{"id":435,"date":"2026-01-20T12:00:00","date_gmt":"2026-01-20T12:00:00","guid":{"rendered":"https:\/\/california.shuster.info\/?p=435"},"modified":"2026-01-20T12:00:00","modified_gmt":"2026-01-20T12:00:00","slug":"francois-warden-habeas-bia-exhaustion-zadvydas-1226a","status":"publish","type":"post","link":"https:\/\/california.shuster.info\/?p=435","title":{"rendered":"Francois v. Warden \u2014 S.D. Cal. Dismisses Haitian Detainee’s Habeas Claims for Failure to Exhaust BIA Appeal Rights and Lack of Final Removal Order"},"content":{"rendered":"
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Case<\/dt>\n
Francois v. Warden, Otay Mesa Detention Center<\/dd>\n
Court<\/dt>\n
U.S. District Court \u2014 Southern District of California<\/dd>\n
Date Decided<\/dt>\n
2026-01-20<\/dd>\n
Docket No.<\/dt>\n
3:25-cv-03635<\/dd>\n
Status<\/dt>\n
Unreported \/ Non-Citable<\/dd>\n
Topics<\/dt>\n
Section 2241 habeas, BIA exhaustion, individualized custody review, Zadvydas v. Davis, 8 U.S.C. \u00a7 1226(a)<\/dd>\n<\/dl>\n<\/div>\n

Background<\/h2>\n

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. \u00a7 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.<\/p>\n

He filed a federal habeas petition raising four claims: (1) due-process violation in being denied an individualized custody review; (2) Zadvydas\/INA \u00a7 241(a)(6) prolonged-detention; (3) Administrative Procedure Act violation; and (4) INA \u00a7 236(a) mandatory-detention violation.<\/p>\n

The Court’s Holding<\/h2>\n

The court dismissed the petition in part and denied it in part.<\/p>\n

It first rejected the government’s jurisdictional argument under 8 U.S.C. \u00a7 1252, joining the line of Southern District of California decisions holding that \u00a7\u00a7 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.<\/p>\n

On the due-process claim, the court found two flaws. First, the record showed Francois had in fact received individualized custody reviews \u2014 four of them \u2014 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<\/em>, Leonardo v. Crawford<\/em>), 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.<\/p>\n

On the Zadvydas claim, the court explained that Zadvydas v. Davis<\/em> applies to detention after a final order of removal under 8 U.S.C. \u00a7 1231(a)(6). Francois has no final removal order; he is detained under \u00a7 1226(a) while removal proceedings are pending. The Zadvydas analysis simply does not apply to his situation.<\/p>\n

Key Takeaways<\/h2>\n