Southern District of California • 3:26-cv-02208

#1

Apr 08, 2026

Petition for Writ of Habeas Corpus against Markwayne Mullin ( Filing fee $ 5 receipt number ACASDC-21008256.), filed by Osmel Cardenas Diaz. (Attachments: # 1 Civil Cover Sheet)The new case number is 3:26-cv-2208-JO-BLM. Judge Jinsook Ohta and Magistrate Judge Barbara Lynn Major are assigned to the case. (Sobero, Alberto)(jxg) (sjt). (Entered: 04/08/2026)

#2

Apr 08, 2026

Minute Order by Judge Jinsook Ohta: The Court adopts the Standard Procedures for this Immigration Habeas Petition from Chief Judge Order No. 144, which is available on the court's website with the following modification: Any optional reply will be due 3 days after the government's opposition. Further, the Court sets a hearing on the Petition for April 30, 2026 at 9:30 AM in Courtroom 4C. All parties may appear by videoconference for the hearing. The courtroom deputy will provide the videoconference information ahead of the hearing, which will proceed unless the Court issues a written decision on the merits ahead of the hearing date. Parties are directed to check the docket at 5:00 PM the day before the hearing. Signed by Judge Jinsook Ohta on 4/8/2026. (mk) (Entered: 04/08/2026)

Apr 08, 2026

Minute Order (No Time)

#3

Apr 13, 2026

Notice of Appearance

#4

Apr 13, 2026

Notice of Appearance

#5

Apr 15, 2026

Response to Petition

#6

Apr 27, 2026

Minute Order by Judge Jinsook Ohta: Petitioner Osmel Cardenas Diaz, a Cuban citizen who came to the United States to seek asylum, seeks habeas relief from his prolonged detention following a final removal order. See Dkt. 1; Dkt. 5-5 at 4. For the reasons stated below, the Court GRANTS the habeas petition. 1. On December 8, 2025, an Immigration Judge ("IJ") ordered Petitioner removed but granted withholding of removal to Cuba, the only country designated in the removal order. Dkt. 5-5 at 6. The Petitioner and the government waived appeal, so the order became final on December 8, 2025. Dkt. 5-1 ¶ 7; Dkt. 1 at 2. DHS has not yet identified a third country for Petitioner's removal. Dkt. 5-1 ¶¶ 9-11; Dkt. 1 at 2; see also Dkt. 5 at 3. In the meantime, Petitioner remains detained at the Imperial Regional Detention Center. Dkt. 1 at 2. 2. For the reasons stated in Pacheco v. LaRose, No. 3:25-cv-2421-JO-AHG, 2026 WL 242300, at *2-*3 (S.D. Cal. Jan. 29, 2026), the Court finds that 8 U.S.C. § 1252(g) does not bar Petitioner's collateral challenge to the constitutionality of his current detention. As courts have consistently found, a challenge to continued detention pending removal does not intrude on the government's discretion to decide "when" or "whether" to execute a removal order and falls outside §1252(g)'s scope. See Phakeokoth v. Noem, No. 3:25-cv-02817-RBM-SBC, 2025 WL 3124341, at *3 (S.D. Cal. Nov. 7, 2025); Esmaeili v. Noem, No. 26-cv-0203-GPC-JLB, 2026 WL 240661 (S.D. Cal. Jan. 29, 2026). 3. The Court further finds that Petitioner's continued detention violates his substantive due process rights under Zadvydas v. Davis, 533 U.S. 678, 701 (2001) (detention following a final removal order is presumptively reasonable for six months but becomes unlawful if the government fails to rebut a noncitizen's showing that there is no significant likelihood of removal in the reasonably foreseeable future). Although detention is mandatory during the initial 90-day removal period, the six-month presumption recognized in Zadvydas is rebuttable where the petitioner demonstrates that removal is not reasonably foreseeable, such that continued detention "exceeds a period reasonably necessary to secure removal." Id. at 700; see Clark v. Martinez, 543 U.S. 371, 384 ("Zadvydas did not hold that the statute authorizes detention until it approaches constitutional limits...."); Hoang Trinh v. Homan, 333 F. Supp. 3d 984, 994 (C.D. Cal. 2018) (explaining that the "Supreme Court in Zadvydas outlined a 'guide' for approaching these detention challenges...not a prohibition on claims challenging detention less than six months"). Here, Petitioner has been detained for over four months since his final removal order, and the government has not shown any meaningful progress toward effectuating removal to a third country. See Dkt. 1 at 2; Dkt. 5 at 5. ERO San Diego Field Office contacted Removal and International Operations three times (on January 8, March 26, and April 7, 2026), but no third country has been identified. Dkt. 5-1 ¶¶ 9-11. Given the government's failure to identify a third country---the necessary first step for removal---the Court finds that Petitioner has rebutted the Zadvydas presumption that detention may be reasonable for up to six months following a final removal order. Accordingly, because there is no significant likelihood of removal in the reasonably foreseeable future, Petitioner's detention is unlawful under Zadvydas, and he is entitled to immediate release. The Court's ruling and injunctive terms are set forth in a separate order at Dkt. 7. Signed by Judge Jinsook Ohta on 04/27/2026.(el) (Entered: 04/27/2026)

#7

Apr 27, 2026

Order

Apr 27, 2026

Minute Order (No Time) AND ~Util - Set Motion and R&R Deadlines/Hearings

#8

Apr 28, 2026

Notice (Other)

Apr 28, 2026

Minute Order (No Time)

#10

Apr 29, 2026

Judgment - Clerk