1 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE DISTRICT OF ARIZONA
9 Mikhail Savin,
10 Petitioner, No. CV 26-01120 PHX DWL (CDB)
v. 11 REPORT AND David Rivas, Warden, San Luis Regional RECOMMENDATION 12 Detention Center, et al., A 249 138 621
13 Respondents.
14 15 TO THE HONORABLE DOMINIC W. LANZA: 16 Petitioner Mikhail Savin, who proceeds pro se, seeks release from detention 17 pursuant to 28 U.S.C. § 2241. 18 I. Background 19 Petitioner is a native and citizen of Russia. (ECF No. 1 at 5; ECF No. 1-1 at 2). 20 Petitioner and his then-pregnant wife applied for admission into the United States on 21 October 20, 2024, from Mexico, using the CBP One application. (ECF No. 1-1 at 33). At 22 the border Petitioner was detained at the Imperial Regional Detention facility and his wife 23 was released from custody (Petitioner’s wife, also a citizen of Russia, was presumably 24 paroled into the United States). (ECF No. 1 at 19). Accordingly, Petitioner has been 25 detained for 17 months. Petitioner was served with a Notice to Appear (“NTA”). (ECF 26 No. 1 at 5). Petitioner appeared before an Immigration Judge (“IJ”) in California on or 27 about November 7, 2024. (ECF No. 1-1 at 33). At a master calendar hearing on January 31, 28 2025, at which Petitioner was without counsel, Petitioner admitted charges 1 through 4 of 1 the NTA and conceded the charge of inadmissibility under Immigration and Nationality 2 Act (“INA”) § 212(a)(7)(A)(i)(I), codified at 8 U.S.C. § 1182(a)(7)(A)(i)(I).1 (ECF No. 1- 3 1 at 2). Based on Petitioner’s admissions, the IJ sustained the charge of removability and 4 designated Russia as the country of removal, “if removal became necessary.” (ECF No. 1- 5 1 at 2). 6 Petitioner filed an application for asylum, Form I-589, and also sought withholding 7 of removal and protection pursuant to the Convention Against Torture (“CAT”). (ECF 8 No. 1-1 at 3, 33, 37-38).2 At a hearing before an IJ conducted April 22, 2025, Petitioner 9 appeared with his counsel. (Id.). An issue regarding translation of some documents caused 10 the hearing to be continued, over Petitioner’s counsel’s objection, to May 27, 2025. (ECF 11 No. 1-1 at 34). 12 At the hearing on May 27, 2025, the IJ refused to consider an updated Form I-589 13 and exhibits submitted by Petitioner, including a “notice to the Consular Officer concerning 14
15 1 The actual Notice to Appear (“NTA”) is not in the record. Section 212(a)(7)(A)(i)(I) of the Immigration and Nationality Act (“INA”), codified at 8 U.S.C. § 1182, charges as inadmissible 16 an immigrant who, at the time of “seeking admission,” is not in possession of a valid unexpired immigrant visa, reentry permit, border crossing card, or other valid entry document required by 17 the INA. Because Petitioner was deemed inadmissible at the border when the NTA was issued, 18 and he has applied for asylum, his detention is pursuant to 8 U.S.C. § 1225. 19 2 An award of asylum has a discretionary element, whereas withholding of removal and CAT protection are mandatory if the elements of the test are met. The requirements for withholding 20 of removal and CAT protection are higher than for asylum, but these forms of relief provide more limited benefits. Withholding of removal prohibits removal to a country where the applicant’s life 21 or freedom would be threatened based on status as a member of a protected group. Protection from 22 removal based on the CAT requires the noncitizen to show they are in danger of torture if removed to the designated country. To be entitled to protection under the CAT, the noncitizen must show 23 the feared harm meets the definition of “torture,” i.e., an intentional unlawful infliction of severe physical or mental suffering or pain, with the consent of a public official, for purposes such as 24 punishment, obtaining a confession, intimidation, or discrimination. The advantage of CAT 25 protection is that with the exception of commission of a serious crime, none of the bars to asylum prevent a noncitizen from being granted this form of relief. Both withholding of removal and CAT 26 protection do not prevent removal to a third country; however, the Ninth Circuit Court of Appeals has held that removal to a third country requires a noncitizen be provided with procedural due 27 process prior to removal to that specific third country. See Ibarra-Perez v. United States, 154 F.4th 28 989, 995 (9th Cir. 2025). See also Refugee & Immigrant Ctr. for Educ. & Legal Servs. v. Noem, 793 F. Supp. 3d 19, 45-46 (D.D.C. 2025). 1 [Petitioner’s] detention.” (ECF No. 1-1 at 34). Because “testimony was not completed,” 2 Petitioner’s hearing was continued to June 25, 2025. (ECF No. 1-1 at 35). At the conclusion 3 of the June hearing, the “IJ read his decision” denying asylum and withholding of removal 4 “in court.” (Id.). 5 In the order denying asylum and withholding of removal and denial of protection 6 under the CAT, the IJ noted Petitioner was charged with being inadmissible pursuant to 7 INA § 212(a)(7)(A)(i)(I), found Petitioner credible, and “found that [Petitioner] testified 8 consistently with the record evidence.” (ECF No. 1-1 at 35). The IJ denied Petitioner’s 9 applications for asylum, withholding of removal, and relief pursuant to the CAT. (ECF 10 No. 1-1 at 2-15). The IJ ordered Petitioner be removed to Russia, “pursuant to the charge 11 contained in the Notice to Appear.” (ECF No. 1-1 at 14). 12 On July 23, 2025, Petitioner, through counsel, appealed the denial of asylum and 13 relief from removal to the Board of Immigration Appeals (“BIA”), filing his brief on 14 November 20, 2025. (ECF No. 1-1 at 17-53). In his appeal to the BIA Petitioner asserted:
15 The Immigration Judge (“IJ”) made several errors of law and fact that led him to conclude that the Respondent in this matter (“Mr. Savin”) does 16 not have a well-founded fear of future persecution in his native Russia 17 despite the fact that he is currently being prosecuted under a politically motivated law, Art. 207.3 of the Russian criminal code, which is punishable 18 by a decade in prison. This is also despite the fact that Mr. Savin was 19 repeatedly threatened with prosecution and death by government official for his political beliefs and despite the fact that he suffered a severe beating 20 resulting in concussion as a result of these beliefs. The IJ found Mr. Savin 21 credible, and also admitted his supporting documentation including the actual summons demonstrating that a criminal case was initiated against Mr. 22 Savin under Art. 207.3 and three exhibits of country conditions reports 23 detailing the pervasive climate of political repression and persecution in Russia. 24 The immigration judge reached this erroneous conclusion by: 25 1) applying an impossibly high, “knowledge” standard rather than the required “reasonable possibility” standard for the well-founded fear analysis; 26 2) making an incorrect legal assumption that Mr. Savin cannot establish 27 political persecution for his political speech by virtue of his government position in Russia; 3) making a finding which is not supported by substantial 28 evidence that Mr. Savin failed to establish the requisite nexus between his 1 political opinion and his feared persecution and that he feared persecution solely on account of criminal prosecution and evading military service; 4) By 2 failing to consider any country conditions information in his analysis. Mr. 3 Savin has met his burden to prove a well-founded fear of future persecution on account of his political opinion and asylum should be granted by the BIA 4 for this reason. 5 Additionally, Mr. Savin established past persecution. The Immigration Judge’s decision to the contrary was based on: 1) An erroneous 6 application of “cumulative” harm analysis for past persecution in violation 7 of law; and 2) failure to consider substantial fats of both cumulative harm persecution and single-incident persecution. Similarly, the immigration 8 Judge’s denial of Withholding of Removal and CAT relief are not based on 9 substantial evidence and Mr. Savin has met his burden to prove eligibility for Withholding and CAT as well as asylum. It also appears that the Immigration 10 Judge violated Mr. Savin’s due process rights by failing to fairly consider the 11 evidence in Mr. Savin’s case, potentially because he indiscriminately applied the analysis Matter of E-Z despite the factual differences between E-Z and 12 Mr. Savin due to his “ risk adverse” outlook. 13 Since Mr. Savin was ordered removed, government officials from the Russian Federation have twice come to Mr. Savin’s mother at his registered 14 address, have stated that they know Mr. Savin has applied for asylum and lost his case and have asked when he will be coming back to Russia. These 15 visits happened as recently as August and indicate that Mr. Savin is still being 16 aggressively pursued by the Russian government for persecution. Proof of these interactions is attached to the instant brief as an addendum. It is not an 17 exaggeration to say that reversal of the IJ decision by the Board is necessary 18 t o save Mr. Savin’s life. 19 (ECF No. 1-1 at 24). Per the Executive Office of Immigration Review, the Department of 20 Homeland Security did not file a brief in Petitioner’s appeal. See 21 https://acis.eoir.justice.gov/en/caseInformation, last visited Apr. 10, 2026. 22 In November of 2025 Petitioner was transferred to the San Luis Detention Center in 23 Arizona. (ECF No. 1 at 19). There is nothing in the record indicating Petitioner has ever 24 received a hearing to determine whether he would be a flight risk and/or a danger to the 25 community if released from detention. 26 II. Claims for Relief 27 Petitioner contends the length of his detention, without a determination as to 28 whether he is a flight risk or a danger to the community, violates his right to due process. 1 (ECF No. 1 at 2, 5-7). Petitioner notes he used the CBP app to enter the United States and 2 that he was inspected at the border, and emphasizes he has no criminal history and he has 3 a sponsor in the United States. (ECF No. 1 at 19). Respondents summarily assert Petitioner 4 is not subject to a final order of removal and, therefore, his detention is mandatory, citing 5 8 U.S.C. § 1225(b)(2)(A), and Zadvydas v. Davis, 533 U.S. 678 (2001), and Jennings v. 6 Rodriguez, 583 U.S. 281 (2018). (ECF No. 12). 7 III. Analysis of Claims for Relief 8 The United States Constitution guarantees that the writ of habeas corpus is 9 “available to every individual detained within the United States.” Hamdi v. Rumsfeld, 542 10 U.S. 507, 525 (2004). The right to be free from physical restraint is “at the heart of the 11 liberty” guaranteed by the Due Process Clause of the Fifth Amendment. E.g., Zadvydas, 12 533 U.S. at 690. Although “detention during deportation proceedings [is] a constitutionally 13 valid aspect of the deportation process,” such detention must still comport with the 14 detainee’s right to due process. Demore v. Kim, 538 U.S. 510, 523 (2003). See also Wong 15 Wing v. United States, 163 U.S. 228, 235-237 (1896). 16 There is no statutory requirement that a noncitizen detained under § 1225(b) be 17 given a hearing regarding the continuation of their detention pending the finality of their 18 removal proceedings. However, the federal courts have generally held that the Due Process 19 Clause does not allow for indefinite detention of a noncitizen during the pendency of their 20 removal proceedings without some type of individualized assessment. See infra at 7-9. In 21 dissent in Jennings v. Rodriguez, 583 U.S. 281, 299-308 (2018), Justice Breyer eloquently 22 argued the indefensibility of allowing prolonged, unconsidered detention of noncitizens:
23 It is clear that the Fifth Amendment’s protections extend to “all persons within the territory of the United States.” ... But the Government 24 suggests that those protections do not apply to asylum seekers or other 25 arriving aliens because the law treats arriving aliens as if they had never entered the United States; hence they are not held within its territory. 26 This last-mentioned statement is, of course, false. All of these 27 noncitizens are held within the territory of the United States at an immigration detention facility. ... At most one might say that they are 28 “constructively” held outside the United States: the word “constructive” 1 signaling that we indulge in a “legal fiction,” shutting our eyes to the truth. But once we admit to uttering a legal fiction, we highlight, we do not answer, 2 the relevant question: Why should we engage in this legal fiction here? 3 The legal answer to this question is clear. We cannot here engage in this legal fiction. No one can claim, nor since the time of slavery has anyone 4 to my knowledge successfully claimed, that persons held within the United 5 States are totally without constitutional protection. Whatever the fiction, would the Constitution leave the Government free to starve, beat, or lash 6 those held within our boundaries? If not, then, whatever the fiction, how can 7 the Constitution authorize the Government to imprison arbitrarily those who, whatever we might pretend, are in reality right here in the United States? The 8 answer is that the Constitution does not authorize arbitrary detention. And 9 the reason that is so is simple: Freedom from arbitrary detention is as ancient and important a right as any found within the Constitution’s boundaries. See 10 Zadvydas, supra, at 720-721 [] (Kennedy, J., dissenting) (“inadmissible 11 aliens” who are “stopped at the border” are “entitled to be free from detention that is arbitrary or capricious”). 12 13 583 U.S. at 331-32 (emphasis in original). 14 On remand from Jennings, the Ninth Circuit Court of Appeals found that the 15 Supreme Court had chosen “to answer only the question whether the statutory text itself 16 included a limit on prolonged detention or a requirement of individual bond hearings.” 17 Rodriguez v. Marin, 909 F.3d 252, 255 (9th Cir. 2018).3 Citing the United States Supreme 18 Court’s opinion in United States v. Salerno, 481 U.S. 739, 755 (1987), the Ninth Circuit 19 stressed that “[a]rbitrary civil detention is not a feature of our American government,” and 20
21 3 The Rodriguez panel described the issue before the Supreme Court in Jennings as follows: In Jennings v. Rodriguez[] 138 S. Ct. 830 [] (2018), the Supreme Court held that 22 we misapplied the canon of constitutional avoidance to hold that certain immigration detention statutes, namely 8 U.S.C. §§ 1225(b), 1226(a), and 1226(c), 23 implicitly contain a reasonableness determination after which due process concerns 24 require that persons in prolonged mandatory detention are entitled to individualized bond hearings and possibly, conditional release. Although the Court sought and 25 received briefing on the straightforward constitutional question, i.e. without the implicit requirement of due process for persons in arbitrary prolonged detention, 26 whether these detention statutes are constitutional, it declined to reach the 27 constitutional question. The Court instead chose to answer only the question whether the statutory text itself included a limit on prolonged detention or a 28 requirement of individual bond hearings. Rodriguez v. Marin, 909 F.3d 252, 255 (9th Cir. 2018) 1 also expressed “grave doubts that any statute that allows for arbitrary prolonged detention 2 without any process is constitutional or that those who founded our democracy precisely 3 to protect against the government’s arbitrary deprivation of liberty would have thought so.” 4 Id. at 256 (emphasis added). 5 Although 8 U.S.C. § 1225(b), the statute under which Petitioner is detained, 6 provides that a noncitizen who is not under a final order of removal “shall” be detained 7 pending the conclusion of their removal proceedings, the federal courts have repeatedly 8 held that even statutorily-authorized detention of a noncitizen in removal proceedings must 9 comport with due process, as evaluated by the federal courts pursuant to their power to 10 award writs of habeas corpus. See Boumediene v. Bush, 553 U.S. 723, 797 (2008) (holding 11 that habeas corpus applied to detainees who were classified as enemy combatants and 12 stating “few exercises of judicial power are as legitimate or necessary as the responsibility 13 to hear challenges to the authority of the Executive to imprison a person.”), cited in 14 Chekhovskii v. Scott, No. 2:25-cv-02550, 2026 WL 353265, at *3-4 (W.D. Wash. Feb. 9, 15 2026). The Ninth Circuit Court of Appeals has recognized that prolonged civil immigration 16 detention without meaningful individualized safeguards raises serious constitutional 17 concerns and warrants relief when detention becomes unreasonable as applied to a 18 particular individual. See Rodriguez v. Robbins, 715 F.3d 1127, 1142-44 (9th Cir. 2013); 19 Tijani v. Willis, 430 F.3d 1241, 1247-49 (9th Cir. 2005). 20 A majority of the federal district courts that have considered the question have 21 concluded that at some point prolonged detention under § 1225(b), without an 22 individualized bond hearing, violates the detainee’s right to due process. See, e.g., Rash v. 23 LaRose, ___ F. Supp. 3d ___, No. 26-cv-0008, 2026 WL 249324, at *3 (S.D. Cal. 2026); 24 Larrazabal-Gonzalez v. Mason, ___ F. Supp. 3d ___, No. 26-cv-00049, 2026 WL 221706, 25 at *5 (S.D.W. Va. 2026) (“The Constitution does not tolerate what would be plainly 26 unlawful in the criminal context simply because the detention is labeled civil. Nor does the 27 Constitution withhold its protections when a person is an immigrant.”); Sadeqi v. LaRose, 28 809 F. Supp. 3d 1090, 1093 (S.D. Cal. 2025) (“This Court agrees with the majority position 1 that a petitioner detained under Section 1225(b)(1) may assert a due process challenge to 2 prolonged mandatory detention without a bond hearing.”); Fils-Aime v. FCI Berlin, 3 Warden, 808 F. Supp. 3d 218, 224 (D.N.H. 2025); Rashid v. Trump, 807 F. Supp. 3d 349, 4 363 (D. Vt. 2025); Kydyrali v. Wolf, 499 F. Supp. 3d 768, 772 (S.D. Cal. 2020) (“[T]he 5 Court joins the majority of courts across the country in concluding that an unreasonably 6 prolonged detention under 8 U.S.C. § 1225(b) without an individualized bond hearing 7 violates due process.”); Banda v. McAleenan, 385 F. Supp. 3d 1099, 1116-17 (W.D. Wash. 8 2019) (“prolonged mandatory detention pending removal proceedings, without a bond 9 hearing, will—at some point—violate the right to due process.”); Leonteva v. Noem, No. 10 26-cv-00043, 2026 WL 711766, at *5 (S.D. Ind. Mar. 13, 2026); Mashchenko v. Rokosky, 11 No. 25-cv-12387, 2026 WL 185204, at *3 (D.N.J. Jan. 25, 2026); Rodriguez Chavez v. 12 Holman, No. 25-cv-00267, 2026 WL 136902, at *3 (W.D. Pa. Jan. 20, 2026); Maksin v. 13 Warden, Golden State Annex, No. 25-cv-00955, 2025 WL 2879328, at *3 (E.D. Cal. Oct. 9, 14 2025); Abdul-Samed v. Warden of Golden State Annex Det. Facility, No. 25-cv-00098, 15 2025 WL 2099343, at *6 (E.D. Cal. July 25, 2025). 16 Absent the availability of § 2241 relief, in circumstances similar to Petitioner’s the 17 government could detain a noncitizen for an indeterminate period of time provided there 18 was no final order of removal. This does not conform to the Constitution’s guarantee of 19 due process to individuals present in the United States of America. It is recommended that 20 the Court join the federal District Courts that have concluded that prolonged mandatory 21 detention pending the finality of removal proceedings, without a bond hearing, at some 22 point violates the detainee’s right to due process of law. See Tavurov v. Noem, ___ F. Supp. 23 3d ___, 2026 WL 323054, at *4 (W.D. Wash. Feb. 6, 2026); Tenemasa-Lema v. Hyde, 810 24 F. Supp. 3d 244, 256 n.18 (D. Mass. Nov. 25, 2025); Gao v. LaRose, 805 F. Supp. 3d 1006, 25 1100 (S.D. Cal. 2025); A.L. v. Oddo, 761 F. Supp. 3d 822, 825-26 (W.D. Pa. 2025); Leke 26 v. Hott, 521 F. Supp. 3d 597, 603 n.8 (E.D. Va. 2021);4 Mbalivoto v. Holt, 527 F. Supp. 3d 27 4 In support of this conclusion, in Leke the Eastern District of Virginia cites the following 28 cases: 1 838, 851 (E.D. Va. 2020) (“[S]ome constitutionally adequate process must be provided; 2 and the Court concludes, based on Zadvydas, Demore, and Thuraissigiam, that Petitioner 3 is not foreclosed from the relief he seeks with respect to his detention either because he is 4 an entering alien, as opposed to an entered alien, or because there remains a discernable 5 statutory purpose for his detention.”); Kydyrali, 499 F. Supp. 3d at 772; Abdi v. Duke, 280 6 F. Supp. 3d 373, 393 (W.D.N.Y. 2017) (“The majority of the courts in this Circuit that 7 have considered the issue agree, and this Court finds their reasoning ... persuasive. Section 8 1225(b) does not permit the indefinite detention of individuals detained under that 9 statute.”); Mashchenko, 2026 WL 185204, at *3; Baishymyrov v. Warden of Golden State 10 Annex Det. Facility, No. 25-cv-01658, 2026 WL 145644, at *6 (E.D. Cal. Jan. 20, 2026); 11 Sufiiarov v. Warden, Otay Mesa Det. Ctr., No. 25-cv-03265, 2026 WL 26079, at *3 (S.D. 12 Cal. Jan. 5, 2026) (“The Court agrees with those courts that have found a noncitizen 13 detained under § 1225(b) for a prolonged period without an individualized bond hearing 14 may assert a constitutional right to due process.”); Abdul-Samed, 2025 WL 2099343, at *6; 15 Arechiga v. Archambeault, No. 23-cv-0600, 2023 WL 5207589, at *3 (D. Nev. Aug. 11, 16 2023); Bermudez Paiz v. Decker, No. 18-cv-4759, 2018 WL 6928794, at *10 (S.D.N.Y. 17 Dec. 27, 2018) (“Most judges who have squarely faced the question have applied the same 18
19 See also Kouadio v. Decker, 352 F. Supp. 3d 235, 241 (S.D.N.Y. 2018) (34-month detention of arriving alien without bond hearing violates due process); Kydyrali v. 20 Wolf, 499 F. Supp. 3d 768, 772, No. 3:20-cv-539 (S.D. Cal. 2020) (27-month 21 detention of arriving alien without bond hearing violates due process); Pierre v. Doll, 350 F. Supp. 3d 327, 332 (M.D. Pa. 2018) (23-month detention of arriving 22 alien without bond hearing violates due process); Mbalivoto v. Holt, No.1:20-cv- 827 at 5 (Dkt. 22) (E.D. Va. Aug. 11, 2020) (22-month detention of arriving alien 23 without bond hearing violates due process); Jamal A. v. Whitaker, 358 F. Supp. 3d 24 853, 859 (D. Minn. 2019) (19-month detention of arriving alien without bond hearing violates due process); Tuser E. v. Rodriguez, 370 F. Supp. 3d 435, 442–43 25 (D. N.J. 2019) (same); Djelassi v. ICE Field Office Dir., 434 F. Supp. 3d 917, 930 (W.D. Wash. 2020) (18-month detention of arriving alien without bond hearing 26 violates due process); Banda v. McAleenan, 385 F. Supp. 3d 1099, 1177 (W.D. 27 Wash. 2019) (17-month detention of arriving alien without bond hearing violates due process); Lett v. Decker, 346 F. Supp. 3d 379, 387 (S.D.N.Y. 2018) (10-month 28 detention of arriving alien without bond hearing violates due process). 521 F. Supp. 3d at 603 n.8. 1 logic to § 1225(b), holding that arriving aliens, like criminal aliens, cannot be detained for 2 an unreasonably prolonged period of time without a bond hearing.”). Contra Petgrave v. 3 Aleman, 529 F. Supp. 3d 665, 667 (S.D. Tex. 2021); St. Charles v. Barr, 514 F. Supp. 3d 4 570, 579 (W.D.N.Y. 2021); Mendoza-Linares v. Garland, No. 21-cv-1169, 2024 WL 5 3316306, at *2 (S.D. Cal. June 10, 2024). 6 The Ninth Circuit Court of Appeals has not provided the lower courts with guidance 7 regarding the point at which an immigration detainee’s prolonged detention under 8 § 1225(b) without a bond hearing becomes unconstitutional. The District Courts within the 9 Ninth Circuit’s jurisdiction have generally found the test stated in Banda v. McAleenan, 10 385 F. Supp. 3d 1099, 1117 (W.D. Wash. 2019) applicable with regard to those detained 11 pursuant to § 1225(b), see, e.g., Prabhpreet v. Larose, 26-cv-393, 2026 WL 310192, at *3 12 (S.D. Cal. Feb. 5, 2026), although some courts have instead applied the test stated in 13 Mathews v. Eldridge, 424 U.S. 319, 335 (1976), see, e.g., Tigranyan v. Warden of Cal. City 14 Det., No. 25-cv-01554, 2026 WL 91765, at *5-7 (E.D. Cal. Jan. 13, 2026), which has often 15 been applied in situations involving detention under § 1226(c). Under either test, Petitioner 16 is entitled to a bond hearing to determine whether he would be a flight risk or a danger to 17 the community if released from detention. 18 The Banda court considered the following six factors to determine whether 19 continued detention under § 1225(b) without a bond hearing violated the detainee’s due 20 process rights:
21 (1) the total length of detention to date; (2) the likely duration of future 22 detention; (3) the conditions of detention; (4) delays in the removal proceedings caused by the detainee; (5) delays in the removal proceedings 23 caused by the government; and (6) the likelihood that the removal 24 p roceedings will result in a final order of removal. 25 385 F. Supp. 3d at 1118, citing Jamal A. v. Whitaker, 358 F. Supp. 3d 853, 858-59 26 (D. Minn. 2019). See also Sadeqi, 809 F. Supp. 3d at 1094; Kydyrali, 499 F. Supp. 3d at 27 773-74; Prabhpreet, 2026 WL 310192, at *2-3; Amado v. United States Dep’t of Just., No. 28 1 25-cv-2687, 2025 WL 3079052, at *5 (S.D. Cal. Nov. 4, 2025); Kadir v. LaRose, 25-cv- 2 1045, 2025 WL 2932654, at *4 (S.D. Cal. Oct. 15, 2025). 3 With regard to the total length of detention to date, Petitioner has now been detained 4 for seventeen months. Although the length of Petitioner’s detention does not, by itself, 5 establish prolonged detention in violation of due process, neither does that length of 6 detention insulate Petitioner’s case from constitutional review. The federal district courts 7 have ordered a bond hearing where a petitioner was subject to mandatory detention for a 8 shorter length of time. See, e.g., Lopez v. Garland, 631 F. Supp. 3d 870, 879 (E.D. Cal. 9 2022) (“Petitioner has been in immigration detention ... approximately one year. District 10 court have found shorter lengths of detention ... without a bond hearing to be 11 unreasonable.”) (collecting cases); Amado, 2025 WL 3079052, at *5 (“Courts have found 12 detention over seven months without a bond hearing weighs toward a finding that it is 13 unreasonable.”) (collecting cases); Tonoyan v. Andrews, No. 25-cv-00815, 2025 WL 14 3013684, at *4 (E.D. Cal. Oct. 28, 2025) (“Petitioner has been detained approximately 11 15 months. This period ... qualifies as prolonged.”); Gao, 805 F. Supp. 3d at 1112 (“The Court 16 finds that Petitioner’s detention for over 10 months without a bond hearing, in the context 17 of the specific circumstances described above, has become unreasonable and violates due 18 process.”). The Court may reasonably conclude that the first Banda factor weighs in favor 19 of Petitioner. 20 The second Banda factor evaluates the potential duration of future detention. It will 21 likely take a year for the BIA to reach a decision regarding the IJ’s denial of asylum and, 22 should Petitioner exercise his right to appeal any negative decision by the BIA to the Ninth 23 Circuit Court of Appeals, a decision from the appellate court could take up to two years. 24 See Banda, 385 F. Supp. 3d at 1119 (finding this factor weighed in the petitioner’s favor 25 where a petitioner who had “only recently” appealed the IJ’s denial of his case to the BIA 26 faced a process that could “take up to two years or longer”); Barraza v. ICE Field Off. Dir., 27 No. 23-cv-1271, 2023 WL 9600946, at *6 (W.D. Wash. Dec. 8, 2023), report and 28 recommendation adopted, 2024 WL 518945 (W.D. Wash. Feb. 9, 2024) (citing the Ninth 1 Circuit Court of Appeals website’s timeline for appeals and noting a petitioner who filed 2 their petition for review in the Ninth Circuit a few months prior could be facing two years 3 or more of additional time in custody);5 Hong v. Mayorkas, No. 20-cv-1784, 2021 WL 4 8016749, at *4 (W.D. Wash., June 8, 2021) (finding this factor favored the petitioner 5 because they faced “an additional 15 to 38 months” in detention where they were at the 6 “earliest stages” of pursuing a petition for review before the Ninth Circuit Court of 7 Appeals). Under the government’s theory of mandatory detention pending finality of an 8 order of removal, and given the current flood of cases before the BIA and the appellate 9 courts, Petitioner might potentially be detained for an additional one or two years pending 10 the final outcome of his removal proceedings. Therefore, the second Banda factor also 11 weighs in favor of Petitioner. 12 The third factor to be considered examines the conditions of detention. “The more 13 that the conditions under which the noncitizen is being held resemble penal confinement, 14 the stronger the argument that [the noncitizen] is entitled to a bond hearing.” Barraza, 2023 15 WL 9600946, at *6 (internal quotations omitted). Petitioner is detained at the San Luis 16 Regional Detention Center, which houses both immigration detainees and criminally- 17 sentenced individuals. The conditions under which Petitioner is detained closely resemble 18 penal confinement. Petitioner is not able to come and go from the detention center. 19 Visitation is limited, the specific times that visitors are allowed are “subject to change,” 20 and visitors are searched. Inmate mail is screened. The detention center determines when 21 Petitioner is able to exercise, what he may eat, and what belongings he may possess. The 22 Court may reasonably conclude that the third Banda factor weighs in favor of Petitioner. 23 The fourth and fifth Banda factors examine the delays in the removal proceedings 24 caused by the detainee and delays in the removal proceedings caused by the government. 25 There is no evidence that Petitioner has engaged in any delay of his proceedings other than
26 5 At this time the Ninth Circuit advises that a civil appeal can take six to twelve months 27 from the date the notice of appeal is docketed to being set for oral argument, with another three months to a year before a decision is issued, or four months from the time an appeal is fully briefed 28 until a decision is made if oral argument is not ordered. See https://www.ca9.uscourts.gov/general/faq, last visited Apr. 19, 2026. 1 by appealing the IJ’s denial of asylum and withholding of relief from removal to the BIA, 2 which he has a right to do. A review of Petitioner’s counseled brief to the BIA (ECF No. 3 1-1 at 17-53) reveals legitimate bases for relief from the IJ’s order. There is no indication 4 that the government has caused any delay in Petitioner’s proceedings. However, it is noted 5 that the government did not file a brief in Petitioner’s appeal to the BIA and, accordingly, 6 the government appears to cede Petitioner’s allegations of error in the IJ’s decision. 7 The sixth prong of the Banda test considers the likelihood that Petitioner’s removal 8 proceedings will result in a final order of removal. In considering the “likelihood that the 9 removal proceedings will result in a final order of removal,” the court considers “whether 10 the noncitizen has asserted any defenses to removal.” Banda, 385 F. Supp. at 1120 11 (citations omitted). Where the petitioner has asserted a good faith challenge to removal, 12 “the categorical nature of the detention will become increasingly unreasonable.” Id. 13 (internal quotations omitted), cited in Kadir, 2025 WL 2932654, at *5. Petitioner has 14 asserted a good faith challenge to the order of removal and the denial of relief from 15 removal. It is entirely possible that Petitioner will be awarded relief from removal. A close 16 reading of Petitioner’s brief to the BIA, which the government has not challenged, indicates 17 Petitioner has met the requirements for a grant of asylum or withholding of removal, and 18 that the IJ’s decision was not without procedural and legal error. This factor weighs in favor 19 of Petitioner. 20 Notably, one of the Matthews factors is consideration of “the Government’s interest, 21 including the function involved and the fiscal and administrative burdens that the additional 22 or substitute procedural requirement,” i.e., a bond hearing, “would entail.” 424 U.S. at 335. 23 The government’s interest in Petitioner’s detention is to ensure that Petitioner appears for 24 all of his immigration proceedings, i.e., that he is not a flight risk, and that he is not a danger 25 to the community. Petitioner has not committed any crime, faces no charges, and did not 26 attempt to avoid inspection when he appeared at a port of entry. Petitioner appeared for 27 inspection with the hope of admission and the express acquiescence of the government via 28 the CBP process. Petitioner has a wife, and a child he has never seen, who are legally 1 present in the United States, and it is unlikely he would jeopardize an opportunity to be 2 with them by failing to appear at his scheduled removal proceedings or by committing any 3 crime. Petitioner and his family have a sponsor who will ensure that the family does not 4 become an economic burden on the state. 5 Having determined that a bond hearing is required, the question of who bears the 6 burden of proof at a bond hearing in the context of § 1225(b) detention should be answered. 7 This is not a question clearly resolved by the federal courts at this time. The Supreme Court 8 has stressed that “due process is flexible” and “calls for such procedural protections as the 9 particular situation demands.” Jennings, 583 U.S. at 314, 138. 10 Some district courts within the Ninth Circuit have concluded that at bond hearings 11 involving those detained for a prolonged period of time pursuant to § 1225(b), without an 12 individualized finding of whether they should be released on bond pending the finality of 13 their removal proceedings, the government bears the burden of establishing the detainee 14 should not be released on bond because they are a flight risk and/or a danger to the 15 community. See Gao, 805 F. Supp. 3d at 1112; Chenghong Xie v. Larose, No. 3:26-cv- 16 01116, 2026 WL 836351, at *2 (S.D. Cal. Mar. 26, 2026); Sadeqi, 809 F. Supp. 3d at X; 17 Kadir, 2025 WL 2932654, at *6; Idiev v. Warden of the Golden State Annex Det. Facility, 18 No. 25-cv-01030, 2025 WL 3089349, at *6 (E.D. Cal. Nov. 5, 2025) (ordering bond 19 hearing where “the government must justify Petitioner’s continued confinement under 20 § 1225(b) by clear and convincing evidence that Petitioner is a flight risk or a danger to the 21 community”). The Court could, therefore join these courts, and apply the “general 22 principles of procedural due process,” and place the burden of establishing the elements 23 warranting detention on the government rather than requiring Petitioner to prove those 24 elements in the negative. See Fils-Aime, 808 F. Supp. 3d at 224; Sandesh v. LaRose, No. 25 26-cv-0846, 2026 WL 622690, at *5 (S.D. Cal. Mar. 5, 2026), citing, e.g., Banda, 385 F. 26 Supp. 3d at 1120; Belqasim v. Bostock, No. 25-cv-01282, 2025 WL 3466971, at *10 (W.D. 27 Wash. Oct. 28, 2025), report and recommendation adopted, 2025 WL 3170929 (Nov. 13, 28 2025). See also Rodriguez Diaz v. Garland, 53 F.4th 1189, 1202 n.4 (Wardlaw, J., 1 dissenting, discussing the equities of placing the burden on the government in the context 2 of detention under § 1226); Gao, 805 F. Supp. 3d at 1112; A.E. v. Andrews, No. 25-cv- 3 00107, 2025 WL 1424382, at *5 (E.D. Cal. May 16, 2025) (recommending that 4 “Respondent be ordered to provide Petitioner with a bond hearing before an immigration 5 judge at which Respondent must justify Petitioner’s continued detention by clear and 6 convincing evidence,” in the context of detention pursuant to § 1225(b) which the court 7 found had become unreasonably prolonged). The Court could also order that in the event 8 Petitioner is determined to not be a danger to the community and to not be a flight risk, the 9 IJ must consider Petitioner’s financial circumstances or alternative conditions of release 10 when determining any bond. See Hernandez v. Sessions, 872 F.3d 976, 1000 (9th Cir. 2017) 11 (“Plaintiffs are likely to succeed on their challenge under the Due Process Clause to the 12 government’s policy of allowing ICE and IJs to set immigration bond amounts without 13 considering the detainees’ financial circumstances or alternative conditions of release.”); 14 Black v. Decker, 103 F.4th 133, 138 (2d Cir. 2024) (The district court “correctly directed 15 the immigration judge (“IJ”), in setting his bond and establishing appropriate terms for his 16 potential release, to consider his ability to pay and alternative means of assuring 17 appearance.”). 18 IV. Conclusion 19 Petitioner’s detention for seventeen months without a bond hearing, under the 20 circumstances and equities of this case, has become unreasonable and violates Petitioner’s 21 Fifth Amendment right to due process of law. Petitioner is entitled to a prompt and 22 individualized bond hearing, at which Respondents bear the burden of justifying his 23 continued detention by a showing of clear and convincing evidence that Petitioner would 24 likely flee or pose a danger to the community if released. 25 Accordingly, 26 IT IS RECOMMENDED that the petition for habeas relief pursuant to § 2241 27 (ECF No. 1) be granted, and the Court order that within seven (7) days of the date the 28 petition is granted Petitioner be given a bond hearing before a neutral adjudicator at which 1 | hearing the government must bear the burden of showing that Petitioner should not be 2 | released on bond because he is a flight risk and a danger to the community. 3 This recommendation is not an order that is immediately appealable to the Ninth 4) Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of 5 | Appellate Procedure, should not be filed until entry of the District Court’s judgment. Rule 6| 72(b), Federal Rules of Civil Procedure, provides that the parties shall have fourteen (14) 7 | days from the date of service of a copy of this recommendation within which to file specific 8 | written objections with the Court. Pursuant to Rule 7.2(e)(3) of the Local Rules of Civil Procedure for the United States District Court for the District of Arizona, objections to the 10 | Report and Recommendation may not exceed ten (10) pages in length. Failure to timely 11 | file objections to any factual or legal determinations of the Magistrate Judge will be 12 | considered a waiver of a party’s right to de novo appellate consideration of the issues. See 13 | United States v. Reyna—Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc). 14 15 Dated this 10th day of April, 2026. 16
19 Camille D. Bibles 20 United States Magistrate Judge 21 22 23 24 25 26 27 28
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