Unreported / Non-Citable
Background
Wiskendy Francois, a Haitian citizen, was admitted to the United States on a B-2 nonimmigrant visa in 2016 but stayed past its expiration in 2017. After a 2025 arrest in Florida on a capias warrant and license-suspension charge, he was transferred to ICE custody and placed in removal proceedings. He has been detained since at the Otay Mesa Detention Center under 8 U.S.C. § 1226(a). Over the course of 2025, he asked the immigration court for release on four occasions; each time the immigration judge denied his request, citing his eight traffic-stop violations and capias history. He did not appeal any of those denials to the Board of Immigration Appeals (“BIA”). His asylum case was scheduled for March 2026.
He filed a federal habeas petition raising four claims: (1) due-process violation in being denied an individualized custody review; (2) Zadvydas/INA § 241(a)(6) prolonged-detention; (3) Administrative Procedure Act violation; and (4) INA § 236(a) mandatory-detention violation.
The Court’s Holding
The court dismissed the petition in part and denied it in part.
It first rejected the government’s jurisdictional argument under 8 U.S.C. § 1252, joining the line of Southern District of California decisions holding that §§ 1252(a)(5), (b)(9), and (g) do not bar challenges to the legality of detention as opposed to challenges to removal proceedings or removal orders.
On the due-process claim, the court found two flaws. First, the record showed Francois had in fact received individualized custody reviews — four of them — by immigration judges who considered his particular history and circumstances. The reviews denied release, but they were individualized hearings, not denials of a hearing. Second, Francois had not exhausted his administrative remedies by appealing the custody determinations to the BIA. Under Ninth Circuit law (Rojas-Garcia v. Ashcroft, Leonardo v. Crawford), a habeas petitioner must exhaust administrative appeals before bringing constitutional challenges in federal court. Because he took the “short cut” of going directly to district court, the claim was dismissed without prejudice. The court noted that a renewed custody redetermination request based on changed circumstances (such as disposition of the traffic violations) remained available.
On the Zadvydas claim, the court explained that Zadvydas v. Davis applies to detention after a final order of removal under 8 U.S.C. § 1231(a)(6). Francois has no final removal order; he is detained under § 1226(a) while removal proceedings are pending. The Zadvydas analysis simply does not apply to his situation.
Key Takeaways
- Petitioners challenging immigration custody decisions must first appeal those decisions to the Board of Immigration Appeals before bringing a habeas action in federal court. A federal habeas “short cut” risks dismissal for failure to exhaust.
- The right to an “individualized custody review” is satisfied when an immigration judge considers the detainee’s particular circumstances and renders a reasoned decision — even if the decision denies release.
- Zadvydas v. Davis applies only after a final removal order under 8 U.S.C. § 1231(a)(6). Detention under § 1226(a) during pending removal proceedings is governed by different rules and is not subject to Zadvydas’s six-month presumption.
- Custody-determination decisions that go unappealed may still be revisited later through a renewed custody-redetermination request based on changed circumstances under 8 C.F.R. § 1003.19(e).
Why It Matters
This decision is a useful reminder of the multi-step procedure California immigration practitioners must navigate before bringing federal habeas challenges to ongoing detention. Skipping the BIA appeal will almost always lead to dismissal for failure to exhaust, even when the underlying constitutional claim has substantive merit.
For California detainees in pre-final-removal-order custody under § 1226(a), the case also clarifies that Zadvydas is not a one-size-fits-all detention-length theory. The Zadvydas framework is tied to post-removal-order detention. Detainees pursuing prolonged-detention claims while removal proceedings are still pending must look to other doctrines — typically the multi-factor due-process analysis applied to § 1226(a) detentions.