Fatemeh Soltanbakhsh v. Pamela Bondi, et al.

• Court: District Court, D. Arizona
• Decided: May 6, 2026
• Docket: 2:26-cv-01572
• Status: Unknown

Opinion

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

9 Fatemeh Soltanbakhsh, No. CV-26-01572-PHX-SHR (JZB)

10 Petitioner, REPORT AND RECOMMENDATION

11 v.

12 Pamela Bondi, et al.,1

13 Respondents. 14 15 TO THE HONORABLE SCOTT H. RASH, UNITED STATES DISTRICT JUDGE: 16 Pending before the Court is Petitioner’s “Petition for a Writ of Habeas Corpus Under 17 28 U.S.C. § 2241.”2 (Doc. 1.) 18 I. SUMMARY OF CONCLUSIONS. 19 Petitioner is subject to mandatory detention pursuant to 8 U.S.C. § 1225(b)(2) by 20 the Department of Homeland Security (“DHS”) Immigration and Customs Enforcement 21 (“ICE”) and has been detained since January 24, 2025. (Id. at 2.) On October 3, 2025, an 22 Immigration Judge (“IJ”) denied Petitioner’s asylum application and ordered that Petitioner 23 be removed. (Id. at 51–53); (Doc. 9 at 1.) Petitioner appealed the decision to the Board of 24 Immigration Appeals (“BIA”). (Doc. 1 at 4.) Her appeal remains pending. 25 Considering Petitioner’s current 15-month detention and the liberty interest at stake, 26 1 Pursuant to Federal Rule of Civil Procedure 25(d), Acting Attorney General Todd 27 Blanche is substituted for Pamela Bondi, and Secretary of Homeland Security Markwayne Mullin is substituted for Kristi Noem. 28 2 This action was referred to this Court “for further proceedings and a report and recommendation”. (Doc. 4 at 4.) 1 the Court concludes that Petitioner’s continued detention offends due process as applied in 2 the 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 Petitioner 4 be granted an individualized bond hearing. Furthermore, the Court recommends that, at the 5 bond hearing, the government bear the burden of proving Petitioner is a danger or flight 6 risk by clear and convincing evidence. 7 II. BACKGROUND. 8 Petitioner is a citizen of Iran. (Id. at 4.) On January 24, 2025, Petitioner presented 9 herself at a port of entry where DHS classified her as an “arriving alien.” (Doc. 9 at 1.) 10 Upon arrival, Petitioner was served with an I-862 Notice to Appear that alleged that 11 Petitioner did not “possess or present a valid immigrant visa, reentry permit, border 12 crossing identification card, or other valid entry document[.]” (Doc. 1 at 31.) Petitioner was 13 not admitted or paroled after inspection. (Id.) Petitioner applied for asylum at this time. (Id. 14 at 4.) 15 On October 3, 2025, an IJ denied Petitioner’s asylum claim and ordered her 16 removed. (Id. at 51–53); (Doc. 9 at 1.) Petitioner timely appealed the decision to the BIA. 17 (Doc. 1 at 4.) That appeal remains pending. (Id.); (doc. 9 at 1.) 18 On March 6, 2026, Petitioner filed the instant Petition. (Doc. 1.) In her Petition, 19 Petitioner asserted two claims for relief: (1) that her prolonged detention violates the Due 20 Process Clause of the Fifth Amend; and (2) that her prolonged detention violates the Eighth 21 Amendment. (Id. at 24–26.) On March 10, 2026, the District Court dismissed Petitioner’s 22 Eighth Amendment claim and required Respondents to respond to her Fifth Amendment 23 due process claim. (Doc. 4.) On March 30, 2026, Respondents filed their Response.3 (Doc.

24 3 In their Response, Respondents request the Court “dismiss all Respondents other than Warden Luis Rosa Jr.,” asserting that a “habeas petition may never have multiple 25 respondents[.]” (Doc. 9 at 1–2.) “[I]n habeas challenges to present physical confinement— ‘core challenges’—the default rule is that the proper respondent is the warden of the facility 26 where the prisoner is being held, not the Attorney General or some other remote supervisory official.” Rumsfeld v. Padilla, 542 U.S. 426, 435 (2004). The Ninth Circuit 27 Court of Appeals has “affirm[ed] the application of the immediate custodian and district of confinement rules to core habeas petitions filed pursuant to 28 U.S.C. § 2241, including 28 those filed by immigrant detainees.” Doe v. Garland, 109 F.4th 1188, 1199 (9th Cir. 2024). While both Doe and Padilla set forth the rule that a habeas petitioner must name the warden 1 9.) On April 20, 2026, Petitioner filed an untimely Reply.4 (Doc. 11.) 2 III. 28 U.S.C. § 2241 WRIT OF HABEAS CORPUS. 3 The district court is empowered to issue a writ of habeas corpus where an individual 4 is held “in custody in violation of the Constitution or laws or treaties of the United States[.]” 5 28 U.S.C. § 2241(c)(3). The language of § 2241 and “the common-law history of the writ” 6 makes clear “that the essence of habeas corpus is an attack by a person in custody upon the 7 legality of that custody, and that the traditional function of the writ is to secure release from 8 illegal custody.” Preiser v. Rodriguez, 411 U.S. 475 484 (1973) (noting that the writ of 9 habeas corpus “was early recognized by [the Supreme] Court as a ‘great constitutional 10 privilege’”) (quoting Ex parte Bollman, 8 U.S. (4 Cranch) 75, 95 (1807)); cf. In re Kaine, 11 55 U.S. (14 How.) 103 (1852) (applying the writ of habeas corpus in the immigration 12 context). The Supreme Court has made clear that § 2241 applies to noncitizens5 challenging 13 their immigration detention. See Zadvydas v. Davis, 533 U.S. 678, 687 (2001). 14 Because Petitioner only challenges her prolonged civil detention, the Court has 15 jurisdiction to address the instant Petition. See Lopez-Marroquin v. Barr, 955 F.3d 759, 16 759 (9th Cir. 2020) (“[D]istrict courts retain jurisdiction under 28 U.S.C. § 2241 to consider 17 habeas challenges to immigration detention that are sufficiently independent of the merits 18 of the removal order[.]”). 19 // 20 of the facility where they are detained, these decisions did not preclude naming more than 21 one Respondent. Hence, the Court does not find dismissal proper in the instant action. 4 The Court has read, but does not summarize, the reply. 22 5 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 IV. DISCUSSION. 2 A. Statutory Basis for Petitioner’s Detention. 3 “A noncitizen’s place within this statutory scheme can affect whether his detention 4 is mandatory or discretionary, as well as the kind of review process available to him if he 5 wishes to contest the necessity of his detention.” Avilez v. Garland, 69 F.4th 525, 529 (9th 6 Cir. 2023) (cleaned up). Both parties contend that Petitioner is held pursuant to 8 U.S.C. § 7 1225(b)(2). See (Doc. 1 at 4–5); see also (doc. 9 at 2.) Considering the parties’ agreement, 8 and based upon the undersigned’s independent review of the record, the Court finds that 9 Petitioner is currently detained pursuant to 8 U.S.C. § 1225(b)(2). 10 B. Due Process. 11 The Court turns to Petitioner’s due process claim. The Court’s due process analysis 12 is separated into two steps: “[F]irst[, the Court] ask[s] whether there exists a liberty or 13 property interest of which a person has been deprived, and if so[, the Court] ask[s] whether 14 the procedures followed by the [government] were constitutionally sufficient.” Swarthout 15 v. Cooke, 562 U.S. 216, 219 (2011). 16 1. Liberty Interest. 17 “A liberty interest may arise from the Constitution itself6 . . . or it may arise from 18 an expectation or interest created by state laws or policies.” Wilkinson v. Austin, 545 U.S. 19 209, 221 (2005) (citations omitted). If a liberty interest is found, the Court then determines 20 whether the administrative procedures are sufficient considering the “particular situation.”7 21 Mathews v. Eldridge, 424 U.S. 319, 334 (1976) (quoting Morrissey v. Brewer, 408 U.S. 22 471, 481 (1972)). 23 In the instant action, the parties disagree whether Petitioner possesses a cognizable 24 liberty interest. Petitioner argues that she has a liberty interest in being free from prolonged

25 6 “Freedom from imprisonment—from government custody, detention, or other forms of physical restraint—lies at the heart of the liberty that Clause protects.” Zadvydas, 26 533 U.S. at 690. 7 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 civil commitment. (Doc. 1 at 8–9.) Respondents contend that Petitioner does not have a 2 liberty interest in remaining outside of immigration custody because she does not have a 3 cognizable liberty interest in humanitarian parole. (Doc. 9 at 6) (citing Wong v. Immigr. 4 and Naturalization Serv., 373 F.3d 952 (9th Cir. 2004). Additionally, Respondents contend 5 that the entry fiction doctrine limits Petitioner’s due process liberty interests to those 6 procedures created by statute. (Doc. 9 at 2–6.) The Court disagrees with Respondents’ 7 reliance upon Wong and the entry fiction doctrine in the instant action. 8 Beginning with Wong, the Court notes that the case is inapposite to the situation at 9 hand. In Wong, the Ninth Circuit Court of Appeals addressed whether a noncitizen has a 10 liberty interest in temporary parole. See Wong, 373 F.3d at 967. The court found that “[t]he 11 INA does not create any liberty interest in temporary parole that is protected by the Fifth 12 Amendment.” Id. at 968 (emphasis added). “Rather, the statute makes clear that whether 13 and for how long temporary parole is granted are matters entirely within the discretion of 14 the Attorney General.” Id. 15 Pursuant to Wong, if Petitioner were asserting a liberty interest in temporary parole, 16 her claim would be non-cognizable. See id. (emphasis added). However, Petitioner is not 17 asserting a liberty interest in temporary parole. Rather, Petitioner asserts a liberty interest 18 in being free from prolonged civil confinement. (Doc. 1 at 9.) Therefore, Wong is 19 inapplicable to the instant matter. 20 Next, the Court does not find that the entry fiction doctrine forecloses Petitioner’s 21 due process claim as to her present detention. The entry fiction doctrine asserted by 22 Respondents is based upon the “distinction between those aliens who have come to our 23 shores seeking admission, such as petitioner, and those who are within the United States 24 after an entry, irrespective of its legality.” Leng May Ma v. Barber, 357 U.S. 185, 187 25 (1958). The Supreme Court has noted that the latter category of noncitizens have 26 “additional rights and privileges not extended to those in the former category who are 27 merely ‘on the threshold of initial entry.’” Id. (quoting Shaughnessy v. U.S. ex rel. Mezei, 28 345 U.S. 206, 212 (1953)); Dep’t of Homeland Sec. v. Thuraissigiam, 591 U.S. 103, 139 1 (2020) (“Whatever the procedure authorized by Congress is, it is due process as far as an 2 alien denied entry is concerned”) (quoting U.S. ex rel. Knauff v. Shaughnessy, 338 U.S. 3 537, 544 (1950)). Those noncitizens who are on the “threshold of initial entry” are not 4 considered “to have ‘effected an entry[.]’” Thuraissigiam, 591 U.S. at 140 (quoting 5 Zadvydas, 533 U.S. at 693). Put differently, “[w]hen an alien arrives at a port of entry— 6 for example, an international airport—the alien is on U.S. soil, but the alien is not 7 considered to have entered the country[.]” Thuraissigiam, 591 U.S. at 139. Therefore, 8 while a citizen may be physically present within the country, they were “still in theory of 9 law at the boundary line and had gained no foothold in the United States[.]” Zadvydas, 533 10 U.S. at 693 (quoting Kaplan v. Tod, 267 U.S. 228, 257–58 (1925)). 11 This distinction is predicated upon the following “fundamental proposition: ‘The 12 power to admit or exclude aliens is a sovereign prerogative.’” Thuraissigiam, 591 U.S. at 13 139 (cleaned up) (quoting Landon v. Plasencia, 459 U.S. 21, 32 (1982)). “The Constitution 14 gives ‘the political department of the government’ plenary authority to decide which aliens 15 to admit, . . . and a concomitant of that power is the power to set the procedures to be 16 followed in determining whether an alien should be admitted.” Thuraissigiam, 591 U.S. at 17 139 (quoting Nishimura Ekiu v. United States, 142 U.S. 651, 659 (1892)). 18 Respondents, based upon the foregoing, extrapolate that Petitioner, due to the entry 19 fiction doctrine, “is entitled to [only] those procedures granted by statute because Petitioner 20 is not entitled to procedural due process protections.” (Doc. 9 at 5.) In other words, 21 Respondents contend that Petitioner, who has not legally effected an entry but is still within 22 the geographical bounds of the U.S., does not have a cognizable Fifth Amendment liberty 23 interest because: (1) she only has a due process interest in those rights regarding admission 24 that Congress has provided by statute; and (2) Congress only provided for temporary parole 25 at the complete discretion of the attorney general. See (id. at 5–6.) 26 The Court disagrees with Respondents approach. Based on a review of current 27 district court interpretation and a plain reading of Supreme Court precedent, it appears that, 28 outside of the context of admissions, a noncitizen has a liberty interest to be free from civil 1 confinement once their detention has become prolonged.8 2 Undersigned is persuaded by the interpretation of numerous courts, both in this 3 District and its sister districts, that have held the entry fiction applies to the procedural 4 rights of noncitizens regarding admission, not every procedure occurring in the 5 immigration context—i.e., the entry fiction doctrine is inapplicable to challenges of a 6 petitioner’s length of detention. See D.V.D. v. U.S. Dep’t of Homeland Sec., No. CV 25- 7 10676-BEM, 2026 WL 521557, at *28–31 (D. Mass. Feb. 25, 2026)9; see also Padilla v. 8 U.S. Immigr. & Customs Enf’t, 704 F. Supp. 3d 1163, 1170–72 (W.D. Wash. 2023). These 9 decisions, their progeny, and similar such decisions in numerous district courts interpreting 10 the entry fiction doctrine, are based on a finding that arriving noncitizens, such as 11 Petitioner, have “only those rights regarding admission that Congress has provided by 12 statute.”10 Thuraissigiam, 591 U.S. at 140 (emphasis added). 13 For example, the district court in D.V.D v. U.S. Dep’t of Homeland Sec. recently 14 illustrated why the entry fiction doctrine does not foreclose Petitioner’s as-applied 15 challenge to the length of her detention. In D.V.D., the court noted that the, although the 16 entry fiction doctrine “provide[d] an exception to the otherwise geographic scope of the 17 Due Process Clause,” the doctrine only impacted those due process rights “regarding

18 8 Undersigned acknowledges there is an internal split amongst the learned jurists within the District of Arizona on the issue of due process for § 1225(b) petitioners. 19 Compare Guevara Serrano v. Bondi, No. CV-26-00110-PHX-DJH, at *7 (D. Ariz. Mar. 9, 2026) (granting immediate release) with Escalona Plaza v. Rosa, No. CV-26-00195-PHX- 20 MTL (MTM) (D. Ariz. Mar. 16, 2026) (denying petition for writ of habeas corpus). 9 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 10 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 admission.” D.V.D., 2026 WL 521557, at *30 (cleaned up) (quoting Thuraissigiam, 591 2 U.S. at 140). The court proceeded to “distinguish rights regarding admission,” which 3 relates to the government’s “sovereign authority to admit noncitizens only in cases as it 4 may see fit,” with other interests that might be implicated by the Due Process Clause. 5 D.V.D., 2026 WL 521557, at *30 (cleaned up). Because the D.V.D. petitioners neither 6 challenged their orders of removal nor the process resulting in those orders, the 7 government’s sovereign prerogative was not implicated. Id. at *30–31 (citing Johnson v. 8 Guzman Chavez, 594 U.S. 523, 536 (2021)). Hence, the entry fiction doctrine did not bar 9 the petitioners’ non-admissions due process challenges. Id. at *31. 10 In a truncated fashion, the court in Padilla refuted the government’s entry fiction 11 argument. There, the court rejected the government’s claim that the entry fiction doctrine 12 broadly applied to any due process challenge, noting that such an assertion “is untethered 13 to the claim in Thuraissigiam and the [Supreme] Court’s reasoning.” Padilla, 704 F. Supp. 14 3d at 1171. Rather, the entry fiction doctrine is constrained “only [to] those rights regarding 15 admission that Congress has provided by statute.” Id. at 1172 (emphasis omitted) (quoting 16 Thuraissigiam, 591 U.S. at 140). Hence, where a petitioner “do[es] not challenge the 17 admission process in any way or assert a right to remain in the United States,” the entry 18 fiction doctrine does not apply. Padilla, 704 F. Supp. 3d at 1172. 19 To state the matter bluntly, a bond hearing—which may result in release—does not 20 equate admissions. See Rincon v. Hyde, 810 F. Supp. 3d 101, 107 (D. Mass. 2025) (noting 21 that, if a petitioner were released following a bond hearing, they “will be subject to the 22 same removal proceedings as before, with no new right to remain”). “Thus, Petitioner does 23 not purport to invoke any ‘rights regarding admission.’” 11, 12 Id. at 110 (quoting

24 11 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 25 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 26 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 27 proviso.”), overruled on other grounds, Kastigar v. United States, 406 U.S. 441 (1972). 12 Respondents’ reliance upon the Supreme Court’s Thuraissigiam and Mezei 28 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 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 statute. Rather, the Supreme Court’s holding was a limited to “those rights regarding 24 admission that Congress has provided by statute.” Thuraissigiam, 591 U.S. at 140. Furthermore, the noncitizen in question in Mezei was determined to “be prejudicial to the 25 public interest for security reasons.” Mezei, 345 U.S. at 208, 216 (“An exclusion proceeding grounded on danger to the national security, however, presents different 26 considerations; neither the rationale nor the statutory authority [provide] for such release exists.”). Respondents do not contend that Petitioner is a national security risk. 27 Additionally, as noted in Ramirez, “the statutory scheme underpinning” Mezei is “no longer in effect,” so it is of limited import in the context of § 1225(b)(1)(B)(ii) noncitizens. 28 Ramirez, 2019 WL 11005487, at *5. Hence, Mezei is not directly applicable to the situation at hand. 1 (quoting United States v. Salerno, 481 U.S. 739, 755 (1987))). 2 Most importantly, the Court finds that this holding comports with the Supreme 3 Court’s extensive catalog of immigration decisions. The Supreme Court has noted that in 4 American society, “liberty is the norm,” which necessitates that civil detention “is the 5 carefully limited exception.” Foucha v. Louisiana, 504 U.S. 71, 83 (1992) (quoting 6 Salerno, 481 U.S. at 755); Addington v. Texas, 441 U.S. 418, 425 (1979) (“This Court 7 repeatedly has recognized that civil commitment for any purpose constitutes a significant 8 deprivation of liberty that requires due process protection.”); cf. Lopez v. Decker, 978 F.3d 9 842, 850 (2d Cir. 2020) (“The Supreme Court has been unambiguous that executive 10 detention orders, which occur without the procedural protections required in courts of law, 11 call for the most searching review”) (citing Boumediene v. Bush, 553 U.S. 723, 781–83, 12 786 (2008)). 13 This contention is no less valid when considering that Petitioner is not a citizen, see 14 Yick Wo v. Hopkins, 118 U.S. 356, 368–69 (1886), because “[t]he Fifth Amendment, as 15 well as the Fourteenth Amendment, protects every one of” the “millions of aliens within 16 the jurisdiction of the United States.” Mathews v. Diaz, 426 U.S. 67, 77 (1976); Reno v. 17 Flores, 507 U.S. 292, 306 (1993) (“It is well established that the Fifth Amendment entitles 18 aliens to due process of law in deportation proceedings.”) (citing The Japanese 19 Immigration Case, 189 U.S. 86, 100–01 (1903)); Wong Wing v. United States, 163 U.S. 20 228, 238 (1896) (“[I]t must be concluded that all persons within the territory of the United 21 States are entitled to the protection guarantied by th[e Fifth and Sixth Amendments], and 22 that even aliens shall not be . . . be deprived of life, liberty, or property without due process 23 of law.”). 24 “The constitutional sufficiency of [due process] procedures provided in any 25 situation, of course, varies with the circumstances.” Landon, 459 U.S. at 33–34. Here, it 26 appears that affording Petitioner constitutional due process protections not related to 27 admissions is congruent with binding precedent.13 In short, the Court finds that the

28 13 Of course, this finding “does not lead to the further conclusion that all aliens are entitled to enjoy all the advantages of citizenship.” Id. at 78. The Constitution clearly 1 “preservation of petitioner’s right to due process does not leave an unprotected spot in the 2 Nation’s armor.” Kwong Hai Chew v. Colding, 344 U.S. 590, 602 (1953). Therefore, the 3 Court declines to follow Respondents’ characterization of the entry fiction doctrine. 4 2. Due Process Rights Regarding Petitioner’s Prolonged Detention. 5 In arguing that her detention has become prolonged, Petitioner relies upon the 6 Banda test established in Banda v. McAleenan, 385 F. Supp. 3d 1099 (W.D. Wash. 2019). 7 (Doc. 1 at 14–19.) Respondents do not address the Banda test in their Response. See (doc. 8 9.) 9 Courts in this circuit and beyond have grappled over what test should be used to 10 determine whether procedural due process requires relief for a noncitizen held pursuant to 11 § 1225(b). See Doe v. Andrews, 1:25-cv-00333-JLT-HBK, at *15–17 (E.D. Cal. Mar. 23, 12 2026) (applying the 3-factor Lopez test); see also Galkin v. Scott, No. 2:26-cv-00530-TLF, 13 2026 U.S. Dist. LEXIS 46838, at *7 (W.D. Wash. Mar. 6, 2026) (applying the 6-part Banda 14 test) (citing Banda, 385 F. Supp. at 1118); Leonteva v. Noem, No. 4:26-cv-00043-SEB- 15 KMB, 2026 U.S. Dist. LEXIS 52217, at *22 (S.D. Ind. Mar. 13, 2026) (applying the same 16 6-factor test, but calling it the Jamal A test) (citing Jamal A. v. Whitaker, 358 F. Supp. 3d 17 853, 858–59 (D. Minn. 2019)); L.S. v. Warden, Otay Mesa Det. Ctr., No. 25-cv-3598-LL- 18 BJW, 2026 U.S. Dist. LEXIS 10299, at *11–15 (S.D. Cal. Jan. 20, 2026) (applying the 3- 19 part Mathews v. Eldridge test) (citing Mathews, 424 U.S. at 335). 20 Out of the abovementioned tests, the Court finds the Banda test the most applicable 21 to the situation at hand. Under the Banda test, the Court considers the following factors: 22 (1) the total length of detention to date; (2) the likely duration of future 23 detention; (3) the conditions of detention; (4) delays in the removal proceedings caused by the detainee; (5) delays in the removal proceedings 24 caused by the government; and (6) the likelihood that the removal 25 proceedings will result in a final order of removal. Banda, 385 F. Supp. 3d at 1118. 26 27 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 The Court finds the Banda test more suitable than the Mathews14 and Lopez15 tests. 2 Regarding the Mathews test, the Court concurs with other district courts that have found 3 that “while the Mathews factors may be well-suited to determining whether due process 4 requires a second bond hearing, they are not particularly dispositive of whether prolonged 5 mandatory detention has become unreasonable in a particular case.” Lopez, 631 F. Supp. 6 3d at 879. Put differently, the Mathews test is apt where the question is whether an 7 administrative procedure provided is “constitutionally sufficient,” but “[i]t does not resolve 8 the more fundamental issue of whether any procedure—such as a bond hearing—must be 9 provided.”16 Banda, 385 F. Supp. 3d at 1106–07.

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

2% Honorable John Z. Boyle United States Magistrate Judge 27 28

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