finds that Petitioner has established there 28 is no significant likelihood that he will be removed in the reasonably foreseeable future. 1 B. Zadvydas 2 “Section 241(a) of the Immigration and Nationality Act (INA), codified at 8 U.S.C. 3 § 1231(a), authorizes the detention of noncitizens who have been ordered removed from 4 the United States.” Johnson v. Arteaga-Martinez, 596 U.S. 573, 575 (2022). Under this 5 statute, a noncitizen ordered removed must be detained for 90 days pending the 6 government’s efforts to secure the noncitizen’s removal through negotiations with foreign 7 governments. See 8 U.S.C. § 1231(a)(2). Section 1231(a)(6) “authorizes further detention 8 if the Government fails to remove the [noncitizen] during those 90 days.” Zadvydas, 533 9 U.S. at 682. The statute, however, is limited to “a period reasonably necessary to bring 10 about [the noncitizen’s] removal from the United States” and “does not permit indefinite 11 detention.” Id. at 689. 12 Petitioner contends that “his detention is not authorized by statute or due process” 13 because the 90-day removal period has expired and he has sufficiently demonstrated there 14 is no significant likelihood that he will be removed in the reasonably foreseeable future. 15 (Doc. 17 at 4–6.) The Court addresses each argument in turn. 16 1. Rebuttable Presumption 17 Respondents argue that “Petitioner has been in post-final order detention for a total 18 of about three months. . . . [and his] present detention is still within the six-month period 19 that Zadvydas found to be presumptively reasonable.” (Doc. 16 at 3.) Petitioner responds, 20 arguing that he may challenge his continued detention as unconstitutional because the 90- 21 day statutory removal period has expired and the six-month presumptively reasonable 22 period of detention is rebuttable. (Doc. 17 at 4–5.) 23 In Zadvydas, the Supreme Court recognized a six-month presumptively reasonable 24 period of detention after a noncitizen’s removal order becomes final. 533 U.S. at 701. 25 “After this 6-month period, once the [noncitizen] provides good reason to believe that there 26 is no significant likelihood of removal in the reasonably foreseeable future, the 27 Government must respond with evidence sufficient to rebut that showing.” Id. The 28 Supreme Court later clarified its holding in Zadvydas and explained that: 1 Zadvydas did not hold that the statute authorizes detention until it approaches constitutional limits; it held that, since interpreting the statute to authorize 2 indefinite detention (one plausible reading) would approach constitutional 3 limits, the statute should be read (in line with the other plausible reading) to authorize detention only for a period consistent with the purpose of 4 effectuating removal. . . . If [it] were, as the Government seems to believe, 5 free to ‘interpret’ statutes as becoming inoperative when they ‘approach constitutional limits,’ [the Supreme Court] would be able to spare [itself] the 6 necessity of ever finding a statute unconstitutional as applied. 7 8 Clark v. Martinez, 543 U.S. 371, 384 (2005) (emphasis added). 9 Multiple district courts have found that the six-month presumption is rebuttable. See 10 Hoang Trinh v. Homan, 333 F. Supp. 3d 984, 994 (C.D. Cal. 2018) (“The Supreme Court 11 in Zadvydas outlined a ‘guide’ for approaching these detention challenges . . . not a 12 prohibition on claims challenging detention less than six months.”) (quoting Zadvydas, 533 13 U.S. at 700–01); Trinh v. Homan, 466 F. Supp. 3d 1077, 1092 (C.D. Cal. 2020) (“At no 14 point did the Zadvydas Court preclude a noncitizen from challenging their detention before 15 the end of the presumptively reasonable six-month period.”); Uzzhina v. Chestnut, No. 16 1:25-cv-01594-DAD-SCR, 2025 WL 3458787, at *3 n.3 (E.D. Cal. Dec. 2, 2025) (“The 17 fact that a noncitizen has been held in-custody less than six months does not foreclose a 18 claim that his or her detention is unlawful under Zadvydas.”); Medina v. Noem, 794 F. 19 Supp. 3d 365, 375 (D. Md. 2025) (noting that “what Zadvydas did make clear was that it 20 was adopting a presumption—not a conclusive bar to adjudication of whether continued 21 detention is authorized that lifts only after six months have elapsed”). Under Respondents’ 22 proposed interpretation of this regulation, “the Government would be permitted to detain 23 noncitizens ordered removed for up to six months even when their removal is impossible.” 24 Zavvar v. Scott, Civil Action No. 25-2104-TDC, 2025 WL 2592543, at *5 (D. Md. Sept. 25 8, 2025). 26 The Court agrees with these courts’ reasoning and finds the six–month presumption 27 in Zadvydas is rebuttable. See Clark, 543 U.S. at 387 (O’Connor, J., concurring) (“[T]he 28 6-month presumption . . . in Zadvydas . . . , is just that—a presumption.”). 1 2. Significant Likelihood of Removal 2 Although Petitioner has been detained for less than six months, he argues that he has 3 overcome the presumption of reasonableness under Zadvydas because: (1) he cannot be 4 removed to his country of origin; (2) removals to third countries are historically rare; (3) 5 ICE tried and failed to remove him during the 90-day detention period; and (4) Mexico, 6 the only country ICE identified, declined to accept him. (Doc. 17 at 9.) The Court agrees. 7 The Supreme Court set the “presumptively reasonable period of detention” under 8 8 U.S.C. § 1231(a)(6) at six months. Zadvydas, 533 U.S. at 701. After the six-month period, 9 a petitioner is entitled to release if he “provides good reason to believe that there is no 10 significant likelihood of removal in the reasonably foreseeable future” and the government 11 is unable to rebut that showing. Id. (emphasis added). 12 Generally, “a ‘presumption’ can be rebutted only by contrary evidence.” Godoy v. 13 Spearman, 861 F.3d 956, 965 (9th Cir. 2017); see also Fed. R. Evid. 301 (“In a civil case, 14 unless a federal statute or these rules provide otherwise, the party against whom a 15 presumption is directed has the burden of producing evidence to rebut the presumption.”). 16 As such, within the six-month period, “the petitioner must claim and prove [ ] that his 17 removal is not reasonably foreseeable” to overcome the presumption. Munoz-Saucedo v. 18 Pittman, 789 F. Supp. 3d 387, 398 (D.N.J. 2025) (emphasis in original); see also Cesar v. 19 Achim, 542 F. Supp. 2d 897, 903 (E.D. Wis. 2008) (“[T]he presumption scheme merely 20 suggests that the burden the detainee must carry within the first six months . . . is a heavier 21 one than after six months has elapsed.”). District courts must “measure reasonableness 22 primarily in terms of the statute’s basic purpose, namely, assuring the [noncitizen’s] 23 presence at the moment of removal.” Zadvydas, 533 U.S. at 699. “[O]nce removal is no 24 longer reasonably foreseeable, continued detention is no longer authorized by statute.” Id. 25 In this case, Petitioner was granted deferral of removal to the DRC and no alternative 26 countries were designated in his removal order. (See Doc. 16 at 2, 4; Doc. 17 at 2.) This 27 presents a legal impediment to Petitioner’s eventual removal because he may not be 28 removed to the DRC—the only country he has a claim to citizenship—as long as the 1 deferral of removal remains in effect. See Nadarajah v. Gonzales, 443 F.3d 1069, 1082 2 (9th Cir. 2006) (holding the petitioner sufficiently established no significant likelihood of 3 his removal in the reasonably foreseeable future based on his grant of asylum and CAT 4 protection because “the government [was] not entitled to remove him to Sri Lanka, and no 5 other country has been identified to which he might be removed.”); cf. Prieto-Romero v. 6 Clark, 534 F.3d 1053, 1063 (9th Cir. 2008) (denying habeas relief where there was no 7 evidence that the petitioner’s destination country will not accept him or that his removal 8 was otherwise barred to show he was unremovable). 9 Petitioner references data showing that between 2020 and 2023 “ICE removed . . . 10 only five non-citizens granted withholding or CAT relief to alternative countries.” (Doc. 11 17 at 2–3 (quoting Munoz-Saucedo, 789 F. Supp. 3d at 398) (emphasis in original).) He 12 also states that in 2017, “there were at most 21 people of the thousands with withholding 13 of removal deported to any country [which] includes dual citizens who only received 14 withholding from one of their two other countries of origin.” (Id. at 3, 7 (citing American 15 Immigration Council & National Immigrant Justice Center, The Difference Between 16 Asylum and Withholding of Removal, 7 (Oct. 2020)) (emphasis in original).) While 17 “historical outcomes do not necessarily control the result in any particular case, the data 18 nevertheless supports the general inference that removal for this particular class of 19 detainees is substantially more difficult.” Munoz-Saucedo, 789 F. Supp. 3d at 398. 20 Even when authorized, third country removal still requires the affirmative assent of 21 the receiving country. 8 U.S.C. § 1231(b)(2)(E)(vii). Petitioner asserts that “foreign 22 governments ‘routinely deny’ requests to receive people who lack a connection” to their 23 countries, as he does. (Doc. 17 at 7 (quoting Puertas-Mendoza v. Bondi, Case No. SA-25- 24 CA-00890-XR, 2025 WL 3142089, *3 (W.D. Tex. Oct. 22, 2025)).) Although several 25 countries have agreements with the United States to accept third-country deportees, 26 Petitioner identifies facts that make his removal to such countries unlikely. (Id. (citing 27 Jacqueline Metzler, What Are Third-Country Deportations, and Why Is Trump Using 28 Them?, Council on Foreign Relations (Sept. 3, 2025)).) As Petitioner notes, he has a 1 serious criminal history, mental health conditions, and has asserted his fear of being 2 removed to any African country. (Id. at 7–8; see Doc. 1-3 ¶ 10 (declaring that Petitioner 3 faces danger in other African countries) (filed under seal); Doc. 1-4, Ex. C at 5 (discussing 4 Petitioner’s mental health diagnoses) (filed under seal).) 5 Indeed, since Petitioner was granted deferral of removal over three years ago, no 6 countries have been identified to which he might be removed. See Nadarajah, 443 F.3d at 7 1082. Nor is there an indication that any country is willing or currently considering 8 accepting him. See Munoz-Saucedo, 789 F. Supp. 3d at 400. On October 6, 2025, almost 9 a month after Petitioner’s re-detention, ICE submitted a resettlement request to Mexico 10 which declined to accept Petitioner. (See Doc. 16 at 5 (citing Townsend Decl. [Doc. 16-1] 11 ¶ 10); Doc. 17 at 9.) Aside from this resettlement request, it appears that ICE has not made 12 further inquiries to any other countries. The only other evidence of ICE’s ongoing efforts 13 to remove Petitioner is a statement that on October 17, 2025, ICE’s local Enforcement and 14 Removal Operations (“ERO”) sent a request to ERO’s headquarters for assistance 15 identifying other potential countries to which Petitioner may be removed. (Doc. 16 at 5; 16 Townsend Decl. [Doc. 16-1] ¶ 9). ICE’s local ERO “last contacted HQ RIO on November 17 13, 2025, for possible third country removal.” (Townsend Decl. [Doc. 16-1] ¶ 11.) Based 18 on these statements, it appears the local ERO had not received a response to either request 19 at the time of Respondents’ filing on December 1, 2025. See Conchas-Valdez v. Casey, 20 No. 25-cv-02469-DMS-JLB, 2025 WL 2884822, at *3 (S.D. Cal. Oct. 6, 2025) (“[T]he 21 Government’s minimal work on this case—one resettlement request and two follow up 22 emails over the course of seven months—do not instill confidence that it will be able to 23 secure [the] [p]etitioner’s removal in the reasonably foreseeable future.”). 24 Even if ICE were to identify a third country, Petitioner maintains his removal is 25 unlikely in the near future because he is entitled to “raise a fear-based challenge to his 26 removal to any other country than the DRC” resulting in “potentially ‘additional, lengthy 27 proceedings.’” (Doc. 17 at 10 (quoting Munoz-Saucedo, 2025 WL 1750346 at *7).) In 28 particular, Petitioner “would certainly seek to raise a claim of fear of persecution upon his 1 removal to any African country.” (Id.) Indeed, Petitioner may apply for such relief 2 especially in light of his CAT findings. See 8 C.F.R. § 1208.17(b)(2) (providing that an 3 immigration officer must inform the noncitizen that he “may be removed at any time to 4 another country where he or she is not likely to be tortured.”) (emphasis added); 8 U.S.C. 5 § 1231(b)(3) (“[T]he Attorney General may not remove an alien to a country if the Attorney 6 General decides that the alien’s life or freedom would be threatened in that country because 7 of the alien’s race, religion, nationality, membership in a particular social group, or political 8 opinion”). While such proceedings may only delay removal, “[t]he fact that [Petitioner] 9 likely will have the opportunity to seek further relief from the Immigration Court, and then 10 potentially file appeals from any adverse rulings, further demonstrates that removal is not 11 likely in the reasonably foreseeable future.” Zavvar, 2025 WL 2592543, at *8. 12 Respondents argue that “it would be premature to conclude that there is no 13 significant likelihood of removal in the reasonably foreseeable future before permitting 14 ICE an opportunity to complete its diligent efforts to effect Petitioner’s removal.” (Doc. 15 16 at 5–6.) But Respondents’ good faith efforts alone do not render a noncitizen’s detention 16 reasonable as this would require that a noncitizen “show the absence of any prospect of 17 removal—no matter how unlikely or unforeseeable—which demands more than [the 18 Supreme Court’s] reading of the statute can bear.” 533 U.S. at 702 (emphasis added); see 19 Conchas-Valdez, 2025 WL 2884822 at * 3. 20 Accordingly, Petitioner has sufficiently established that his removal is not 21 reasonably foreseeable and that his ongoing detention is not reasonably necessary to secure 22 his removal. See Zadvydas, 533 U.S. at 699–700; see, e.g., Munoz-Saucedo, 789 F. Supp. 23 3d at 398–400 (finding no significant likelihood of removal as to a noncitizen with 24 withholding of removal who was detained after over two years on release because he cannot 25 be removed to his country of origin, ICE has historically low success rates in removing 26 similar individuals, and multiple requests to other third countries were denied). Petitioner’s 27 detention is therefore no longer reasonable or authorized by statute. 28 l IV. CONCLUSION 2 Based on the foregoing reasons, the Petition (Doc. 1) is GRANTED. Accordingly: 3 1. Respondents are ORDERED to immediately release Petitioner from custody, 4 subject to his preexisting Order of Supervision. 5 2. Respondents and their officers, agents, employees, attorneys, and persons acting on 6 their behalf or in concert with them are PROHIBITED from removing Petitioner to 7 a third country without notice and a meaningful opportunity to be heard, following 8 the process laid out in D.V.D. v. United States Dep’t of Homeland Sec., Civil Action 9 No. 25-10676-BEM, 2025 WL 1453640 (D. Mass. May 21, 2025).4 10 3. The TRO Motion (Doc. 4) is DENIED AS MOOT. 1] IT IS SO ORDERED. 12 ||DATE: January 5, 2026 13 Fa Baer Mpg D_ 14 HON. RUTH BERMUDEZ MONTENEGRO

UNITED STATES DISTRICT JUDGE

15 16 17 18 19 20 21 22 23 24 25 * This relief has been granted in similar matters. See Louangmilith v. Noem, Case No.: 25- 6 cv-2502-JES-MSB, 2025 WL 2881578, at *4 (S.D. Cal. Oct. 9, 2025); Y.T.D. v. Andrews, 27 || Case No. 1:25-CV-01100 JLT SKO, 2025 WL 2675760, at *13 (E.D. Cal. Sept. 18, 2025); Kumar v. Wamsley, CASE NO. C25-2055-KKE, 2025 WL 3204724, at *9 (W.D. Wash. Nov. 17, 2025). 11