govinfo:USCOURTS-casd-3_26-cv-03524-0

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UNITED STATES DISTRICT COURT 
SOUTHERN DISTRICT OF CALIFORNIA 
 
YOHANA DEL CARMEN ARIAS TOVAR, 
Petitioner, 
v. 
CHRISTOPHER J. LAROSE, Senior Warden, 
Otay Mesa Detention Center, et al., 
Respondents. 

 
ORDER GRANTING PETITION 
FOR WRIT OF HABEAS CORPUS 
 
[Doc. 1] 
 
 
 
Pending before the Court is Petitioner Yohana del Carmen Arias Tovar’s 
(“Petitioner”) Petition for Writ of Habeas Corpus (“Petition”) pursuant to 28 U.S.C. § 2241 
challenging the lawfulness of her detention by United States Immigration and Customs 
Enforcement (“ICE”). (Doc. 1.) For the reasons below, the Court GRANTS the Petition. 
I. BACKGROUND 
Petitioner is a citizen of Venezuela who entered the United States on July 14, 2024 
to request asylum. (Doc. 1 ¶ 1.) “She was issued a conditional parole, and released on her 
own recognizance that same day.” ( Id.) She applied for asylum on December 9, 2024, 
received a work permit valid for five years, and worked and resided in the United States 
continuously since then. (Id. ¶ 2.) She was re-detained in Atlanta during an immigration 
enforcement operation while she was on her way to work and transferred to Otay Mesa 
Detention Center, where she remains. (Id. ¶ 3.) Petitioner is not eligible for a bond hearing 
because the immigration judges lack jurisdiction under the Board of Immigration Appeals’ 
decision in Matter of Yajure Hurtado, 29 I&N Dec. 216 (BIA 2025). (Id. ¶ 22.) 
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On June 12, 2026, Petitioner filed her Petition. (Doc. 1.) The Court set a briefing 
schedule that same day. (Doc. 3.) On June 16 , 2026, Respondents filed their Re turn to 
Petition for Writ of Habeas Corpus. (Doc. 5.) Later that same day, Petitioner filed her 
Traverse in Support of Petition. (Doc. 6.) 
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 di strict 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 argues that h er detention violates the Administrative Procedure Act and 
the Fifth Amendment’s Due Process Clause. (Doc. 1 ¶¶ 43 –56.) Sh e seeks immediate 
release or a prompt § 1226(a) bond hearing. ( Id., Prayer for Relief.) Respondents argue 
that Petitioner is subject to mandatory detention under § 1225(b), but “acknowledge[ ] that 
this Court’s prior decisions will control the result here . . . , as the facts are not materially 
distinguishable . . . , and on that basis [do] not oppose the petition and defer[ ] to the Court 
on the appropriate relief.” (Doc. 5 at 2–3.) 
The Court has granted petitions filed by similarly- situated petitioners. See, e.g., 
Silvestre-Mendoza v. Noem, Case No.: 3:25-cv-03206-RBM-DDL, 2025 WL 3512410, at 
*1–2 (S.D. Cal. Dec. 8, 2025). In that decision, the Court found that “‘a proper 
understanding of the relevant statutes, in light of their plain text, overall structure, and . . . 
case law interpreting them, compels the conclusion that § 1225’s provisions for mandatory 
detention of noncitizens seeking admission [do] not apply to someone like [the petitioner],’ 
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who has been residing in the United States” for several years. Id. at *1 (quoting Lopez 
Benitez v. Francis, 795 F. Supp. 3d 475, 484 (S.D.N.Y. 2025)). The Court incorporates its 
reasoning in Silvestre-Mendoza, and makes the same findings, here. 
There is no dispute that Petitioner was detained after having resided in the United 
States for nearly two years after being issued a conditional parole . (Doc. 1 ¶¶ 1–3.) 
Therefore, the discretionary detention procedures of § 1226 govern Petitioner’s detention, 
and the Petition must be granted. The Court also finds that immediate release, rather than 
a bond hearing, is the appropriate remedy. See E.A. T.-B. v. Wamsley , 795 F. Supp. 3d 
1316, 1324 (W.D. Wash. 2025) (“Although the Government notes that Petitioner may 
request a bond hearing while detained, such a post-deprivation hearing cannot serve as an 
adequate procedural safeguard because it is after the fact and cannot prevent an erroneous 
deprivation of liberty.”); Jorge M.F. v. Jennings, 534 F. Supp. 3d 1050, 1055 (N.D. Cal. 
2021) (“if Petitioner is detained, he will already have suffered the injury he is now seeking 
to avoid”); Domingo v. Kaiser , Case No. 25- cv-05893 (RFL), 2025 WL 1940179, at *3 
(N.D. Cal. July 14, 2025) (“Even if Petitioner[] received a prompt post- detention bond 
hearing under 8 U.S.C. § 1226(a) and was released at that point, he will have already 
suffered the harm that is the subject of his motion; that is, his potentially erroneous 
detention.”). 
IV. CONCLUSION 
For the foregoing reasons, the Petition is GRANTED. Accordingly: 
1. Respondents are ORDERED to immediately release Petitioner from custody. 
2. The Court ORDERS, prior to any re -detention of Petitioner, that Petitioner shall 
receive a hearing before an immigration judge pursuant to 8 U.S.C. § 1226(a) to 
determine whether detention is warranted. Respondents shall bear the burden of 
establishing, by clear and convincing evidence,1 that Petitioner poses a danger to the 
 
1 See Sadeqi v. LaRose, 809 F. Supp. 3d 1090, 1095 (S.D. Cal. 2025) (“Petitioner is entitled 
to a prompt and individualized bond hearing, at which Respondents must justify her 
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community or a risk of flight.2 
IT IS SO ORDERED. 
DATE: June 17, 2026 
 ___________________________________ 
 HON. RUTH BERMUDEZ MONTENEGRO 
 UNITED STATES DISTRICT JUDGE 
 
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”). 
2 This relief has been granted in similar matters. See E.A. T.-B, 795 F. Supp. 3d at 1324; 
Duong v. Kaiser, 800 F. Supp. 3d 1030, 1043–44 (N.D. Cal. 2025); Lepe v. Andrews, 801 
F. Supp. 3d 1104, 1119–20 (E.D. Cal. 2025). 
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