Artem Mizgirev, et al. v. Eric Rokosky, et al.

• Court: District Court, D. Arizona
• Decided: May 12, 2026
• Docket: 2:26-cv-01969
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Artem Mizgirev, et al., No. CV-26-01969-PHX-SHD (JZB)

10 Petitioners, REPORT AND RECOMMENDATION

11 v.

12 Eric Rokosky, et al.,

13 Respondents. 14 15 TO THE HONORABLE SHARAD H. DESAI, UNITED STATES DISTRICT 16 JUDGE: 17 Pending before the Court is Petitioner Artem Mizgirev and Olga Mizgireva 18 (“Petitioners”) “Petition for Writ of Habeas Corpus.”1 (Doc. 1.) 19 I. SUMMARY OF CONCLUSIONS. 20 Petitioners are subject to mandatory detention pursuant to 8 U.S.C. § 1225(b)(2) by 21 the Department of Homeland Security (“DHS”) Immigration and Customs Enforcement 22 (“ICE”) and has been detained since September 8, 2024. (Id. at 2.) Most recently, on 23 January 28, 2026, an Immigration Judge (“IJ”) denied Petitioners’ asylum applications and 24 ordered that Petitioners be removed. (Id. at 3, 40, 42.) Petitioner appealed the decision to 25 the Board of Immigration Appeals (“BIA”). (Id. at 3, 44–45.) Their appeal remains 26 pending. 27 Considering Petitioners’ 20-month detention and the liberty interest at stake, the

28 1 This action was referred to this Court “for further proceedings and a report and recommendation”. (Doc. 4 at 4.) 1 Court concludes that Petitioners’ continued detention offends due process as applied in the 2 specific circumstances of this action. Therefore, the Court recommends the Petition be 3 granted in part and denied in part. Specifically, the Court recommends that Petitioners 4 be granted an individualized bond hearing. Furthermore, the Court recommends that, at the 5 bond hearing, the government bears the burden of proving Petitioners are a danger or flight 6 risk by clear and convincing evidence. 7 II. BACKGROUND. 8 Petitioner Artem Mizgirev is a native of the Czech Republic and Petitioner Olga 9 Mizgireva is a native of the Russian Federation. (Id. at 29.) Both are citizens of the Russian 10 Federation. (Id. at 2.) On or about September 7, 2024, Petitioners presented themselves at 11 a port of entry pursuant to a U.S. Customs and Border Patrol (“CBP”) One scheduled 12 appointment. (Id.) Upon arrival, Petitioners were served with Notices to Appear that 13 alleged that they did not “possess or present a valid immigrant visa, reentry permit, border 14 crossing identification card, or other valid entry document[.]”2 (Id. at 29.) Petitioners were 15 not admitted or paroled after inspection. (Id.) 16 On November 26, 2024, Petitioners applied for asylum at this time. (Id.) On May 17 13, 2025, an IJ denied Petitioners’ asylum applications and ordered them removed. (Id. at 18 7.) Petitioners timely appealed the decision to the BIA. (Id. at 3.) On December 3, 2025, 19 the BIA remanded the decision to the IJ for further proceedings. (Id. at 25–26.) On January 20 28, 2026, the IJ issued an order denying Petitioners’ asylum applications and ordered them 21 removed to Russia. (Id. at 40–42.) On February 18, 2026, Petitioners appealed the IJ’s 22 decision to the BIA. (Id. at 44–45.) The appeal remains pending. 23 On March 23, 2026, Petitioners filed the instant Petition. (Id. at 1.) In their Petition, 24 Petitioners assert that: (1) their prolonged detention without a bond hearing violates the

25 2 I.e., Petitioners are subject to removal under Immigration and Nationality Act (“INA”) § 212(a)(7)(A)(i)(I)—codified at 8 U.S.C. § 1182(a)(7)(A)(i)(I). This provision 26 states that an immigrant “who is not in possession of a valid unexpired immigrant visa, reentry permit, border crossing identification card, or other valid entry document required 27 by this chapter, and a valid unexpired passport, or other suitable travel document, or document of identity and nationality if such document is required under the regulations 28 issued by the Attorney General under section 1181(a) of this title . . . is inadmissible.” 8 U.S.C. §1182(a)(7)(A)(i)(I). 1 Due Process Clause of the Fifth Amend; and (2) that her due process requires a bond 2 hearing where a noncitizen’s immigration detention has become prolonged. (Id. at 3–4.) 3 On March 26, 2026, the District Court ordered Respondents to respond to the Petition. 4 (Doc. 5.) 5 On April 23, 2026, Respondents filed their Response. (Doc. 13.) In their Response, 6 Respondents assert that: (1) Petitioners must be detained as arriving noncitizens under 8 7 U.S.C. § 1225(b)(2); and (2) Petitioners’ due process claims are foreclosed by the entry 8 fiction doctrine. (Id. at 2–7.) On April 30, 2026, Petitioners filed their Reply.3 (Doc. 15.) 9 For the following reasons, the Court finds Petitioners’ entitled to a bond hearing. 10 III. 28 U.S.C. § 2241 WRIT OF HABEAS CORPUS. 11 The district court is empowered to issue a writ of habeas corpus where an individual 12 is held “in custody in violation of the Constitution or laws or treaties of the United States[.]” 13 28 U.S.C. § 2241(c)(3). The language of § 2241 and “the common-law history of the writ” 14 makes clear “that the essence of habeas corpus is an attack by a person in custody upon the 15 legality of that custody, and that the traditional function of the writ is to secure release from 16 illegal custody.” Preiser v. Rodriguez, 411 U.S. 475 484 (1973) (noting that the writ of 17 habeas corpus “was early recognized by [the Supreme] Court as a ‘great constitutional 18 privilege’”) (quoting Ex parte Bollman, 8 U.S. (4 Cranch) 75, 95 (1807)); cf. In re Kaine, 19 55 U.S. (14 How.) 103 (1852) (applying the writ of habeas corpus in the immigration 20 context). The Supreme Court has made clear that § 2241 applies to noncitizens4 challenging 21 3 The Court has read, but does not summarize, Petitioners’ Reply. 22 4 Undersigned shall use the term ‘noncitizen’ unless a quoted statute or court decision uses the term ‘alien.’ This usage is congruent with the Ninth Circuit Court of Appeals’ 23 precedent, such as Avilez v. Garland, which specifically stated: This opinion uses the term noncitizen unless quoting language from the 24 immigration statutes or past opinions containing the term alien. There are two reasons behind this choice. First, use of the term noncitizen has become 25 a common practice of the Supreme Court[.] Second, even if that were not the case, careful writers avoid language that reasonable readers might find 26 offensive or distracting—unless the biased language is central to the meaning of the writing. The word alien can suggest “strange,” “different,” 27 “repugnant,” “hostile,” and “opposed,” . . . while the word noncitizen, which is synonymous, . . . avoids such connotations. Thus, noncitizen seems the 28 better choice. Avilez v. Garland, 69 F.4th 525, 527 n.1 (9th Cir. 2023) (cleaned up). 1 their immigration detention. See Zadvydas v. Davis, 533 U.S. 678, 687 (2001). 2 Because Petitioners only challenge their prolonged civil detention, the Court has 3 jurisdiction to address the instant Petition. See Lopez-Marroquin v. Barr, 955 F.3d 759, 4 759 (9th Cir. 2020) (“[D]istrict courts retain jurisdiction under 28 U.S.C. § 2241 to consider 5 habeas challenges to immigration detention that are sufficiently independent of the merits 6 of the removal order[.]”). 7 IV. DISCUSSION. 8 A. Statutory Basis for Petitioner’s Detention. 9 “A noncitizen’s place within this statutory scheme can affect whether his detention 10 is mandatory or discretionary, as well as the kind of review process available to him if he 11 wishes to contest the necessity of his detention.” Avilez v. Garland, 69 F.4th 525, 529 (9th 12 Cir. 2023) (cleaned up). Petitioners do not alleged what provision they are currently held 13 under. (Doc. 1.) However, they have noted that they have had a hearing regarding asylum 14 before an IJ. (Id. at 3.) Respondent asserts that Petitioners are detained pursuant to 8 U.S.C. 15 § 1225(b)(2). (Doc. 13 at 2–5.) Based upon undersigned’s independent review of the 16 record, the Court finds that Petitioners are currently detained pursuant to 8 U.S.C. § 17 1225(b)(2). 18 B. Due Process. 19 The Court turns to Petitioners’ due process claim. The Court’s due process analysis 20 is separated into two steps: “[F]irst[, the Court] ask[s] whether there exists a liberty or 21 property interest of which a person has been deprived, and if so[, the Court] ask[s] whether 22 the procedures followed by the [government] were constitutionally sufficient.” Swarthout 23 v. Cooke, 562 U.S. 216, 219 (2011). 24 1. Liberty Interest. 25 “A liberty interest may arise from the Constitution itself5 . . . or it may arise from 26 an expectation or interest created by state laws or policies.” Wilkinson v. Austin, 545 U.S. 27 5 “Freedom from imprisonment—from government custody, detention, or other 28 forms of physical restraint—lies at the heart of the liberty that Clause protects.” Zadvydas, 533 U.S. at 690. 1 209, 221 (2005) (citations omitted). If a liberty interest is found, the Court then determines 2 whether the administrative procedures are sufficient considering the “particular situation.”6 3 Mathews v. Eldridge, 424 U.S. 319, 334 (1976) (quoting Morrissey v. Brewer, 408 U.S. 4 471, 481 (1972)). 5 In the instant action, the parties disagree whether Petitioners possesses a cognizable 6 liberty interest. Petitioners argue that they have a liberty interest in being free from 7 prolonged civil commitment. (Doc. 1 at 3–4.) Respondents contend that the entry fiction 8 doctrine limits Petitioner’s due process liberty interests to those procedures created by 9 statute. (Doc. 13 at 5–7.) The Court disagrees with Respondents’ reliance upon the entry 10 fiction doctrine in the instant action. 11 The Court does not find that the entry fiction doctrine forecloses Petitioners’ due 12 process claim as to their present detention. The entry fiction doctrine asserted by 13 Respondents is based upon the “distinction between those aliens who have come to our 14 shores seeking admission, such as petitioner, and those who are within the United States 15 after an entry, irrespective of its legality.” Leng May Ma v. Barber, 357 U.S. 185, 187 16 (1958). The Supreme Court has noted that the latter category of noncitizens have 17 “additional rights and privileges not extended to those in the former category who are 18 merely ‘on the threshold of initial entry.’” Id. (quoting Shaughnessy v. U.S. ex rel. Mezei, 19 345 U.S. 206, 212 (1953)); Dep’t of Homeland Sec. v. Thuraissigiam, 591 U.S. 103, 139 20 (2020) (“Whatever the procedure authorized by Congress is, it is due process as far as an 21 alien denied entry is concerned”) (quoting U.S. ex rel. Knauff v. Shaughnessy, 338 U.S. 22 537, 544 (1950)). Those noncitizens who are on the “threshold of initial entry” are not 23 considered “to have ‘effected an entry[.]’” Thuraissigiam, 591 U.S. at 140 (quoting 24 Zadvydas, 533 U.S. at 693). Put differently, “[w]hen an alien arrives at a port of entry— 25 for example, an international airport—the alien is on U.S. soil, but the alien is not 26 6 The Court notes that due process is a flexible concept. This, however, “does not 27 mean that judges are at large to apply it to any and all relationships. Its flexibility is in its scope once it has been determined that some process is due; it is a recognition that not all 28 situations calling for procedural safeguards call for the same kind of procedure.” Morrissey, 408 U.S. at 481. 1 considered to have entered the country[.]” Thuraissigiam, 591 U.S. at 139. Therefore, 2 while a citizen may be physically present within the country, they were “still in theory of 3 law at the boundary line and had gained no foothold in the United States[.]” Zadvydas, 533 4 U.S. at 693 (quoting Kaplan v. Tod, 267 U.S. 228, 257–58 (1925)). 5 This distinction is predicated upon the following “fundamental proposition: ‘The 6 power to admit or exclude aliens is a sovereign prerogative.’” Thuraissigiam, 591 U.S. at 7 139 (cleaned up) (quoting Landon v. Plasencia, 459 U.S. 21, 32 (1982)). “The Constitution 8 gives ‘the political department of the government’ plenary authority to decide which aliens 9 to admit, . . . and a concomitant of that power is the power to set the procedures to be 10 followed in determining whether an alien should be admitted.” Thuraissigiam, 591 U.S. at 11 139 (quoting Nishimura Ekiu v. United States, 142 U.S. 651, 659 (1892)). 12 Respondents, based upon the foregoing, extrapolate that Petitioners, due to the entry 13 fiction doctrine, “are not entitled to any procedure beyond that which is prescribed by 14 statute.” (Doc. 13 at 5.) In other words, Respondents contend that Petitioners, who have 15 not legally effected an entry but are still within the geographical bounds of the U.S., do not 16 have a cognizable Fifth Amendment liberty interest because: (1) they only has a due 17 process interest in those rights regarding admission that Congress has provided by statute; 18 and (2) Congress only provided for temporary parole at the complete discretion of the 19 attorney general. See (id. at 5–7.) 20 The Court disagrees with Respondents approach. Based on a review of current 21 district court interpretation and a plain reading of Supreme Court precedent, it appears that, 22 outside of the context of admissions, a noncitizen has a liberty interest to be free from civil 23 confinement once their detention has become prolonged.7 24 Undersigned is persuaded by the interpretation of numerous courts, both in this 25 District and its sister districts, that have held the entry fiction applies to the procedural 26 7 Undersigned acknowledges there is an internal split amongst the learned jurists 27 within the District of Arizona on the issue of due process for § 1225(b) petitioners. Compare Guevara Serrano v. Bondi, No. CV-26-00110-PHX-DJH, at *7 (D. Ariz. Mar. 9, 28 2026) (granting immediate release) with Escalona Plaza v. Rosa, No. CV-26-00195-PHX- MTL (MTM) (D. Ariz. Mar. 16, 2026) (denying petition for writ of habeas corpus). 1 rights of noncitizens regarding admission, not every procedure occurring in the 2 immigration context—i.e., the entry fiction doctrine is inapplicable to challenges of a 3 petitioner’s length of detention. See D.V.D. v. U.S. Dep’t of Homeland Sec., No. CV 25- 4 10676-BEM, 2026 WL 521557, at *28–31 (D. Mass. Feb. 25, 2026)8; see also Padilla v. 5 U.S. Immigr. & Customs Enf’t, 704 F. Supp. 3d 1163, 1170–72 (W.D. Wash. 2023). These 6 decisions, their progeny, and similar such decisions in numerous district courts interpreting 7 the entry fiction doctrine, are based on a finding that arriving noncitizens, such as 8 Petitioner, have “only those rights regarding admission that Congress has provided by 9 statute.”9 Thuraissigiam, 591 U.S. at 140 (emphasis added). 10 For example, the district court in D.V.D v. U.S. Dep’t of Homeland Sec. recently 11 illustrated why the entry fiction doctrine does not foreclose Petitioners’ as-applied 12 challenge to the length of their detention. In D.V.D., the court noted that the, although the 13 entry fiction doctrine “provide[d] an exception to the otherwise geographic scope of the 14 Due Process Clause,” the doctrine only impacted those due process rights “regarding 15 admission.” D.V.D., 2026 WL 521557, at *30 (cleaned up) (quoting Thuraissigiam, 591 16 U.S. at 140). The court proceeded to “distinguish rights regarding admission,” which 17 relates to the government’s “sovereign authority to admit noncitizens only in cases as it 18 may see fit,” with other interests that might be implicated by the Due Process Clause. 19 D.V.D., 2026 WL 521557, at *30 (cleaned up). Because the D.V.D. petitioners neither 20 8 While the Court acknowledges that D.V.D. is an out-of-circuit decision that is 21 currently stayed by the First Circuit, undersigned is nonetheless persuaded by the analysis contained within D.V.D. Furthermore, undersigned does not stand alone within the District 22 of Arizona in relying upon D.V.D. See Guevara Serrano, No. CV-26-00110-PHX-DJH, at *3–4. 23 9 There is a current split between the learned magistrate judges within the District of Arizona on the entry fiction doctrine. Compare Balayan v. Unknown Parties, 2:26-cv- 24 00072-SMB (DMF), at *5–6 (D. Ariz. Feb. 19, 2026) (pending R&R recommending dismissal based on entry fiction doctrine) and Mozhubaev v. Rosa, 2:26-cv-00505-DJH 25 (JFM), at *8–9 (D. Ariz. Apr. 10, 2026) (pending R&R recommending dismissal based on entry fiction doctrine) with Avakian v. Rokosky, 2:26-cv-00104-SHD (CDB), at *18 n.7 (D. 26 Ariz. Feb. 24, 2026), report and recommendation adopted, 2:26-cv-00104-SHD (D. Ariz. Mar. 17, 2026) (finding that the entry fiction doctrine does not preclude an as-applied 27 challenge to length of detention) and Kaur v. Lyons, 2:26-cv-00217-PHX-KML (ASB), at *5–7 (D. Ariz. Mar. 24, 2026) report and recommendation adopted, 2:26-cv-00217-KML 28 (D. Ariz. Apr. 9, 2026) (finding that the entry fiction doctrine does not preclude an as- applied challenge to length of detention). 1 challenged their orders of removal nor the process resulting in those orders, the 2 government’s sovereign prerogative was not implicated. Id. at *30–31 (citing Johnson v. 3 Guzman Chavez, 594 U.S. 523, 536 (2021)). Hence, the entry fiction doctrine did not bar 4 the petitioners’ non-admissions due process challenges. Id. at *31. 5 In a truncated fashion, the court in Padilla refuted the government’s entry fiction 6 argument. There, the court rejected the government’s claim that the entry fiction doctrine 7 broadly applied to any due process challenge, noting that such an assertion “is untethered 8 to the claim in Thuraissigiam and the [Supreme] Court’s reasoning.” Padilla, 704 F. Supp. 9 3d at 1171. Rather, the entry fiction doctrine is constrained “only [to] those rights regarding 10 admission that Congress has provided by statute.” Id. at 1172 (emphasis omitted) (quoting 11 Thuraissigiam, 591 U.S. at 140). Hence, where a petitioner “do[es] not challenge the 12 admission process in any way or assert a right to remain in the United States,” the entry 13 fiction doctrine does not apply. Padilla, 704 F. Supp. 3d at 1172. 14 To state the matter bluntly, a bond hearing—which may result in release—does not 15 equate admissions. See Rincon v. Hyde, 810 F. Supp. 3d 101, 107 (D. Mass. 2025) (noting 16 that, if a petitioner were released following a bond hearing, they “will be subject to the 17 same removal proceedings as before, with no new right to remain”). “Thus, Petitioner does 18 not purport to invoke any ‘rights regarding admission.’” 10, 11 Id. at 110 (quoting

19 10 Cf. Counselman v. Hitchcock, 142 U.S. 547, 565 (1892) (“Legislation cannot detract from the privilege afforded by the Constitution. It would be quite another thing if the 20 Constitution had provided that no person shall be compelled in any criminal case to be a witness against himself, unless it should be provided by statute that criminating evidence 21 extracted from a witness against his will should not be used against him. But a mere act of Congress cannot amend the Constitution, even if it should engraft thereon such a 22 proviso.”), overruled on other grounds, Kastigar v. United States, 406 U.S. 441 (1972). 11 Respondents’ reliance upon the Supreme Court’s Thuraissigiam and Mezei 23 decisions to rebut this conclusion are unavailing. First, the Court in Thuraissigiam did not announce that all of a noncitizens’ rights were limited to those Congress provided by 24 statute. Rather, the Supreme Court’s holding was a limited to “those rights regarding admission that Congress has provided by statute.” Thuraissigiam, 591 U.S. at 140. 25 Furthermore, the noncitizen in question in Mezei was determined to “be prejudicial to the public interest for security reasons.” Mezei, 345 U.S. at 208, 216 (“An exclusion 26 proceeding grounded on danger to the national security, however, presents different considerations; neither the rationale nor the statutory authority [provide] for such release 27 exists.”). Respondents do not contend that Petitioner is a national security risk. Additionally, as noted in Ramirez, “the statutory scheme underpinning” Mezei is “no longer 28 in effect,” so it is of limited import in the context of § 1225(b)(1)(B)(ii) noncitizens. Ramirez, 2019 WL 11005487, at *5. Hence, Mezei is not directly applicable here. 1 Thuraissigiam, 591 U.S. at 140); D.V.D., 2026 WL 521557, at *30 (“It makes sense to 2 distinguish between rights regarding admission and other interests that might be protected 3 by the Due Process Clause.”). 4 Neither Padilla nor D.V.D. challenge “more than a century of Supreme Court case 5 law confirm[ing] that the proper application of an entry fiction, where otherwise 6 appropriate, is to preserve the Government’s authority over the determination of a 7 noncitizen’s admissibility.” D.V.D., 2026 WL 521557, at *30; Padilla, 704 F. Supp. 3d at 8 1171–72. Rather, the decisions, based on a textual analysis of Thuraissigiam and other 9 Supreme Court precedent, found that where a party “challenge[s] neither their orders of 10 removal nor any of the processes that produced those orders, their claims do not implicate, 11 nor even relate to, the issue of their admissibility.” D.V.D., 2026 WL 521557, at *31; 12 Padilla, 704 F. Supp. 3d at 1172 (finding that the class of plaintiffs were not challenging 13 the admissions process nor their right to stay in the country, meaning that the entry fiction 14 doctrine did not bar their due process claim). 15 Based on this persuasive statutory interpretation and “the Ninth Circuit’s 16 articulation of ‘grave doubts’ about the constitutionality of ‘any statute that allows for 17 arbitrary prolonged detention without any process,’” the Court finds that the entry clause 18 doctrine does not prohibit as-applied challenges to a petitioner’s length of detention. 19 Ramirez v. Sessions, No. 18-CV-05188-SVK, 2019 WL 11005487, at *6 (N.D. Cal. Jan. 20 30, 2019) (quoting Rodriguez v. Marin, 909 F.3d 252, 256–57 (9th Cir. 2018) (“Arbitrary 21 civil detention is not a feature of our American government. ‘Liberty is the norm, and 22 detention prior to trial or without trial is the carefully limited exception.’”) (cleaned up) 23 (quoting United States v. Salerno, 481 U.S. 739, 755 (1987))). 24 Most importantly, the Court finds that this holding comports with the Supreme 25 Court’s extensive catalog of immigration decisions. The Supreme Court has noted that in 26 American society, “liberty is the norm,” which necessitates that civil detention “is the 27 carefully limited exception.” Foucha v. Louisiana, 504 U.S. 71, 83 (1992) (quoting 28 Salerno, 481 U.S. at 755); Addington v. Texas, 441 U.S. 418, 425 (1979) (“This Court 1 repeatedly has recognized that civil commitment for any purpose constitutes a significant 2 deprivation of liberty that requires due process protection.”); cf. Lopez v. Decker, 978 F.3d 3 842, 850 (2d Cir. 2020) (“The Supreme Court has been unambiguous that executive 4 detention orders, which occur without the procedural protections required in courts of law, 5 call for the most searching review”) (citing Boumediene v. Bush, 553 U.S. 723, 781–83, 6 786 (2008)). 7 This contention is no less valid when considering that Petitioners are not citizens, 8 see Yick Wo v. Hopkins, 118 U.S. 356, 368–69 (1886), because “[t]he Fifth Amendment, 9 as well as the Fourteenth Amendment, protects every one of” the “millions of aliens within 10 the jurisdiction of the United States.” Mathews v. Diaz, 426 U.S. 67, 77 (1976); Reno v. 11 Flores, 507 U.S. 292, 306 (1993) (“It is well established that the Fifth Amendment entitles 12 aliens to due process of law in deportation proceedings.”) (citing The Japanese 13 Immigration Case, 189 U.S. 86, 100–01 (1903)); Wong Wing v. United States, 163 U.S. 14 228, 238 (1896) (“[I]t must be concluded that all persons within the territory of the United 15 States are entitled to the protection guarantied by th[e Fifth and Sixth Amendments], and 16 that even aliens shall not be . . . be deprived of life, liberty, or property without due process 17 of law.”). 18 “The constitutional sufficiency of [due process] procedures provided in any 19 situation, of course, varies with the circumstances.” Landon, 459 U.S. at 33–34. Here, it 20 appears that affording Petitioners constitutional due process protections not related to 21 admissions is congruent with binding precedent.12 In short, the Court finds that the 22 “preservation of petitioner[s’] right to due process does not leave an unprotected spot in 23 the Nation’s armor.” Kwong Hai Chew v. Colding, 344 U.S. 590, 602 (1953). Therefore, 24 the Court declines to follow Respondents’ characterization of the entry fiction doctrine. 25 // 26 12 Of course, this finding “does not lead to the further conclusion that all aliens are 27 entitled to enjoy all the advantages of citizenship.” Id. at 78. The Constitution clearly provides Congress a “broad power over naturalization and immigration,” including the 28 power to “make[] rules that would be unacceptable if applied to citizens.” Id. at 80–81. The instant findings do not subvert these notions. 1 2. Due Process Rights Regarding Petitioner’s Prolonged Detention. 2 Courts in this circuit and beyond have grappled over what test should be used to 3 determine whether procedural due process requires relief for a noncitizen held pursuant to 4 § 1225(b). See Doe v. Andrews, 1:25-cv-00333-JLT-HBK, at *15–17 (E.D. Cal. Mar. 23, 5 2026) (applying the 3-factor Lopez test); see also Galkin v. Scott, No. 2:26-cv-00530-TLF, 6 2026 U.S. Dist. LEXIS 46838, at *7 (W.D. Wash. Mar. 6, 2026) (applying the 6-part Banda 7 test) (citing Banda v. McAleenan, 385 F. Supp. 3d 1099, 1118 (W.D. Wash. 2019)); 8 Leonteva v. Noem, No. 4:26-cv-00043-SEB-KMB, 2026 U.S. Dist. LEXIS 52217, at *22 9 (S.D. Ind. Mar. 13, 2026) (applying the same 6-factor test, but calling it the Jamal A test) 10 (citing Jamal A. v. Whitaker, 358 F. Supp. 3d 853, 858–59 (D. Minn. 2019)); L.S. v. 11 Warden, Otay Mesa Det. Ctr., No. 25-cv-3598-LL-BJW, 2026 U.S. Dist. LEXIS 10299, at 12 *11–15 (S.D. Cal. Jan. 20, 2026) (applying the 3-part Mathews v. Eldridge test) (citing 13 Mathews, 424 U.S. at 335). 14 Out of the abovementioned tests, the Court finds the Banda test the most applicable 15 to the situation at hand. Under the Banda test, the Court considers the following factors: 16 (1) the total length of detention to date; (2) the likely duration of future 17 detention; (3) the conditions of detention; (4) delays in the removal proceedings caused by the detainee; (5) delays in the removal proceedings 18 caused by the government; and (6) the likelihood that the removal 19 proceedings will result in a final order of removal. 20 Banda, 385 F. Supp. 3d at 1118. 21 The Court finds the Banda test more suitable than the Mathews13 and Lopez14 tests.

22 13 Under the Mathews test, the Court considers: First, the private interest that will be affected by the official action; second, 23 the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural 24 safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or 25 substitute procedural requirement would entail. Mathews, 424 U.S. at 335. 26 14 Under the Lopez test, “the Court will look to the total length of detention to date, the likely duration of future detention, and the delays in the removal proceedings caused 27 by the petitioner and the government.” Lopez, 631 F. Supp. 3d at 879. The Court notes that this test “concern[s] due process challenge[s] to mandatory detention under § 1226(c), 28 [and] are, in essence, a truncated version of the factors enumerated in Banda[.]” Andrews, 1:25-cv-00333-JLT-HBK, at *14. Because the six-factor Banda test is more detailed than 1 Regarding the Mathews test, the Court concurs with other district courts that have found 2 that “while the Mathews factors may be well-suited to determining whether due process 3 requires a second bond hearing, they are not particularly dispositive of whether prolonged 4 mandatory detention has become unreasonable in a particular case.” Lopez, 631 F. Supp. 5 3d at 879. Put differently, the Mathews test is apt where the question is whether an 6 administrative procedure provided is “constitutionally sufficient,” but “[i]t does not resolve 7 the more fundamental issue of whether any procedure—such as a bond hearing—must be 8 provided.”15 Banda, 385 F. Supp. 3d at 1106–07. 9 i. Length of Detention. 10 The first Banda factor is the length of detention, “which is the most important 11 factor.” Banda, 385 F. Supp. 3d at 1118. “It is important to bear in mind the context: The 12 Lopez and is better suited for noncitizens held pursuant to § 1225(b), the Court accordingly 13 elects to apply it. 15 In any event, the outcome applying Mathews and Banda would be the same—i.e., 14 Petitioners would be entitled to individualized bond hearings. Applying the first Mathews element, undersigned finds that Petitioners have a strong private interest in their liberty 15 from prolonged civil detention. See Hernandez v. Sessions, 872 F.3d 976, 993 (9th Cir. 2017) (“As to the first factor, the private interest at issue here is ‘fundamental’: freedom 16 from imprisonment is at the ‘core of the liberty protected by the Due Process Clause.’”) (quoting Foucha, 504 U.S. at 80). 17 Turning to the second element, considering the prolonged nature of Petitioners’ detention, the Court finds a large risk of erroneous deprivation in the absence of 18 individualized bond hearings. See Rodriguez v. Robbins, 715 F.3d 1127, 1144 (9th Cir. 2013) (noting that the discretionary parole system envisioned under the Immigration and 19 Naturalization Act is insufficient “to overcome the constitutional concerns raised by prolonged mandatory detention”). Hence, an individualized bond hearing would greatly 20 mitigate the risk of a continued constitutional violation. Finally, regarding the third Mathews factor, the government interest in detaining 21 Petitioners without an individualized bond hearing is low. First, “[p]roviding petitioner with a bond hearing would not impede respondents’ interest in effecting removal or 22 protecting the public, as the purpose of the bond hearing is to determine whether petitioner is a danger or flight risk.” Jensen v. Garland, No. 5:21-CV-01195-CAS (AFM), 2023 WL 23 3246522, at *6 (C.D. Cal. May 3, 2023). Second, the fiscal burden of providing an individualized bond hearing is low. See Abduraimov v. Andrews, No. 1:25-CV-00843- 24 EPG-HC, 2025 WL 2912307, at *7 (E.D. Cal. Oct. 14, 2025) (“Courts generally have found that the cost of providing a bond hearing is relatively minimal, and there is nothing in the 25 record before this Court demonstrating that providing Petitioner with a bond hearing would be fiscally or administratively burdensome.”); cf. Hernandez v. Sessions, 872 F.3d 976, 26 996 (9th Cir. 2017) (noting that “[t]he costs to the public of immigration detention are ‘staggering’: $158 each day per detainee, amounting to a total daily cost of $6.5 million. 27 Supervised release programs cost much less by comparison: between 17 cents and 17 dollars each day per person”). Therefore, the third factor minimally favors the government. 28 Accordingly, applying the Mathews test to Petitioners’ 20-month detention, undersigned concludes that due process requires they be provided with individualized bond hearings. 1 detention that is being examined here is the detention of a human being who has never been 2 found to pose a danger to the community or to be likely to flee if released.” Id. (quoting 3 Jamal A., 358 F. Supp. 3d at 859). 4 Petitioners have been held in DHS custody for 20 months. Under the first Banda 5 factor, where a petitioner’s current detention exceeds a six-month threshold their 6 “detentions become less and less reasonable.” Haidari v. Immigr. & Customs Enf’t Field 7 Off. Dir., No. 2:26-cv-00039-TL, 2026 U.S. Dist. LEXIS 56882, at *8 (W.D. Wash. Mar. 8 18, 2026) (quoting L.B.O.M. v. Hermosillo, No. 2:25-cv-02695-GJL, 2026 U.S. Dist. 9 LEXIS 21291, at *8 (W.D. Wash. Feb. 2, 2026). 10 Petitioners have been detained for 20 months. This is well beyond the six-month 11 threshold, and well beyond the length of confinement other courts have found to be 12 prolonged. See, e.g., Liang Ding v. Noem, No. 1:26-cv-01217-DJC-SCR, 2026 U.S. Dist. 13 LEXIS 58212, at *3–4 (E.D. Cal. Mar. 19, 2026) (noting that an eight-month detention is 14 sufficiently prolonged to warrant granting relief); Amado v. U.S. Dep’t of Just., No. 25-cv- 15 2687-LL (DDL), 2025 U.S. Dist. LEXIS 217453, at *14 (S.D. Cal. Nov. 4, 2025) (“To 16 date, [p]etitioner has been in detention for approximately thirteen months. Courts have 17 found detention over seven months without a bond hearing weighs toward a finding that it 18 is unreasonable.”); Kadir v. Larose, No. 25cv1045-LL-MMP, 2025 U.S. Dist. LEXIS 19 203614, at *13 (S.D. Cal. Oct. 15, 2025) (noting that 13 months without a bond hearing is 20 prolonged); cf. Banda, 385 F. Supp. 3d at 1118 (“Petitioner has been in detention for 21 approximately 17 months, which is a very long time.”). In light of these decisions, and 22 based upon the facts of the instant action, the Court finds the length of Petitioners’ detention 23 strongly favors granting relief. 24 ii. Likely Duration of Future Detention. 25 The second factor requires the Court to “consider[] how long the detention is likely 26 to continue absent judicial intervention; in other words, the anticipated duration of all 27 removal proceedings—including administrative and judicial appeals.” Banda, 385 F. Supp. 28 3d at 1119 (citation omitted). “When the alien’s removal proceedings are unlikely to end 1 soon, this suggests that continued detention without a bond hearing is unreasonable.” 2 Akmal v. Warden of Cal. City Det., No. 1:25-CV-01921-DC-DMC-HC, 2026 WL 657606, 3 at *7 (E.D. Cal. Mar. 9, 2026) (quoting German Santos v. Warden Pike Cnty. Corr. 4 Facility, 965 F.3d 203, 211 (3d Cir. 2020)). 5 While the length of future detention is uncertain considering Petitioners’ appeal to 6 the BIA, the Court finds that the likely duration of future detention is sufficiently lengthy 7 for this factor to favor Petitioners. See Kadir, 2025 U.S. Dist. LEXIS 203614, at *8 8 (“Petitioner’s future detention can last several more months or even years during the 9 adjudication of Respondents’ appeal to the BIA.”); see also Liang Ding, 2026 U.S. Dist. 10 LEXIS 58212, at *4 (“[E]ither party may seek Ninth Circuit review of the [BIA’s] decision. 11 Therefore, [p]etitioner faces indefinitely prolonged detention while administrative and 12 potentially judicial appeals of his removal order are decided. Thus, this factor weighs in 13 [p]etitioner’s favor.”). 14 iii. Conditions of Detention. 15 The third factor requires the Court to consider the conditions of confinement. 16 Banda, 385 F. Supp. 3d at 1119. “The more that the conditions under which the [noncitizen] 17 is being held resemble penal confinement, the stronger his argument that he is entitled to a 18 bond hearing.” Id. (citation omitted). Neither party has addressed Petitioners’ conditions 19 of detention. Hence, the Court finds this factor neutral. 20 iv. Delays in Removal Proceedings. 21 Next, the Court shall analyze the “fourth and fifth [Banda] factors—both which 22 consider delays caused by the parties—together.” Maliwat v. Scott, No. 2:25-CV-00788- 23 TMC, 2025 WL 2256711, at *6 (W.D. Wash. Aug. 7, 2025). 24 The fourth factor requires the Court to consider the nature and extent of any delays 25 caused by Petitioners. “Courts should be sensitive to the possibility that dilatory tactics by 26 the removable noncitizen may serve not only to put off the final day of deportation, but 27 also to compel a determination that the noncitizen must be released because of the length 28 of his incarceration.” Banda, 385 F. Supp. 3d at 1119 (cleaned up). 1 In the instant action, Petitioners have appealed the IJ’s most recent denial of their 2 asylum claim and order of removal. While it is true that Petitioners have delayed their own 3 removal, the Court does not find that this was a dilatory tactic aimed at extending their 4 detention so they could then seek release. Regardless, based on a review of our sister 5 districts’ caselaw, the Court is persuaded that a petitioner “should not be effectively 6 punished through indefinite detention for exercising her right to appeal her removal order.” 7 Yuehui Chen v. Noem, No. 5:26-CV-00397-SSS-DTB, 2026 WL 425694, at *6 (C.D. Cal. 8 Feb. 13, 2026); Marroquin Ambriz v. Barr, 420 F. Supp. 3d 953, 964 (N.D. Cal. 2019) 9 (“But the government’s suggestion that Petitioner’s choice to appeal adverse rulings 10 weighs against any constitutional claim that he may make regarding his detention during 11 the course of the appeal is untenable, and the Court will not require that a petitioner who 12 pursues his available legal remedies must forego any challenge to the reasonableness of his 13 detention in the interim.”) (cleaned up); Barraza v. ICE Field Off. Dir., No. C23-1271- 14 BHS-MLP, 2023 WL 9600946, at *6 (W.D. Wash. Dec. 8, 2023), report and 15 recommendation adopted sub nom. Barraza v. U.S. Immigr. & Customs Enf’t Field Off. 16 Dir., No. C23-1271 BHS, 2024 WL 518945 (W.D. Wash. Feb. 9, 2024) (“Petitioner is 17 entitled to raise legitimate defenses to removal . . . and such challenges to his removal 18 cannot undermine his claim that detention has become unreasonable.”) (citing Liban M.J. 19 v. Sec. of Dep’t of Homeland Sec., 367 F. Supp. 3d 959, 965 (D. Minn. 2019)); Henriquez 20 v. Garland, No. 5:22-CV-00869-EJD, 2022 WL 2132919, at *5 (N.D. Cal. June 14, 2022) 21 (finding that delays caused by the petitioner to “develop affirmative relief in the face of his 22 removability . . . . does not deprive him of a constitutional right to due process,” especially 23 because “the proceedings have been significantly prolonged for reasons beyond his 24 control.”). Hence, the fourth factor minimally favors Respondents. 25 The fifth factor considers the delays in removal caused by the government. Banda, 26 385 F. Supp. 3d at 1120. “[I]f immigration officials have caused delay, it weighs in favor 27 of finding continued detention unreasonable . . . Continued detention will also appear more 28 unreasonable when the delay in proceedings was caused by the immigration court or other 1 non-ICE government officials.” Galkin, 2026 U.S. Dist. LEXIS 46838, at *11 (quoting 2 Sajous v. Decker, No. 18-CV-2447 (AJN), 2018 WL 2357266, at *10–11 (S.D.N.Y. May 3 23, 2018)). While Petitioners’ appeal has caused a delay in their removal, the Court notes 4 that “any ‘delay in this case is a product of the BIAs and Ninth Circuit’s ‘crowded dockets,’ 5 which courts typically attribute to the Government—not the Petitioner.” Galkin, 2026 U.S. 6 Dist. LEXIS 46838, at *11 (quoting Djelassi v. Ice Field Off. Dir., 434 F. Supp. 3d 917, 7 923 (W.D. Wash. 2020)). Hence, the fifth factor slightly favors Petitioners. 8 v. Likelihood of Removal. 9 The final Banda factor requires the Court to consider “the likelihood that the final 10 proceedings will culminate in a final order of removal.” Banda, 385 F. Supp. 3d at 1120 11 (citation omitted). “[W]here a noncitizen has asserted a good faith challenge to removal, 12 ‘the categorical nature of the detention will become increasingly unreasonable.’” Id. 13 (quoting Sajous v. Decker, No. 18-CV-2447 (AJN), 2018 WL 2357266, at *11 (S.D.N.Y. 14 May 23, 2018)). Based on the current record, “the Court lacks sufficient information to 15 comment on the potential merits of [P]etitioner[s’] pending appeal.” Galkin, 2026 U.S. 16 Dist. LEXIS 46838, at *12. Therefore, the sixth factor is neutral. 17 vi. Conclusion. 18 Considering three of the Banda factors favor Petitioners, one factor slightly favors 19 Respondents, and two factors are neutral, the Court concludes that Petitioners’ continued 20 detention under § 1225(b)(2) has become unreasonable. Therefore, Petitioners are entitled 21 to relief. 22 C. Remedy. 23 Where a noncitizen’s detention under § 1225(b)(2) has become unreasonable, the 24 proper remedy is an individualized bond hearing before a neutral IJ. See Galkin, 2026 U.S. 25 Dist. LEXIS 46838, at *12 (finding that “there is no authority” supporting relief in the form 26 of immediate release, but there is authority supporting relief in the form of a bond hearing) 27 (cleaned up); see also Lopez, 631 F. Supp. 3d at 882 (“The Court finds, consistent with 28 other post-Jennings cases, that the appropriate remedy is a bond hearing before an 1 immigration judge rather than immediate release.”); Kaur v. Lyons, 2:26-cv-00217-KML, 2 at *1 (D. Ariz. Apr. 9, 2026) (adopting the magistrate judge’s recommendations for a 3 1225(b)(2) petitioner and granting a bond hearing). 4 At the bond hearing, Respondents bear the burden of proving that Petitioners are a 5 danger or flight risk by clear and convincing evidence. Singh v. Holder, 638 F.3d 1196, 6 1203–05 (9th Cir. 2011). Additionally, “[i]n the event Petitioner[s are] ‘determined not to 7 be a danger to the community and not to be so great a flight risk as to require detention 8 without bond,’ the [IJ] should consider Petitioner[s’] financial circumstances and 9 alternative conditions of release.” also Liang Ding, 2026 U.S. Dist. LEXIS 58212, at *7 10 (quoting Hernandez v. Sessions, 872 F.3d 976, 1000 (9th Cir. 2017)). 11 Accordingly, 12 IT IS RECOMMENDED that Petitioners’ Petition for Writ of Habeas Corpus 13 (doc. 1) be GRANTED IN PART AND DENIED IN PART. 14 IT IS FURTHER RECOMMENDED that Petitioners’ request for immediate 15 release be DENIED. 16 IT IS FURTHER RECOMMENDED that Petitioners be provided individualized 17 bond hearings within SEVEN (7) DAYS if this Report and Recommendation is adopted. 18 These bond hearings shall comply with the procedural requirements set out in Singh v. 19 Holder, 638 F.3d 1196 (9th Cir. 2011). The government shall bear the burden of proving 20 that Petitioners are a danger or flight risk by clear and convincing evidence. Additionally, 21 the IJ should consider Petitioners’ financial situation and alternative conditions of release. 22 Hernandez v. Sessions, 872 F.3d 976 (9th Cir. 2017). In the alternative, the government 23 may release Petitioners under appropriate conditions of release. 24 IT IS FURTHER RECOMMENDED that Petitioners SHALL be provided with 25 adequate notice prior to the hearing. 26 IT IS FURTHER RECOMMENDED that the government shall file a status report 27 with the Court regarding the bond hearing and whether Petitioners were released within 28 FOURTEEN (14) DAYS if this Report and Recommendation is adopted. 1 This recommendation is not an order that is immediately appealable to the Ninth 2|| Circuit Court of Appeals. Any notice of appeal pursuant to Fed. R. App. P. 4(a)(1) should || not be filed until entry of the District Court’s judgment. The Parties shall have 14 days from the date of service of a copy of this recommendation within which to file specific 5 || written objections with the Court. See 28 U.S.C. § 636(b)(1); see also Fed. R. Civ. P. 6, || 72. Thereafter, the Parties have 14 days within which to file a response to the objections. 7 Failure to file timely objections to the Magistrate Judge’s Report and 8 || Recommendation may result in the acceptance of the Report and Recommendation by the 9|| District Court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 10}} 1121 (9th Cir. 2003). Failure to file timely objections to any factual determinations of the 11 || Magistrate Judge may be considered a waiver of a party’s right to appellate review of the findings of fact in an order or judgment entered pursuant to the Magistrate Judge’s 13 |} recommendation. See Fed. R. Civ. P. 72. 14 Dated this 12th day of May, 2026.

16 Honorable John Z. Boyle United States Magistrate Judge 17 18 19 20 21 22 23 24 25 26 27 28

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