Alic v. Department of Homeland Security / Immigration Customs Enforcement

— 1 — — 2 — — 3 — — 4 — — 5 — — 6 — — 7 — — 8 — 9 UNITED STATES DISTRICT COURT 10 SOUTHERN DISTRICT OF CALIFORNIA — 11 — 12 DENIS ALIC, Case No.: 25-cv-01749-AJB-BLM 13 Petitioner, ORDER GRANTING PETITION 14 v. AND ISSUING WRIT OF HABEAS CORPUS 15 DEPARTMENT OF HOMELAND SECURITY/IMMIGRATION CUSTOMS 16 (Doc. No. 1) ENFORCEMENT, et al., — 17 — Respondents. — 18 — 19 Petitioner Denis Alic (“Petitioner”), appearing pro se, has been detained in the 20 custody of the United States Department of Homeland Security (“DHS”), Bureau of 21 Immigration and Customs Enforcement (“ICE”), at the Otay Mesa Detention Center in 22 California since July 2024. (Doc. No. 1.) On July 7, 2025, Petitioner filed the instant 23 petition for writ of habeas corpus under 28 U.S.C. § 2241 (the “Petition,”) and related 24 motion to grant release (“Motion”),1 seeking relief due to prolonged detention in — 25 — — 26 — 27 1 Although the Motion was docketed as a separate motion filing, the Petition refers to the “attached motion” as providing “more detailed information” (Doc. No. 1 at 7), indicating that Petitioner may have — 28 — 1 immigration custody pending removal. (See Doc. Nos. 1; 2.) For the reasons set forth 2 below, the Court GRANTS the Petition. 3 I. BACKGROUND 4 Petitioner was born on November 22, 1993, in Croatia after Petitioner’s parents, 5 citizens of Bosnia and Herzegovina (hereafter “Bosnia”), fled their native country during 6 the Bosnian War. (See Doc. Nos. 2 at 2; 2-1 at 14; 11; see also Declaration of Marielle 7 Ceja (“Ceja Decl.”), Doc. No. 5-1, at ¶¶ 5, 12; Doc. No. 5-2 at 13.) On February 8, 1996, 8 Petitioner was admitted to the United States as a lawful permanent resident, as a child of a 9 refugee. (Doc. Nos. 2-1 at 20; 5 at 2; 5-2 at 12.) 10 From 2019 to 2024, Petitioner was arrested and convicted multiple times, including 11 convictions for methamphetamine possession and felony burglary. (Doc. No. 5-2 at 5, 11, 12 13–14.) Petitioner has since completed his sentences. (See Doc. No. 6 at 5 (Letter from 13 Tamika Nelson, Chief Probation Officer, San Diego County Probation Department).) On 14 December 29, 2023, ICE issued a Notice to Appear, charging Petitioner with removability 15 under 8 U.S.C. 1137(a)(2)(B)(i) as someone convicted of a crime relating to a controlled 16 substance. (DHS Notice to Appear, Doc. No. 5-2 at 2–4.) After Petitioner failed to appear 17 at the removal hearing on February 28, 2024, an Immigration Judge ordered Petitioner 18 removed to Croatia. (Removal Order, Doc. No. 2-1 at 1–5; see also Doc. No. 1 at 2, 4.) 19 On May 26, 2024, ICE “encountered [Petitioner] during immigration checks at the 20 George Bailey Detention Center (GBDC) California State Prison.” (Doc. No. 5-2 at 12; see 21 also Doc. No. 5 at 2.) On July 11, 2024, Petitioner was transferred to ICE custody from 22 GBDC pursuant to an immigration detainer. (Ceja Decl. ¶ 7; Doc. Nos. 1 at 4; 2 at 1; 5 at 23 2; 5-2 at 10, 12.) 24 From September 2024 through to the present, ICE has been attempting to procure 25 travel documents for Petitioner from either Croatia or Bosnia. (See generally Doc. Nos. 1; 26 2; 5; 6.) On November 1, 2024, ICE submitted a request for travel documents to the 27 Croatian Consulate. (Ceja Decl. ¶ 9.) On December 18, 2024, “the Government of Croatia 28 informed [Respondents] that Petitioner’s identity was unverifiable based on the provided 1 information and declined to issue a travel document.” (Ceja Decl. ¶ 10; see also Doc. No. 2 2-1 at 14, 16.) From February to May 2025, Respondents engaged with the Bosnian 3 Consulate to determine whether the Government of Bosnia would issue travel documents 4 for Petitioner. (Ceja Decl. ¶¶ 11–16; see also Doc. Nos. 2 at 2; 2-1 at 24.) On July 22, 2025, 5 the Bosnian Consulate declined to issue travel documents and informed Respondents that 6 it “believes Petitioner is a citizen of Croatia.” (Ceja Decl. ¶ 18; Doc. No. 6 at 1.) At which 7 point, Respondents submitted a renewed request to Croatia that remains pending to date. 8 (Ceja Decl. ¶ 19.) 9 During this time, Petitioner signed forms ICE brought him, provided information as 10 requested, and requested status updates. (See Doc. Nos. 2-1 at 9–10, 14–18, 22–24.) ICE 11 procured both of Petitioner’s parents’ passport information and spoke with Petitioner’s 12 mother and sister; however, ICE was unable to procure a copy of Petitioner’s birth 13 certificate or that of Petitioner’s mother because allegedly no such documents exist. (Ceja 14 Decl. ¶¶ 12, 15, 17; Doc. No. 6 at 2.) ICE issued a decision to continue Petitioner’s 15 detention on April 13, 2025. (Decision to Continue Detention, Doc. No. 2-1 at 19–20.) 16 On July 7, 2025, Petitioner filed the instant Petition and related Motion. (Doc. Nos. 17 1; 2.) The Court issued a briefing schedule, set a hearing, and ordered Petitioner appear in 18 person. (Doc. Nos. 3; 7; 8.) On August 11, 2025, Respondents filed a return, opposing the 19 petition. (Doc. No. 5.) Petitioner filed a traverse on September 12, 2025. (Doc. No. 6.) The 20 Court held a hearing on September 29, 2025. (Doc. No. 11.) Petitioner and counsel for 21 Respondents appeared, along with a Deportation Officer. (Id.) This order follows. 22 II. LEGAL STANDARD 23 To succeed on a habeas petition, a petitioner must show that he is “in custody in 24 violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. 25 § 2241(c)(3). Fifth Amendment’s Due Process Clause provides that “[n]o person 26 shall . . . be deprived of life, liberty, or property, without due process of law.” U.S. Const. 27 amend. V. “[T]he Due Process Clause applies to all ‘persons’ within the United States, — 28 — 1 including aliens, whether their presence here is lawful, unlawful, temporary, or 2 permanent.” Zadvydas v. Davis, 533 U.S. 678, 693 (2001). 3 “When an alien has been found to be unlawfully present in the United States and a 4 final order of removal has been entered, the Government ordinarily secures the alien’s 5 removal during a subsequent 90–day statutory ‘removal period,’ during which time the 6 alien normally is held in custody.” Zadvydas, 533 U.S. at 682 . “An alien ordered removed 7 who is inadmissible . . . , removable[,] . . . or who has been determined by the Attorney 8 General to be a risk to the community or unlikely to comply with the order of removal, 9 may be detained beyond the removal period[.]” 8 U.S.C. § 1231 (a)(6). “[I]n light of the 10 Constitution’s demands, . . . an alien’s post-removal-period detention [is limited] to a 11 period reasonably necessary to bring about that alien’s removal from the United 12 States[,] . . . not . . . indefinite detention.” Zadvydas, 533 U.S. at 689 . “‘[F]or the sake of 13 uniform administration in the federal courts,’ and based on its reading of Congress’s 14 probable intent, the [Supreme] Court created a ‘presumptively reasonable period of 15 detention’ of six months.” Xi v. U.S. I.N.S., 298 F.3d 832, 840 (9th Cir. 2002) (quoting 16 Zadvydas, 533 U.S. at 680 ). 17 In challenging detention pursuant to § 2241, the noncitizen has the initial burden to 18 “provide[ ] good reason to believe that there is no significant likelihood of removal in the 19 reasonably foreseeable future.” Zadvydas, 533 U.S. at 701 . If the noncitizen satisfies the 20 initial burden, then the Government “must respond with evidence sufficient to rebut that 21 showing.” Id. If the Government fails to meet its burden, then the non-citizen must be 22 released from detention. See Jennings v. Rodriguez, 583 U.S. 281, 299 (2018). 23 III. DISCUSSION 24 Petitioner asserts that there is no significant likelihood of removal in the reasonably 25 foreseeable future because he has been detained for over a year, both Bosnia and Croatia 26 have refused to issue travel documents, no additional documentation of his identity such as 27 a birth certificate exists, and he has cooperated with ICE in his removal. (See generally 28 Doc. Nos. 1; 2; 6; 11.) 1 Respondents argue that “it would be premature to reach that conclusion before 2 permitting ICE an opportunity to complete its diligent efforts to effect Petitioner’s 3 removal.” (Doc. No. 5 at 5.) The only effort Respondents detail is that “ICE renewed the 4 travel document request with Croatia and is working with partner agencies to obtain 5 identity documents for Petitioner.” (Id.) When questioned at oral arguments, Respondents 6 proffered no additional information, reiterating that “at some point ICE will decide it’s not 7 significantly likely and release him, but they haven’t reached that point yet.” (Doc. No. 8 11.) Respondents further confirmed that, to their knowledge, no additional documentation 9 was provided with the renewed request. (Id.) Curiously, per Respondents’ Counsel, ICE 10 has not reviewed Petitioner’s A File which would contain all of his immigration documents 11 including the issuance of his Legal Permanent Resident status in 1996 as the child of 12 refugee parents. (Id.) Certainly evidence of identity and origin should be contained therein. 13 As argued in the traverse, Petitioner testified that a birth certificate does not exist for 14 him. (Id.) When questioned whether either Bosnia or Croatia has a history of taking 15 individuals who lack a birth certificate from the requisite country, a Deportation Officer 16 testified at the hearing that, to her knowledge, neither country would issue travel documents 17 to such an individual. (Id.) 18 Based on the papers and the hearing, Petitioner met the initial burden of 19 demonstrating that removal is not significantly likely in the reasonably foreseeable future. 20 See, e.g., Nguyen v. Scott, No. 2:25-CV-01398, 2025 WL 2419288 , at *14 (W.D. Wash. 21 Aug. 21, 2025) (finding a petitioner carried his burden by demonstrating he had none of 22 the information requested by the Vietnamese self-declaration form, no known connections 23 in Vietnam, and fled the country as a refugee); Lopez-Cacerez v. McAleenan, No. 19-CV24 1952-AJB-AGS, 2020 WL 3058096 , at *5 (S.D. Cal. June 9, 2020) (“[District] courts have 25 noted that it is appropriate to grant habeas relief where there is no definitive answer from 26 the target county after several months as to whether it would issue travel papers for a 27 detainee.”) (citations omitted). 28 /// 1 Moreover, Respondents failed to provide any substantive rebuttal of Petitioner’s 2 showing. Despite a renewed request for travel documents pending with the Croatian 3 Consulate, Respondents fail to identify any basis—let alone a reasonable one—for the 4 belief that this time Croatia’s response would be different. See, e.g., Lopez-Cacerez, 2020 5 WL 3058096 , at *6 (“[G]eneral indications that U.S. agencies have been in discussions 6 with [target country] regarding repatriation efforts do not indicate that those discussions 7 will result in the timely removal of Petitioner, as it is unclear whether those efforts will be 8 successful.”); Nibkakhsh-Tali v. Mukasey, No. CV07-1526PHX-NVW, 2008 WL 9 2328354, at *8 (D. Ariz. June 4, 2008) (“In light of the two denial letters, and Mr. 10 Jahansoozan’s inability to even speculate as to when travel documents might be 11 forthcoming, Respondent[s] have not come forth with evidence establishing that it is clear 12 that there is a significant likelihood of removal, much less in the reasonably foreseeable 13 future.”). In fact, testimony by the Deportation Officer calls into question whether a copy 14 of a Croatian birth certificate—were Petitioner to even have one—would be acceptable to 15 Croatia under the circumstances of this case. ICE’s belief based on no articulable evidence 16 is not sufficient. See, e.g., Nguyen, 2025 WL 2419288 , at *16 (finding the Government 17 failed to meet its burden because showing that “there is at least some possibility that 18 Vietnam will accept [the p]etitioner at some point . . . is not the same as a significant 19 likelihood that he will be accepted in the reasonably foreseeable future”). 20 At oral arguments, Respondents noted that Petitioner “has not been deemed non21 cooperative” but asserted that Petitioner’s sister has the necessary documentation and is 22 refusing to cooperate. (Doc. No. 11.) Respondents fail to provide any basis for this belief 23 or articulate what that documentation is, especially considering Petitioner avers that no 24 birth certificate exists and that his sister does not have a copy of any of his other documents. 25 (See id.) Even assuming arguendo that Respondents are correct, “Respondent[s] proffer[] 26 nothing to suggest that there is more Petitioner could do to facilitate obtaining a birth 27 certificate through family members.” See Kebe v. Gurule, No. CV161116PHXJATJFM, — 28 — 2016 WL 6404170 , at *8 (D. Ariz. Sept. 29, 2016), report and recommendation adopted, 1 || No. CV-16-01116-PHX-JAT, 2016 WL 6277546 (D. Ariz. Oct. 27, 2016) (holding that a 2 || petitioner cannot be deemed uncooperative for the inaction of family members where the 3 || petitioner himself provides affirmative assistance in obtaining records). 4 Considering that Petitioner met his burden and that Respondents fail to proffer a 5 substantive rebuttal, the Court finds that “there is no significant likelihood of removal in 6 || the reasonably foreseeable future.” Zadvydas, 533 U.S. at 701 . Thus, the Court holds that 7 ||continued detention of Petitioner is “unreasonable and no longer authorized.” See 8 || Zadvydas, 533 U.S. at 680 . 9 CONCLUSION 10 For the reasons stated above, the Court GRANTS the Petition for habeas relief 11 ||}(Doc. No. 1) and ISSUES a wnit of habeas corpus requiring Petitioner’s immediate release 12 || from custody.” The Court further ORDERS: 13 1. Respondents must release Petitioner from custody within 48 hours of the 14 || electronic docketing of this Order. 15 2. No later than 12:00 PM on October 3, 2025, counsel for Respondents must 16 || file and serve a declaration averring that Respondents have complied with this Order and 17 Petitioner has been released. 18 3. Respondents and all their officers, agents, employees, attorneys, and persons 19 || acting on their behalf or in concert with them are prohibited from removing Petitioner to a 20 ||country other than Croatia or Bosnia without notice and a meaningful opportunity to be 21 heard in reopened removal proceedings with a hearing before an immigration judge. 22 IT IS SO ORDERED. 23 Dated: September 30, 2025 © 24 Hon, Anthony J.Battaglia 25 United States District Judge — 26 — — 27 — 28 Having so ordered, the Court DENIES as moot Petitioner’s Motion for Release (Doc. No. 2.)