Unreported / Non-Citable
Background
Silah Muhamad, a citizen of The Gambia, entered the United States without inspection on February 7, 2024. Border Patrol agents encountered him near San Diego, served him with a Notice to Appear, and released him on an Order of Release on Recognizance. On July 23, 2026, he was charged with Driving While License Suspended in the Second Degree under a Washington statute, and that charge remains pending. At a scheduled ICE check-in on August 26, 2026, officers told him his release order was being revoked because of the pending charge. He was detained and remains at Otay Mesa Detention Center.
Muhamad filed a petition for a writ of habeas corpus under 28 U.S.C. § 2241 on September 16, 2026, challenging the lawfulness of his detention under 8 U.S.C. § 1226(a) and the Fifth Amendment's Due Process Clause. Respondents, including the Secretary of Homeland Security, agreed that he is detained under § 1226(a). They argued that the petition is moot because he is receiving the relief he is entitled to, and alternatively that he should first exhaust administrative remedies. The court ordered supplemental briefing on exhaustion, which Muhamad filed on October 26, 2026. It is undisputed that he has not yet received a bond hearing.
The Court’s Holding
The court held the petition is not moot. The party asserting mootness bears a heavy burden to show that no effective relief remains, and a case is not moot where any effective relief may be granted. Relying on a recent Southern District of California decision, Cortez Trujillo v. Marquardt, the court reasoned that the mere fact that a bond hearing can be scheduled does not carry Respondents' burden. No hearing had yet occurred, so the court could still provide relief.
The court acknowledged that habeas claims carry a prudential exhaustion requirement under Ninth Circuit law, which a district court may waive when remedies are inadequate, pursuit would be futile, or irreparable injury would result. Muhamad argued that each added day spent litigating bond before an immigration judge and possibly the Board of Immigration Appeals prolongs a detention that should never have begun without a hearing. The court made no separate irreparable-injury finding. It concluded that, in this instance, requiring exhaustion puts form over substance and would unnecessarily delay a remedy that Respondents concede is currently available to him.
The court granted the petition in part and ordered Respondents to arrange an individualized bond hearing before an immigration judge within seven days, unless the noncitizen requests a continuance. At the hearing the noncitizen bears the burden of showing by a preponderance of the evidence that he is not a danger to the community or a flight risk, citing Rodriguez Diaz v. Garland. If no continuance is requested and no hearing occurs within seven days, Muhamad shall be released. If the immigration judge finds bond appropriate, the judge must consider alternative conditions of release and his ability to pay. Respondents must file a status report by November 11, 2026. The court did not decide the due process challenge to the revocation of his release order, because it was first raised in the supplemental brief rather than the operative petition. If he is not released on bond, he may file an amended petition by November 20, 2026, that may raise that claim.
Key Takeaways
- A government assertion that a bond hearing could be scheduled does not moot a § 1226(a) habeas petition when no hearing has actually been held.
- Prudential exhaustion may be excused where requiring a bond request first would only delay a remedy the government concedes is available.
- The relief is a bond hearing, not release, and the detainee must show by a preponderance of the evidence that he is neither a danger nor a flight risk.
- Release is ordered only if no hearing occurs within seven days and the noncitizen has not requested a continuance.
- A claim raised first in a supplemental brief was not decided, and the court allowed it to be pleaded in an amended petition if bond is not obtained.
Why It Matters
This is a short, unpublished district court order, not a precedential ruling, and it rests largely on another district court decision. Its practical lesson is that the government's willingness to schedule a bond hearing does not defeat a pending habeas petition, and that exhaustion arguments may fail where the remedy is conceded.
Much remains open. The court did not decide whether revoking the release order was lawful or violated due process, and it did not order release outright. The outcome of the bond hearing and of any amended petition will determine whether those questions are reached.