Mokhira Khasanova v. Eric Rokosky, et al.

Opinion

1 WO ASH 2 3 4

8 Mokhira Khasanova, No. CV-26-00763-PHX-JCH (JFM)

9 Petitioner,

10 v. ORDER

11 Eric Rokosky, et al.,

12 Respondents. 13 14 Petitioner filed this action under 28 U.S.C. § 2241 challenging her immigration 15 detention. (Doc. 1). On February 5, 2026, the Court issued an Order to Show Cause why 16 the Petition should not be granted. (Doc. 3). Upon review of the briefing (Docs. 6, 12–13),1 17 the Court will grant the Petition in part and order that Petitioner receive a bond 18 redetermination hearing within seven days. 20 Petitioner is a native of Uzbekistan and citizen of Russia. (Doc. 1 at 2). In December 21 2023, Petitioner travelled to Mexico and arranged through the CBPOne app to request 22 parole into the United States. (Id.). On August 8, 2024, pursuant to an appointment made 23 through the CBPOne app, Petitioner presented herself to immigration authorities and was 24 taken into custody. (Id.). Petitioner thereafter timely filed for asylum, withholding of 25 removal, and protection under the Convention Against Torture. (Id.). On April 30, 2025, 26 an immigration judge (“IJ”) granted Petitioner asylum. (Doc. 1-1 at 27–30). The 27

28 1 Petitioner has also filed a Motion to Expedite this matter. (Doc. 8). In light of this Order, the Court will deny the Motion as moot. 1 government appealed that decision (Doc. 1-1 a 32-34), and the Board of Immigration 2 Appeals (“BIA”) subsequently remanded the matter back to the IJ. Notably, however, the 3 only issues on remand were whether Petitioner was also a citizen of Uzbekistan, and, if so, 4 whether she was also entitled to protection from removal to that country in addition to 5 Russia. (Doc. 12-1 at 5). On April 30, 2026, the IJ again granted Petitioner asylum as to 6 Russia, and additionally further granted her asylum as to Uzbekistan. (Id. at 15). The 7 government again appealed, and that appeal remains pending. (Doc. 13-1 at 2–3). 8 As of the date of this Order, Petitioner has been detained for nearly two years. 9 II. 28 U.S.C. § 2241 WRIT OF HABEAS CORPUS 10 The district court is empowered to issue a writ of habeas corpus where an individual 11 is held “in custody in violation of the Constitution or laws or treaties of the United States.” 12 28 U.S.C. § 2241(c)(3). The language of § 2241 and “the common-law history of the writ” 13 makes clear “that the essence of habeas corpus is an attack by a person in custody upon the 14 legality of that custody, and that the traditional function of the writ is to secure release from 15 illegal custody.” Preiser v. Rodriguez, 411 U.S. 475, 484 (1973) (noting that the writ of 16 habeas corpus “was early recognized by [the Supreme] Court as a ‘great constitutional 17 privilege’” (quoting Ex parte Bollman, 8 U.S. (4 Cranch) 75, 95 (1807))); cf. In re Kaine, 18 55 U.S. (14 How.) 103 (1852) (applying the writ of habeas corpus in the immigration 19 context). The Supreme Court has made clear that § 2241 applies to noncitizens2 challenging 20

21 2 Undersigned will 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 22 Appeals’ precedent, such as Avilez v. Garland, 69 F.4th 525 (9th Cir. 2023), which specifically states: 23 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. Id. 527 n.1 (cleaned up). 1 their immigration detention. See Zadvydas v. Davis, 533 U.S. 678, 687 (2001). 2 Because Petitioner only challenges her prolonged 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[.]”). 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 12 (9th Cir. 2023) (quoting Prieto-Romero v. Clark, 534 F.3d 1053, 1057 (9th Cir. 2008)). 13 Respondents maintain—and Petitioner does not dispute—that Petitioner is “an applicant 14 for admission” subject to mandatory detention under 8 U.S.C. § 1225(b)(2). (Doc. 6 15 at 3–5). Respondents are correct. Where, as here, an asylum officer determines at the time 16 of the credible fear interview that the noncitizen has a credible fear of persecution, the 17 noncitizen must “be detained for further consideration of [his] application for asylum” 18 under 8 U.S.C. § 1225(b)(1)(B)(ii). Although the IJ granted Petitioner asylum on two 19 separate occasions, the government appealed both grants. Considering that the IJ’s most 20 recent grant of asylum remains pending before the BIA, Petitioner does not have an 21 administratively final grant of asylum. Hence, § 1225(b)(2) continues to govern 22 Petitioner’s detention in this action. 23 B. Due Process 24 This does not end the matter, however, as a petitioner may nevertheless be entitled 25 to relief under the Constitution even when detained under statute. The Court thus turns to 26 Petitioner’s due process claim. The Court’s due process analysis is separated into two steps: 27 First, the Court asks “whether there exists a liberty or property interest of which a person 28 has been deprived,” and if so, “whether the procedures followed by the [government] were 1 constitutionally sufficient.” Swarthout v. Cooke, 562 U.S. 216, 219 (2011). 2 1. Liberty Interest 3 “A liberty interest may arise from the Constitution itself . . . or it may arise from an 4 expectation or interest created by state laws or policies.” Wilkinson v. Austin, 545 U.S. 209, 5 221 (2005) (citations omitted). If the Court finds a cognizable liberty interest, it then 6 determines whether the administrative procedures are sufficient considering the “particular 7 situation.”3 Mathews v. Eldridge, 424 U.S. 319, 334 (1976) (quoting Morrissey v. Brewer, 8 408 U.S. 471, 481 (1972)). 9 In the instant action, Petitioner argues she has a fundamental liberty interest in her 10 freedom (Doc. 1 at 7–9), while Respondents maintain she does not (Doc. 1 at 7–9; Doc. 6 11 at 4–5). Respondents urge that Petitioner “has, at most, sharply limited due process rights, 12 as an alien subject to the ‘entry fiction.’” (Doc. 6 at 4). 13 The Court finds that the entry fiction doctrine does not foreclose Petitioner’s due 14 process claim as to her present detention. The entry fiction doctrine is based upon the 15 “distinction between those aliens who have come to our shores seeking admission,” such 16 as Petitioner, “and those who are within the United States after an entry, irrespective of its 17 legality.” Leng May Ma v. Barber, 357 U.S. 185, 187 (1958). The latter category of 18 noncitizens have “additional rights and privileges not extended to those in the former 19 category who are merely ‘on the threshold of initial entry.’” Id. (quoting Shaughnessy v. 20 U.S. ex rel. Mezei, 345 U.S. 206, 212 (1953)); Dep’t of Homeland Sec. v. Thuraissigiam, 21 591 U.S. 103, 139 (2020) (“Whatever the procedure authorized by Congress is, it is due 22 process as far as an alien denied entry is concerned.” (quoting U.S. ex rel. Knauff v. 23 Shaughnessy, 338 U.S. 537, 544 (1950))). Those noncitizens on the “threshold of initial 24 entry” are not considered “to have ‘effected an entry.’” Thuraissigiam, 591 U.S. at 140 25 (quoting Zadvydas, 533 U.S. at 693). Put differently, “[w]hen an alien arrives at a port of 26 3 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 entry—for example, an international airport—the alien is on U.S. soil, but the alien is not 2 considered to have entered the country for the purposes of this rule.” Id. at 139. Therefore, 3 while a noncitizen may be physically present within the country, the noncitizen is “still in 4 theory of law at the boundary line and ha[s] gained no foothold in the United States.” 5 Zadvydas, 533 U.S. at 693 (quoting Kaplan v. Tod, 267 U.S. 228, 230 (1925)). 6 This distinction is predicated upon the following “fundamental proposition: ‘The 7 power to admit or exclude aliens is a sovereign prerogative.’” Thuraissigiam, 591 U.S. 8 at 139 (cleaned up) (quoting Landon v. Plasencia, 459 U.S. 21, 32 (1982)). “The 9 Constitution gives ‘the political department of the government’ plenary authority to decide 10 which aliens to admit, . . and a concomitant of that power is the power to set the procedures 11 to be followed in determining whether an alien should be admitted.” Id. (quoting Nishimura 12 Ekiu v. United States, 142 U.S. 651, 659 (1892)). 13 Based on the foregoing, Respondents extrapolate that Petitioner, due to the entry 14 fiction doctrine, “is entitled only to those procedures granted by statute because she is not 15 entitled to procedural due process protections.” (Doc. 6 at 5.) The Court disagrees with 16 Respondents approach. Based on a review of current district court interpretation and a plain 17 reading of Supreme Court precedent, it appears that, outside of the context of admissions, 18 a noncitizen has a liberty interest to be free from civil confinement once their detention has 19 become prolonged. 20 Undersigned is persuaded by the interpretation of numerous courts, both in this 21 District and its sister districts. These courts have held that the entry fiction doctrine applies 22 only to the procedural rights of noncitizens regarding admission—not every procedure in 23 the immigration context—i.e., the doctrine is inapplicable where the petitioner challenges 24 his or her length of detention. See D.V.D. v. U.S. Dep’t of Homeland Sec., No. CV 25- 25 10676-BEM, 2026 WL 521557, at *28–31 (D. Mass. Feb. 25, 2026);4 see also Padilla v. 26

27 4 Although D.V.D. is an out-of-circuit decision that is currently stayed by the First Circuit, the Court is nonetheless persuaded by D.V.D.’s analysis. Furthermore, the 28 District of Arizona previously relied upon D.V.D. in Guevara Serrano v. Bondi, No. CV- 26-00110-PHX-DJH, at *3–4 (D. Ariz. Mar. 9, 2026). 1 U.S. Immigr. & Customs Enf’t, 704 F. Supp. 3d 1163, 1170–72 (W.D. Wash. 2023) (noting 2 that when a petitioner “do[es] not challenge the admission process in any way or assert a 3 right to remain in the United States,” the entry fiction doctrine is inapplicable); Salamakhin 4 v. Noem, No. CV-26-00330, 2026 WL 1250296, at*4–5 (D. Ariz. May 6, 2026) (applying 5 Padilla and D.V.D.). These decisions and similar decisions in other district courts 6 interpreting the entry fiction doctrine, are based on a finding that arriving noncitizens, such 7 as Petitioner, have “only those rights regarding admission that Congress has provided by 8 statute.” Thuraissigiam, 591 U.S. at 140 (emphasis added). 9 For example, the district court in D.V.D. recently illustrated why the entry fiction 10 doctrine does not foreclose Petitioner’s as-applied challenge to the length of her detention. 11 In D.V.D., the court noted that, although the entry fiction doctrine “provides an exception 12 to the otherwise geographic scope of the Due Process Clause,” the doctrine only impacts 13 those due process rights “regarding admission.” D.V.D., 2026 WL 521557, at *30 (cleaned 14 up) (quoting Thuraissigiam, 591 U.S. at 140). The court proceeded to “distinguish rights 15 regarding admission,” which relate to the government’s “sovereign authority to admit 16 noncitizens only in cases as it may see fit,” with other interests that might be implicated by 17 the Due Process Clause. D.V.D., 2026 WL 521557, at *30 (cleaned up). Because the D.V.D. 18 petitioners neither challenged their orders of removal nor the process resulting in those 19 orders, the government’s sovereign prerogative was not implicated. Id. at *30–31 (citing 20 Johnson v. Guzman Chavez, 594 U.S. 523, 536 (2021)). Hence, the entry fiction doctrine 21 did not bar the petitioners’ non-admissions due process challenges. Id. at *31. 22 In a truncated fashion, the court in Padilla refuted the government’s entry fiction 23 argument. There, the court rejected the government’s claim that the entry fiction doctrine 24 broadly applied to any due process challenge, noting that such an assertion “is untethered 25 to the claim in Thuraissigiam and the [Supreme] Court’s reasoning.” Padilla, 704 F. Supp. 26 3d at 1171. Rather, the entry fiction doctrine is constrained “only [to] those rights regarding 27 admission that Congress has provided by statute.” Id. at 1172 (emphasis omitted) (quoting 28 Thuraissigiam, 591 U.S. at 140). Hence, where a petitioner “do[es] not challenge the 1 admission process in any way or assert a right to remain in the United States,” the entry 2 fiction doctrine does not apply. Padilla, 704 F. Supp. 3d at 1172. 3 Neither a bond hearing nor release equate to admission. See Rincon v. Hyde, 810 F. 4 Supp. 3d 101, 107 (D. Mass. 2025) (noting that, if a petitioner were released following a 5 bond hearing, they “will be subject to the same removal proceedings as before, with no 6 new right to remain”). Thus, Petitioner’s challenge to her length of detention does not 7 invoke any “rights regarding admission.” Thuraissigiam, 591 U.S. at 140; see D.V.D., 2026 8 WL 521557, at *30 (“It makes sense to distinguish between rights regarding admission and 9 other interests that might be protected by the Due Process Clause.”). 10 Neither Padilla nor D.V.D. challenge “more than a century of Supreme Court 11 caselaw confirm[ing] that the proper application of an entry fiction, where otherwise 12 appropriate, is to preserve the Government’s authority over the determination of a 13 noncitizen’s admissibility.” D.V.D., 2026 WL 521557, at *30; Padilla, 704 F. Supp. 3d 14 at 1171–72. Rather, the decisions apply Supreme Court precedent to find that where a party 15 “challenge[s] neither their orders of removal nor any of the processes that produced those 16 orders, their claims do not implicate, nor even relate to, the issue of their admissibility.” 17 D.V.D., 2026 WL 521557, at *31; Padilla, 704 F. Supp. 3d at 1172 (finding that the class 18 of plaintiffs were not challenging the admissions process nor their right to stay in the 19 country, meaning that the entry fiction doctrine did not bar their due process claim). 20 Based on this persuasive interpretation and “the Ninth Circuit’s articulation of 21 ‘grave doubts’ about the constitutionality of ‘any statute that allows for arbitrary prolonged 22 detention without any process,’” the Court finds that the entry fiction doctrine does not 23 prohibit as-applied challenges to a petitioner’s length of detention. Ramirez v. Sessions, 24 No. 18-CV-05188-SVK, 2019 WL 11005487, at *6 (N.D. Cal. Jan. 30, 2019) (quoting 25 Rodriguez v. Marin, 909 F.3d 252, 256–57 (9th Cir. 2018) (“Arbitrary civil detention is not 26 a feature of our American government. ‘[L]iberty is the norm, and detention prior to trial 27 or without trial is the carefully limited exception.’” (quoting United States v. Salerno, 28 481 U.S. 739, 755 (1987))). 1 This holding comports with the Supreme Court’s extensive catalog of immigration 2 decisions. The Supreme Court has repeatedly reiterated that in American society, “liberty 3 is the norm,” which necessitates that civil detention “is the carefully limited exception.” 4 Foucha v. Louisiana, 504 U.S. 71, 83 (1992) (quoting Salerno, 481 U.S. at 755); Addington 5 v. Texas, 441 U.S. 418, 425 (1979) (“This Court repeatedly has recognized that civil 6 commitment for any purpose constitutes a significant deprivation of liberty that requires 7 due process protection.”); cf. Lopez v. Decker, 978 F.3d 842, 850 (2d Cir. 2020) (“The 8 Supreme Court has been unambiguous that executive detention orders, which occur 9 without the procedural protections required in courts of law, call for the most searching 10 review.” (citing Boumediene v. Bush, 553 U.S. 723, 781–83, 786 (2008))). 11 This contention is no less valid when considering that Petitioners are not citizens, 12 see Yick Wo v. Hopkins, 118 U.S. 356, 368–69 (1886), because “[t]he Fifth Amendment, 13 as well as the Fourteenth Amendment, protects every one of” the “millions of aliens within 14 the jurisdiction of the United States.” Mathews v. Diaz, 426 U.S. 67, 77 (1976); Reno v. 15 Flores, 507 U.S. 292, 306 (1993) (“It is well established that the Fifth Amendment entitles 16 aliens to due process of law in deportation proceedings.” (citing The Japanese Immigration 17 Case, 189 U.S. 86, 100–01 (1903))); Wong Wing v. United States, 163 U.S. 228, 238 (1896) 18 (“[I]t must be concluded that all persons within the territory of the United States are entitled 19 to the protection guarant[e]ed by th[e Fifth and Sixth Amendments], and that even aliens 20 shall not . . . be deprived of life, liberty, or property without due process of law.”). 21 “The constitutional sufficiency of [due process] procedures provided in any 22 situation, of course, varies with the circumstances.” Landon, 459 U.S. at 33–34. Here, it 23 appears that affording Petitioner constitutional due process protections not related to 24 admission is congruent with binding precedent. Therefore, the Court declines to follow 25 Respondents’ characterization of the entry fiction doctrine. 26 . . . . 27 . . . . 28 . . . . 1 2. Due Process Rights Regarding Petitioner’s Prolonged Detention 2 In arguing that her detention has become unconstitutionally prolonged, Petitioner 3 cites Mathews v. Eldridge. (Doc. 1 at 9). However, Petitioner does not apply the three-part 4 Mathews test5 (Id.), nor do Respondents address Mathews (Doc. 6). 5 Courts in this circuit and beyond have grappled over what test to use when 6 determining whether procedural due process requires relief for a noncitizen detained under 7 § 1225(b). See Doe v. Andrews, 1:25-cv-00333-JLT-HBK, at *15–17 (E.D. Cal. Mar. 23, 8 2026) (applying the 3-factor test from Lopez v. Garland, 631 F. Supp. 3d 870, 879 (E.D. 9 Cal. 2022)); see also Galkin v. Scott, No. 2:26-cv-00530-TLF, 2026 U.S. Dist. LEXIS 10 46838, at *7 (W.D. Wash. Mar. 6, 2026) (applying the 6-part Banda test (citing Banda v. 11 McAleenan, 385 F. Supp. 3d 1099, 1118 (W.D. Wash. 2019))); Leonteva v. Noem, 12 No. 4:26-cv-00043-SEB-KMB, 2026 U.S. Dist. LEXIS 52217, at *22 (S.D. Ind. Mar. 13, 13 2026) (applying the 6-factor Banda test, but calling it the Jamal A test (citing Jamal A. v. 14 Whitaker, 358 F. Supp. 3d 853, 858–59 (D. Minn. 2019))); L.S. v. Warden, Otay Mesa Det. 15 Ctr., No. 25-cv-3598-LL-BJW, 2026 U.S. Dist. LEXIS 10299, at *11–15 (S.D. Cal. Jan. 16 20, 2026) (applying the 3-part Mathews v. Eldridge test (citing Mathews, 424 U.S. at 335)). 17 Out of the abovementioned tests, the Court finds the Banda test the most applicable 18 to the situation at hand. Under the Banda test, the Court considers the following factors: 19 (1) the total length of detention to date; (2) the likely duration of future 20 detention; (3) the conditions of detention; (4) delays in the removal proceedings caused by the detainee; (5) delays in the removal proceedings 21 caused by the government; and (6) the likelihood that the removal 22 proceedings will result in a final order of removal. 23 385 F. Supp. 3d at 1118. 24 The Court finds the Banda test more suitable than the Mathews and Lopez6 tests.

25 5 Under the Mathews test, the Court considers: “First, the private interest that 26 will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or 27 substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute 28 procedural requirement would entail.” 424 U.S. at 335. 6 Under the Lopez test, “the Court will look to the total length of detention to 1 Beginning with Mathews, the Court concurs with other district courts that “while the 2 Mathews factors may be well-suited to determining whether due process requires a second 3 bond hearing, they are not particularly dispositive of whether prolonged mandatory 4 detention has become unreasonable in a particular case.” Lopez, 631 F. Supp. 3d at 879. 5 Put differently, the Mathews test is apt where the question is whether an administrative 6 procedure is “constitutionally sufficient,” but “[i]t does not resolve the more fundamental 7 issue of whether any procedure—such as a bond hearing—must be provided.” Banda, 8 385 F. Supp. 3d at 1106–07.7 9 Turning next to the Lopez test, the Court notes this test “concern[s] due process 10 challenge[s] to mandatory detention under § 1226(c), [and is] in essence, a truncated 11 version of the factors enumerated in Banda.” Andrews, 1:25-cv-00333-JLT-HBK, at *14. 12 Because the six-factor Banda test is more detailed than Lopez and is better suited for 13 date, the likely duration of future detention, and the delays in the removal proceedings 14 caused by the petitioner and the government.” Lopez, 631 F. Supp. 3d at 879. 7 In any event, the outcome applying Mathews and Banda would be the 15 same—i.e., Petitioner would be entitled to an individual bond hearing. Applying the first Mathews element, the Court finds that Petitioner has a strong private interest in her liberty 16 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 17 from imprisonment is at the ‘core of the liberty protected by the Due Process Clause.’” (quoting Foucha, 504 U.S. at 80)). 18 Turning to the second element, considering the prolonged nature of Petitioner’s 19 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. 20 2013) (noting that the discretionary parole system envisioned under the Immigration and Naturalization Act is insufficient “to overcome the constitutional concerns raised by 21 prolonged mandatory detention”). Hence, an individualized bond hearing would greatly mitigate the risk of a continued constitutional violation. 22 Finally, regarding the third Mathews factor, the government interest in detaining Petitioner without an individualized bond hearing is low. First, “[p]roviding petitioner with 23 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 24 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 25 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 26 providing a bond hearing is relatively minimal, and there is nothing in the record before this Court demonstrating that providing Petitioner with a bond hearing would be fiscally 27 or administratively burdensome.”). Therefore, the third factor minimally favors the government. Accordingly, applying the Mathews test to Petitioner’s nearly two-year 28 detention, the Court concludes that due process requires she be provided with an individualized bond hearing. 1 noncitizens held pursuant to § 1225(b), the Court accordingly elects to apply it. 2 i. Length of Detention. 3 The first Banda factor is the length of detention, “which is the most important 4 factor.” Banda, 385 F. Supp. 3d at 1118. Under the first Banda factor, where a petitioner’s 5 current detention exceeds a six-month threshold their “detentions become less and less 6 reasonable.” Haidari v. Immigr. & Customs Enf’t Field Off. Dir., No. 2:26-cv-00039-TL, 7 2026 U.S. Dist. LEXIS 56882, at *8 (W.D. Wash. Mar. 18, 2026) (quoting L.B.O.M. v. 8 Hermosillo, No. 2:25-cv-02695-GJL, 2026 U.S. Dist. LEXIS 21291, at *8 (W.D. Wash. 9 Feb. 2, 2026). As noted, Petitioner has been held in DHS custody for nearly two years, well 10 beyond the six-month threshold, and in accord with the length of confinement other courts 11 have found to be prolonged. See, e.g., Kadir v. Larose, No. 25cv1045-LL-MMP, 2025 U.S. 12 Dist. LEXIS 203614, at *13 (S.D. Cal. Oct. 15, 2025) (noting that 13 months without a 13 bond hearing is prolonged); cf. Banda, 385 F. Supp. 3d at 1118 (“Petitioner has been in 14 detention for approximately 17 months, which is a very long time.”). Accordingly, the 15 Court finds the length of Petitioner’s detention strongly favors granting relief. 16 ii. Likely Duration of Future Detention. 17 The second factor requires the Court to “consider[] how long the detention is likely 18 to continue absent judicial intervention; in other words, the anticipated duration of all 19 removal proceedings—including administrative and judicial appeals.” Banda, 385 F. Supp. 20 3d at 1119 (citation omitted). “When the alien’s removal proceedings are unlikely to end 21 soon, this suggests that continued detention without a bond hearing is unreasonable.” 22 Akmal v. Warden of Cal. City Det., No. 1:25-CV-01921-DC-DMC-HC, 2026 WL 657606, 23 at *7 (E.D. Cal. Mar. 9, 2026) (quoting German Santos v. Warden Pike Cnty. Corr. 24 Facility, 965 F.3d 203, 211 (3d Cir. 2020)). 25 While the length of future detention is uncertain, considering the government’s 26 pending appeal before the BIA, the Court finds that the likely duration of future detention 27 is sufficiently lengthy for this factor to favor Petitioner. See Kadir, 2025 U.S. Dist. LEXIS 28 203614, at *8 (“Petitioner’s future detention can last several more months or even years 1 during the adjudication of Respondents’ appeal to the BIA.”). 2 iii. Conditions of Detention. 3 The third factor requires the Court to consider the conditions of confinement. 4 Banda, 385 F. Supp. 3d at 1119. “The more that the conditions under which the [noncitizen] 5 is being held resemble penal confinement, the stronger his argument that he is entitled to a 6 bond hearing.” Id. (citation omitted). Petitioner asserts—and provides evidence to 7 support—that her continued detention has exacerbated various medical issues, for which 8 she has had difficulty obtaining treatment. (Doc. 1 at 3, 7; Doc. 1-1 at 2-20). Respondents 9 do not address these conditions. Accordingly, the Court finds that this factor favors 10 Petitioner. 11 iv. Delays in Removal Proceedings. 12 Next, the Court will analyze the “fourth and fifth [Banda] factors—both which 13 consider delays caused by the parties—together.” Maliwat v. Scott, No. 2:25-CV-00788- 14 TMC, 2025 WL 2256711, at *6 (W.D. Wash. Aug. 7, 2025). 15 The fourth factor requires the Court to consider the nature and extent of any delays 16 caused by Petitioner. “Courts should be sensitive to the possibility that dilatory tactics by 17 the removable noncitizen may serve not only to put off the final day of deportation, but 18 also to compel a determination that the noncitizen must be released because of the length 19 of his incarceration.” Banda, 385 F. Supp. 3d at 1119 (cleaned up). Here, there have been 20 no delays caused by Petitioner. Petitioner has “followed all procedures and requirements 21 set by DHS,” and has not contested any of the IJ’s orders. Consequently, this factor favors 22 Petitioner. 23 The fifth factor considers the delays in removal caused by the government. Banda, 24 385 F. Supp. 3d at 1120. “[I]f immigration officials have caused delay, it weighs in favor 25 of finding continued detention unreasonable . . . . Continued detention will also appear 26 more unreasonable when the delay in proceedings was caused by the immigration court or 27 other non-ICE government officials.” Galkin, 2026 U.S. Dist. LEXIS 46838, at *11 28 (quoting Sajous v. Decker, No. 18-CV-2447 (AJN), 2018 WL 2357266, at *10–11 1 (S.D.N.Y. May 23, 2018)). Respondents have twice appealed the IJ’s decisions granting 2 Petitioner asylum status. The Court presumes Respondents appealed these decisions 3 efficiently and in good faith and finds the fifth factor is neutral. 4 v. Likelihood of Removal. 5 The final Banda factor requires the Court to consider “the likelihood that the final 6 proceedings will culminate in a final order of removal.” Banda, 385 F. Supp. 3d at 1120 7 (citation omitted). “[W]here a noncitizen has asserted a good faith challenge to removal, 8 ‘the categorical nature of the detention will become increasingly unreasonable.’” Id. 9 (quoting Sajous, 2018 WL 2357266, at *11). Based on the current record, Petitioner has 10 twice been granted asylum, now to two different countries. Respondents offer no evidence 11 to support that their appeal will be successful. Therefore, the sixth factor favors Petitioner. 12 vi. Conclusion. 13 Because the Banda factors favor Petitioner, the Court concludes Petitioner’s 14 continued detention under § 1225(b)(2) is unreasonable. Accordingly, Petitioner is entitled 15 to relief. 16 C. Remedy. 17 Where a noncitizen’s detention under § 1225(b)(2) has become unreasonable, the 18 proper remedy is an individualized bond hearing before a neutral IJ. See Galkin, 2026 U.S. 19 Dist. LEXIS 46838, at *12 (finding that “there is no authority” supporting relief in the form 20 of immediate release, but there is authority supporting relief in the form of a bond hearing) 21 (cleaned up); see also Lopez, 631 F. Supp. 3d at 882 (“The Court finds, consistent with 22 other post-Jennings cases, that the appropriate remedy is a bond hearing before an 23 immigration judge rather than immediate release.”); Kaur v. Lyons, 2:26-cv-00217-KML, 24 at *1 (D. Ariz. Apr. 9, 2026) (adopting the magistrate judge’s recommendations for a 25 § 1225(b)(2) petitioner and granting a bond hearing). At the bond hearing, Respondents 26 bear the burden of proving that Petitioner is a danger or flight risk by clear and convincing 27 evidence. Singh v. Holder, 638 F.3d 1196, 1203–05 (9th Cir. 2011). 28 . . . . IV. Order 2 Accordingly, 3 IT IS ORDERED that Petitioner’s Petition for Writ of Habeas Corpus (Doc. 1) is 4|| GRANTED as to Petitioner’s request for a bond hearing and is DENIED as to Petitioner’s 5 || request for immediate release. 6 IT IS FURTHER ORDERED that a bond hearing shall be held within SEVEN (7) 7\| CALENDAR DAYS of this order. 8 1. The bond hearing shall comport with the procedural requirements of Singh 9 v. Holder, 638 F.3d 1196 (9th Cir. 2011). There must be a contemporaneous 10 record of the hearing, and the Government bears the burden of proving by 11 clear and convincing evidence that Petitioner is a flight risk or danger to the 12 community; or 13 2. In the alternative, the Government shall immediately release Petitioner under 14 appropriate conditions of release. 15 IT IS FURTHER ORDERED that the parties shall file a joint status report with || the Court within THREE (3) DAYS of the bond hearing. 17 IT IS FURTHER ORDERED that Petitioner’s Motion to Expedite (Doc. 8) 1s 18 || DENIED AS MOOT. 19 IT IS FURTHER ORDERED that any motion for fees and costs pursuant to 28 U.S.C. § 2412 shall be filed within 30 days of final judgment. See 5 U.S.C. § 504; 28 U.S.C. § 2412(d)(1)(B), (d)(2)(g). 22 IT IS FURTHER ORDERED that the Clerk of Court must enter judgment 23 || accordingly, and close this case. 24 Dated this 24th day of June, 2026. 25 )

27 / / John C. Hinderaker 28 _/United States District Judge

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