2:26-cv-01979•Baghdasaryan v. Noem et al
Gesamter Gesetzestext
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Shahen Baghdasaryan, Petitioner, v. Kristi Noem, et al., Respondents. No. CV-26-01979-PHX-SPL (ASB) REPORT AND RECOMMENDATION TO THE HONORABLE STEVEN P. LOGAN, UNITED STATES DISTRICT JUDGE: Pending before the Court is pro se Petitioner Shahen Baghdasaryan’s Petition for a Writ of Habeas Corpus Under 28 U.S.C. § 2241 (Immigration detention) (Doc. 1)1, filed on March 23, 2026. Petitioner is detained at Eloy Detention Center and seeks release from immigration custody or a bond hearing. (Id. at 5.) For the reasons that follow, undersigned recommends the Petition be denied in part and granted in part. I. PROCEDURAL HISTORY AND BACKGROUND The facts before this Court appear largely undisputed. (See Docs. 1, 9.) Petitioner is a citizen of Armenia who entered the United States on November 22, 2024, through the Otay Mesa, California, Port of Entry. (Doc. 9-1 at 6.) Petitioner was detained upon arrival to the United States and has remained in continuous Immigration and Customs Enforcement (“ICE”) detention as of the date of the filing of this Petition. (See Doc. 1 at 5; 1 Citation to the record indicates documents as they are displayed in the District of Arizona’s official Court electronic document filing system under Case No. CV-26-01979-PHX-SPL (ASB). Case 2:26-cv-01979-SPL Document 13 Filed 05/04/26 Page 1 of 15
- 2 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Doc. 9 at 1-2). Petitioner was classified as an “arriving alien” and was issued a Notice to Appear in immigration court with the charge as removable under Section 212(a)(7)(A)(i)(I) of the Immigration and Nationality Act (“INA”). (Doc. 9-1 at 1.) Petitioner was given a credible fear interview on January 11, 2025, and was assessed credible and as having established a credible fear of persecution. (Id. at 9.) Accordingly, Petitioner’s expedited removal procedures pursuant to INA Section 235(b)(1) were vacated due to a credible fear determination under 8 C.F.R. § 208.30. (Id. at 1.) On September 8, 2025, an Immigration Judge (“IJ”) denied Petitioner’s asylum application. (Doc. 1 at 4; Doc. 9 at 1.) Petitioner filed with the Board of Immigration Appeals (“BIA”) an appeal “from the denial of asylum/withholding/CAT and removal order” on October 5, 2025. (Doc. 1 at 4.) Petitioner requested a bond hearing and on December 11, 2025, an IJ found “‘no jurisdiction’ and therefore did not provide a custody redetermination hearing.” (Id. at 2.) Petitioner filed a form Petition in this Court on March 23, 2026, in which he contests his detention pursuant to 28 U.S.C. § 2241. (Doc. 1.) The Court previously summarized Petitioner’s arguments as follows: Petitioner alleges his unreasonably prolonged detention without an individualized bond hearing violates his due process rights. He seeks release from custody or a bond hearing. (Doc. 4 at 2.) Petitioner raises three grounds to support his Petition. (Doc. 1 at 5.) In Ground One, Petitioner asserts that his prolonged civil detention without a meaningful individualized custody hearing violates his Fifth Amendment due process rights. (Id.) In Ground Two, Petitioner alleges that his detention has become unreasonably prolonged and punitive as applied and violates the Fifth Amendment Due Process Clause. (Id.) Petitioner asserts in Ground Three: “Statutory/Regulatory unlawfulness of continued detention without access to any bond process (as applied) and/or failure to provide constitutionally adequate process.” (Id.) Because the three claims Petitioner pleads all raise the same substantive issue, i.e. that his prolonged detention violates his due process rights, undersigned will address them together. (See id.) Case 2:26-cv-01979-SPL Document 13 Filed 05/04/26 Page 2 of 15
- 3 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Respondents U.S. Department of Homeland Security (“DHS”) Secretary Markwayne Mullin; U.S. ICE Acting Director Todd Lyons; and Warden of the Eloy Detention Center Eloy Rokosky (collectively, “Respondents”)2 filed a Response to Petition for Writ of Habeas Corpus on April 16, 2026. (Doc. 9.) In their Response, Respondents argue that the Petition should be denied because Petitioner’s detention is statutorily authorized and not violative of due process. (Id. at 4-6.) Respondents argue that, as an “arriving alien,” Petitioner is properly detained under 8 U.S.C. § 1225(b)(2) and “may be detained through the completion of [his] removal proceedings without bond.” (Id. at 3.) (citing Jennings v. Rodriguez, 583 U.S. 281 (2018)). Respondents assert that Petitioner is an alien subject to the “entry fiction,” i.e. that Petitioner never actually “entered” the United States because he was detained upon presenting at the port of entry. (See id. at 4.) Respondents argue that Petitioner is not entitled to due process rights because of this “entry fiction.” (See id. at 5) (“Petitioner’s claim to procedural due process rights must fail because [he] is considered legally to have not entered the United States, even though [he] is physically present here.”).3 Finally, Respondents argue that “only Warden Eric Rokosky is a proper respondent.” (Id. at 1.)4 2 Petitioner initially named former U.S. DHS Secretary Kristi Noem; former Warden of the Eloy Detention Center Fred Figueroa; Field Office Director for ICE’s Enforcement and Removal Operations (“ERO”) Field Office John E Cantu; and Acting Director of Executive Office for Immigration Review Sirce E Owen as Respondents (see Doc. 1). Respondents Cantu and Owen were dismissed as improper Respondents pursuant to this Court’s Order on March 26, 2026. (See Doc. 4 at 2.) This Court also substituted Respondent Noem for Markwayne Mullin and Respondent Figueroa for Eric Rokosky. (See id.) 3 Respondents repeatedly, erroneously refer to Petitioner as “she.” (See Doc. 9 at 5.) And although Respondents cite to Petitioner’s “release from custody on Section 1182(d)(5) parole” and “Section 1182(d)(5) parole determinations,” there is no record before this Court of Petitioner ever being released from custody on parole. (See Docs. 1, 9.) It therefore appears to undersigned as though Respondents failed to fully update their form Response to detention challenges based on this Petitioner’s circumstances. While undersigned recognizes Respondents’ counsel face a number of these types of petitions, the duty to adequately support their legal and factual assertions remains unchanged. See Fed. R. Civ. P. 11(b). Undersigned recommends no further action but Respondents’ counsel are reminded of their obligations. 4 Respondents thus request that the Court dismiss all Respondents other than Warden Rokosky. (Doc. 9 at 2.) “[L]ongstanding practice confirms that in habeas challenges to present physical confinement-‘core challenges’-the default rule is that the proper respondent is the warden of the facility 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 further clarified this position and “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 those filed by immigrant detainees.” Doe v. Garland, 109 F.4th 1188, 1199 (9th Cir. 2024). However, other Case 2:26-cv-01979-SPL Document 13 Filed 05/04/26 Page 3 of 15
- 4 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Petitioner filed a timely5 Reply with the Court arguing that he is required to be released on parole since he has been held without a court hearing for over six months. (Doc. 12 at 1.) Petitioner further argues that because he has no criminal record and poses no danger to society, he should be released from custody. (Id. at 2.) The Petition is now fully briefed and ripe for disposition. II. ANALYSIS “The writ of habeas corpus remains available to every individual detained within the United States.” Hamdi v. Rumsfeld, 542 U.S. 507, 525 (2004) (citing U.S. Const., Art. I, § 9, cl. 2). Writ of habeas corpus relief extends to a person in federal custody if the petitioner can demonstrate he “is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241(c)(3). Accordingly, federal courts have jurisdiction to grant writs of habeas corpus to noncitizens who are being unlawfully detained under 28 U.S.C. § 2241. See Trinidad y Garcia v. Thomas, 683 F.3d 952, 956 (9th Cir. 2012) (“The writ of habeas corpus historically provides a remedy to non-citizens challenging executive detention.”) (citing INS v. St. Cyr, 533 U.S. 289, 301-303 (2001)); Lopez-Marroquin v. Barr, 955 F.3d 759, 759 (9th Cir. 2020) (“[D]istrict courts retain jurisdiction under 28 U.S.C. § 2241 to consider habeas challenges to immigration detention that are sufficiently independent of the merits of the removal order”) (citation omitted). Respondents do not dispute this Court’s jurisdiction over considering Petitioner’s prolonged detention. (See Doc. 9.) courts in this Circuit have found that Doe “did not necessarily preclude naming more than one respondent so long as the immediate custodian is named.” See, e.g., Doe v. Chestnut, 810 F. Supp. 3d 1169, 1169 n.1 (E.D. Cal. 2025); Gonzalez Elias v. Warden of the Golden State Annex Det. Facility, No. 1:26-CV-01835-JLT-EPG, 2026 WL 901288, at *1 n.1 (E.D. Cal. Apr. 2, 2026). Because Petitioner names his immediate custodian, and this Court has already dismissed improper Respondents (see Doc. 4), undersigned declines to recommend dismissal of additional Respondents. 5 Under the mailbox rule, “[w]hen a prisoner gives prison authorities a habeas petition or other pleading to mail to court, the court deems the petition constructively ‘filed’ on the date it is signed.” Roberts v. Marshall, 627 F.3d 768, 770 n.1 (9th Cir. 2010) (citing Huizar v. Carey, 273 F.3d 1220, 1223 (9th Cir. 2001)); see also Barrientos v. Lynch, 829 F.3d 1064, 1066-1068 (9th Cir. 2016) (applying the mailbox rule to immigration detainees). Petitioner, as a pro se litigant in immigration detention, can thus be said to have timely filed his Reply on April 23, 2026, prior to the deadline for reply on April 27, 2026. (See Doc. 12 at 2); see Campbell v. Henry, 614 F.3d 1056, 1058-1059 (9th Cir. 2010). Case 2:26-cv-01979-SPL Document 13 Filed 05/04/26 Page 4 of 15
- 5 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Governing the detention of “applicants for admission” is 8 U.S.C. § 1225. The statute defines “applicants for admission” as “an alien present in the United States who has not been admitted” following inspection by immigration authorities. 8 U.S.C. § 1225. “As relevant here, applicants for admission fall into one of two categories, those covered by § 1225(b)(1) and those covered by § 1225(b)(2).” Jennings, 583 U.S. at 287. Section 1225(b)(1) applies to aliens initially determined to be inadmissible due to fraud, misrepresentation, or lack of documentation, or “certain other aliens designated by the Attorney General in his discretion.” Id. “Normally, noncitizens covered by § 1225(b)(1) are subject to an expedited removal process that does not include a hearing before an IJ or review of the removal order.” See Banda v. McAleenan, 385 F. Supp. 3d 1099, 1111-1112 (W.D. Wash. 2019). If, however, a noncitizen indicates an intention to apply for asylum or a fear of persecution, the inspecting immigration officer must refer the noncitizen for a credible fear interview with an immigration officer. See 8 U.S.C. § 1225(b)(1)(A)(ii). “If the officer determines . . . that an alien has a credible fear of persecution . . . the alien shall be detained for further consideration of the application for asylum.” 8 U.S.C. § 1225(b)(1)(B)(ii). Section 1225(b)(2) is broader and “serves as a catchall provision that applies to all applicants for admission not covered by § 1225(b)(1).” Id. Respondents assert that Petitioner’s detention falls under § 1225(b)(2). (See Doc. 9.) However, the record indicates that Petitioner, as a noncitizen determined to have a credible fear of persecution, is appropriately considered under 8 U.S.C. § 1225(b)(1)(B)(ii). Pursuant to § 1225(b)(1)(B)(ii), a noncitizen “shall be detained for further consideration of the application for asylum.” Respondents argue that “Petitioner is properly detained under Section 1225(b)(2)(A), not Section 1226(a); Petitioner has no due process right to release.” (Doc. 9 at 2). It appears Respondents essentially conclude that because Petitioner is an arriving noncitizen, his detention is justified indefinitely. (See id.) Regardless of whether Petitioner is detained pursuant to § 1225(b)(1)(B)(ii) or § 1225(b)(2), several District Judges of this District have rejected indefinite detention under § 1225(b) without undertaking a due process analysis. See Avakian v. Cantu, No. CV-26-00104-PHX-SHD, Case 2:26-cv-01979-SPL Document 13 Filed 05/04/26 Page 5 of 15
- 6 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2026 WL 746351, at *2 (D. Ariz. Mar. 17, 2026) (rejecting respondents’ reliance on § 1225(b) and Jennings without addressing any constitutional considerations); see also Kaur v. Lyons, No. CV-26-00217-PHX-KML (ASB), 2026 WL 967846, at *3-4 (D. Ariz. Mar. 24, 2026), report and recommendation adopted, 2026 WL 963792 (D. Ariz. Apr. 9, 2026) (adopting the recommendation that considered petitioner’s due process rights despite being detained pursuant to § 1225(b)(2)); but see Mamedova v. Noem, No. CV-25-04619, 2026 WL 1162282, at *2-3 (D. Ariz. Apr. 29, 2026) (concluding that “an arriving alien subject to statutorily mandated detention under §§ 1225(b)(1) or 1225(b)(2) does not have a constitutional right to a bond hearing.”). Accordingly, undersigned assumes the analysis does not end there and addresses Petitioner’s due process rights. A. Entitlement to Due Process Claim The Due Process Clause of the Fifth Amendment to the United States Constitution provides that “No person shall be . . . deprived of life, liberty, or property, without due process of law.” U.S. Const. Amend. V. “It is well established that the Fifth Amendment entitles aliens to due process of law in deportation proceedings.” Reno v. Flores, 507 U.S. 292, 306 (1993). Beginning with that fundamental principle, undersigned will now briefly address the ever-developing body of caselaw addressing the extent due process is available to immigrants detained pursuant to § 1225(b). See Rodriguez v. Robbins (“Rodriguez III”), 804 F.3d 1060, 1067 (9th Cir. 2015), rev’d sub nom. Jennings v. Rodriguez, 583 U.S. at 287 (“[I]n a series of decisions since 2001, the Supreme Court and [Ninth Circuit] have grappled in piece-meal fashion with whether the various immigration detention statutes may authorize indefinite or prolonged detention of detainees and, if so, may do so without providing a bond hearing.”)6 The Supreme Court addressed whether applicants for admission into the United States are afforded due process rights in Department of Homeland Security v. Thuraissigiam, 591 U.S. 103 (2020). In Thuraissigiam, the Supreme Court rejected an 6 See Ibarra-Perez v. Howard, 468 F. Supp. 3d 1156, 1173-1176 (D. Ariz. 2020) for a comprehensive discussion of the background law and series of cases decided by the Ninth Circuit and Supreme Court. Case 2:26-cv-01979-SPL Document 13 Filed 05/04/26 Page 6 of 15
- 7 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 arriving noncitizen’s due process rights, finding that “an alien in respondent’s position has only those rights regarding admission that Congress has provided by statute.” Id. at 140. In interpreting and applying Thuraissigiam to petitioners like Baghdasaryan, who challenge detention rather than admission, district courts have taken essentially two different approaches. See Sadeqi v. LaRose, 809 F. Supp. 3d 1090, 1093 (S.D. Cal. 2025) (outlining the two ways district courts have applied Thuraissigiam to detention challenges). Some district courts have denied or dismissed habeas petitions outright for noncitizens challenging detention on due process grounds. See, e.g., Chavez v. Noem, --- F.Supp.3d ---, No. CV-26-00323-PHX-MTL-JFM, 2026 WL 381618, at *3 (D. Ariz. Feb. 9, 2026) (“These procedures represent the due process as provided by Congress in statute. Petitioner is entitled to nothing further under the Constitution.”) (denying petitioner’s § 2241 petition where petitioner “had been unlawfully present in the United States” since 2022); Ibarra-Perez, 468 F. Supp. 3d at 1177 (discussing the Rodriquez progeny and finding under the current Ninth Circuit precedent “it is constitutionally permissible to require Petitioner to remain in custody for the duration of his removal proceeding”); Petgrave v. Aleman, 529 F. Supp. 3d 665, 679 (S.D. Tex. 2021) (“As far as [p]etitioner is concerned, whatever procedure Congress has authorized is sufficient due process.”). The majority of district courts in the Ninth Circuit have utilized a more “case- specific,” or “as-applied,” approach to due process challenges from noncitizens disputing their prolonged detention in habeas corpus matters. See Banda, 385 F. Supp. 3d at 1117 (“[T]he Court joins the vast majority of other district courts to conclude that unreasonably prolonged detention under § 1225(b) without a bond hearing violates due process.”); Gomez v. Doe, No. CV 25-03255-PHX-JJT-CDB, 2025 WL 3269886, at *11 (D. Ariz. Nov. 3, 2025) (holding that “[t]he Fifth Amendment’s Due Process Clause extends to all persons, regardless of status” and applying a balancing test to determine what procedural safeguards apply to a noncitizen challenging his detention under § 1225(b)(2)(A) pursuant to § 2241), report and recommendation adopted sub nom. Gomez v. Unknown Party, 2025 WL 3269055 (D. Ariz. Nov. 24, 2025); Avakian v. Cantu, 2026 WL 746351, at *2 Case 2:26-cv-01979-SPL Document 13 Filed 05/04/26 Page 7 of 15
- 8 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (applying due process considerations to petitioner’s prolonged detention under § 1225(b)); Cong v. Noem, No. 25-CV-3730-GPC-DEB, 2026 WL 76566, at *3 (S.D. Cal. Jan. 9, 2026) (“[M]ost courts have opted for an alternative, as-applied approach [in considering Thuraissigiam].”) (collecting cases from the Ninth Circuit); Sadeqi, 809 F. Supp. 3d at 1093 (“This [c]ourt agrees with the majority position that a petitioner detained under Section 1225(b)(1) may assert a due process challenge to prolonged mandatory detention without a bond hearing.”) (recognizing the distinction in applying Thuraissigiam between an arriving alien’s due process rights to admission, circumscribed in Thuraissigiam, rather than limiting a petitioner’s ability to challenge their detention) (collecting cases). Moreover, the Ninth Circuit expressed in the most recent Rodriguez decision, following remand from the Supreme Court in Jennings v. Rodriguez7, that “[w]e have grave doubts that any statute that allows for arbitrary prolonged detention without any process is constitutional or that those who founded our democracy precisely to protect against the government’s arbitrary deprivation of liberty would have thought so.” Rodriguez v. Marin, 909 F.3d 252, 256 (9th Cir. 2018). Undersigned recommends that the Court join the majority of courts in this Circuit in holding that a prolonged detention under § 1225(b) may eventually give rise to due process issues. See Cantu, 2026 WL 746351, at *2 (rejecting respondents’ objections that an arriving noncitizen may be detained through the completion of their removal proceedings, finding that the Supreme Court did not reach the constitutional analysis in its decision in Jennings and therefore did not preclude whether the denial of a bond hearing under § 1225(b) could violate the Due Process Clause). However, undersigned recognizes that there is the above-referenced split even within this District and ultimately, undersigned defers to the assigned District Judge on the issue. A. Banda Test (Whether Petitioner’s Detention Has Become Unreasonable) Courts apply a multifactor test to determine whether § 1225(b) detention has become unreasonable and therefore violative of due process. See Banda, 385 F. Supp. 3d 7 583 U.S. at 281. Case 2:26-cv-01979-SPL Document 13 Filed 05/04/26 Page 8 of 15
- 9 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 at 1118. While courts differ slightly on the test applied, they are substantively the same – balancing petitioner’s interest, government interest, and fault on either party. See Baishymyrov v. Warden of Golden State Annex Det. Facility, No. 1:25-CV-01658-DMC- HC, 2026 WL 145644, at *6-9 (E.D. Cal. Jan. 20, 2026) (applying the Lopez8 test to determining the reasonableness of a § 1225(b) detention); Henriquez v. Garland, No. 5:22- CV-00869-EJD, 2022 WL 2132919, at *5 (N.D. Cal. June 14, 2022) (applying the Matthews v. Elridge9 test to assess whether prolonged detention has violated due process in 8 U.S.C. § 1226(c) context); Yacoub v. Scott, No. 2:26-CV-00783-TL, 2026 WL 1107805, at *3 (W.D. Wash. Apr. 23, 2026) (applying the Banda test to assess prolonged detention of noncitizen detained pursuant to § 1225(b)(1)(B)(ii)). Undersigned will apply the Banda test based on recent Report and Recommendation adoptions to come out of this District, but similarly notes that “[u]nder either test, Petitioner is entitled to a bond hearing.” See Avakian v. Rokosky, No. CV-26-00104-PHX-SHD, slip op. at 21 (D. Ariz. Feb. 24, 2026), report and recommendation adopted sub nom. Avakian v. Cantu, 2026 WL 746351 (D. Ariz. Mar. 17, 2026); see also Kaur, 2026 WL 963792, at *1 (adopting the recommendation that applied Banda to assess petitioner’s due process rights). Under Banda, courts will balance the following factors: “(1) the total length of detention to date; (2) the likely duration of future detention; (3) the conditions of detention; (4) delays in the removal proceedings caused by the detainee; (5) delays in the removal proceedings caused by the government; and (6) the likelihood that the removal proceedings will result in a final order of removal.” 385 F. Supp. 3d at 1118 (quoting Jamal v. Whitaker, 358 F. Supp. 3d 853, 859 (D. Minn. 2019)). 8 “To determine whether § 1226(c) detention has become unreasonable, 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 by the petitioner and the government.” Lopez v. Garland, 631 F. Supp. 3d 870, 879 (E.D. Cal. 2022). 9 “[O]ur prior decisions indicate that identification of the specific dictates of due process generally requires consideration of three distinct factors: First, the private interest that 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 substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.” Mathews v. Eldridge, 424 U.S. 319, 334-335 (1976). Case 2:26-cv-01979-SPL Document 13 Filed 05/04/26 Page 9 of 15
- 10 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Regarding the first factor, total length of detention, Petitioner has been in ICE detention since he arrived in the United States on November 22, 2024. (Doc. 1 at 4). Thus, Petitioner has been detained for at least seventeen months as of the date of this Report and Recommendation. (See id.) Federal courts have found that prolonged detention in a similar (and shorter) range of time leans towards granting a bond hearing. See Lopez, 631 F. Supp. 3d at 879 (“Petitioner has been in immigration detention . . . approximately one year. District courts have found shorter lengths of detention pursuant to § 1226(c) without a bond hearing to be unreasonable.”); Amado v. United States Dep’t of Just., No. 25-CV-2687-LL- DDL, 2025 WL 3079052, at *5 (S.D. Cal. Nov. 4, 2025) (“Courts have found detention over seven months without a bond hearing weighs toward a finding that it is unreasonable.”); Gonzalez v. Bonnar, No. 18-CV-05321-JSC, 2019 WL 330906, at *3 (N.D. Cal. Jan. 25, 2019) (“As detention continues past a year, courts become extremely wary of permitting continued custody absent a bond hearing.”) (internal citations omitted). Accordingly, Petitioner’s over seventeen-month detention weighs towards granting a bond hearing. The second factor, likely duration of future detention, also weighs towards Petitioner’s position. On September 8, 2025, an Immigration Judge denied Petitioner’s asylum applications. (See Doc. 9 at 1.) Petitioner appealed that decision on October 5, 2025, and that appeal is pending before the BIA. (See Doc. 1 at 4.) Courts have found that pending administrative and possible Ninth Circuit appeals can be “sufficiently lengthy” such that it favors Petitioner’s ability to be heard. See Abdul-Samed v. Warden of Golden State Annex Det. Facility, No. 1:25-CV-00098-SAB-HC, 2025 WL 2099343, at *7 (E.D. Cal. July 25, 2025) (citing German Santos v. Warden Pike Cnty. Corr. Facility, 965 F.3d 203, 211 (3d Cir. 2020)); see also Banda, 385 F. Supp. 3d at 1119 (“Petitioner only recently filed his appeal of the IJ’s removal order with the BIA. If the BIA affirms, petitioner will have the opportunity to seek review in the Ninth Circuit. This process may take up to two years or longer.”) (citing Jamal, 358 F. Supp. 3d 853, at 859); see also Arechiga v. Archambeault, No. 2:23-CV-00600-CDS-VCF, 2023 WL 5207589, at *4 (D. Nev. Aug. Case 2:26-cv-01979-SPL Document 13 Filed 05/04/26 Page 10 of 15
- 11 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11, 2023) (“It is anyone’s guess how long it will take the BIA to reconsider [the] petition . . . or how long subsequent appeals of that decision might take.”) Based on the record before this Court, it appears that Petitioner could face many more months or years of pending appeals. See Banda, 385 F. Supp. 3d at 1119. Accordingly, the potential length of detention during Petitioner’s administrative and possible Ninth Circuit appeals process weighs towards granting Petitioner a bond hearing. In the third factor, the Court considers the conditions of detention where the petitioner is detained. “The more that the conditions under which the noncitizen is being held resemble penal confinement, the stronger his argument that he is entitled to a bond hearing.” Banda, 385 F. Supp. 3d at 1119 (quoting Jamal, 358 F. Supp. 3d at 860). Here, the parties agree Petitioner is confined at the Eloy Detention Center in Arizona. (See Docs. 1, 9.) This Court has previously recognized that Eloy Detention Center is a CoreCivic immigration detention facility “opened in 1994 and . . . designed to imprison people in criminal custody.” See Rosado v. Figueroa, No. CV 25-02157-PHX-DLR (CDB), 2025 WL 2337099, at *13 (D. Ariz. Aug. 11, 2025), report and recommendation adopted, 2025 WL 2349133 (D. Ariz. Aug. 13, 2025). The facility “has since evolved into an ICE detention facility.” Id. (finding that the conditions of Eloy Detention Center favored Petitioner’s private interest to liberty and that courts consider “whether a detainee is held in conditions indistinguishable from criminal incarceration.”) Petitioner’s form Petition contains no description of Petitioner’s specific hardships faced or other conditions at Eloy Detention Center. (See Doc. 1). The Petition does allege that “[c]ivil immigration detention is not punishment, but [Petitioner has] been confined for a prolonged period without the basic safeguard of a neutral custody hearing.” (Id. at 5.) While the Petition lacks specific descriptors on the conditions he faces at Eloy Detention Center, this Court’s prior finding that Eloy “was designed to imprison people” and that the conditions were “indistinguishable from criminal incarceration” favor granting a bond hearing. See Rosado, 2025 WL 2337099, at *13. In the fourth and fifth factors, the Court considers delays in the removal proceedings Case 2:26-cv-01979-SPL Document 13 Filed 05/04/26 Page 11 of 15
- 12 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 caused by the detainee or the government. Here, the factors are likely neutral as applied to Petitioner, because there is no evidence in the record that either Petitioner or Respondents have caused any delay in the removal proceedings. (See Docs. 1, 9.) Under the sixth factor, the Court looks at the likelihood that the removal proceedings will result in a final order of removal. Undersigned finds this factor is also neutral. See Banda, 385 F. Supp. 3d at 1118. While this Court cannot presume what the BIA or Ninth Circuit may decide on Petitioner’s asylum claim, the record before this Court appears to indicate Petitioner has at least a viable case to plead. (See Doc. 9-1 at 9) (Petitioner’s credible fear interview where the officer found Petitioner credible and that Petitioner had established a “credible fear of persecution”); (see also Doc. 9-1 at 13-27) (Petitioner’s testimony regarding his past harm in Armenia and well-founded fear of returning). Undersigned finally makes note of similarly situated petitioners. Based on the record before this Court, Petitioner arrived at the United States Port of Entry in Otay Mesa, California and immediately surrendered himself to border officials. (See Doc. 9-1 at 15.) When asked why Petitioner did not wait to enter the United States when the suspension and limitation on entry was not in effect, Petitioner explained that he “registered with the CBP but [he] couldn’t wait anymore, so [he] decided to enter earlier.” (Id. at 19.) In similar scenarios, courts appear to take into consideration when petitioners enter the United States as an “arriving” noncitizen consistently claiming asylum when determining whether to grant a bond hearing. See Avakian v. Rokosky, slip op. at 18 (“Logically, if due process affords criminal aliens under orders of removal a bond hearing if their detention becomes ‘unreasonable,’ notwithstanding that their detention is mandatory, then non-criminal aliens should also be afforded this due process protection.”); see also Sufiiarov v. Warden, Otay Mesa Det. Ctr., No. 25-CV-3265-LL-DDL, 2026 WL 26079, at *1, 5 (S.D. Cal. Jan. 5, 2026) (granting bond hearing to petitioner who arrived to the United States through an appointment seeking asylum); Sadeqi, 809 F. Supp. 3d at 1093 (granting bond hearing to petitioner who arrived to the United States via port of entry and immediately claimed asylum); c.f. Chavez v. Noem, 2026 WL 381618, at *3 (“[A] person who entered the United Case 2:26-cv-01979-SPL Document 13 Filed 05/04/26 Page 12 of 15
- 13 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 States illegally and is clearly and beyond a doubt not entitled to admission, is subject to mandatory detention”) (denying a bond hearing for petitioner detained pursuant to § 1225(b)(2)(A) in part because they had been “unlawfully present in the United States” for almost three years prior to detention). With three factors weighing in Petitioner’s favor and three factors neutral, undersigned recommends that the District Judge find that Petitioner’s continued detention has become unreasonable and due process requires that Petitioner be provided with a bond hearing. See Rodriguez v. Marin, 909 F.3d at 256 (expressing “grave doubts” that prolonged detention could not raise constitutional concerns). B. Bautista10 applicability Undersigned recognizes that this Court has in the past considered 8 U.S.C. § 1225(b) detention and bond eligibility pursuant to the Central District of California’s decision in Bautista and its progeny. See, e.g., Vargas v. Credio, No. 26-CV-02274-PHX-SPL (JZB), slip op. at 1-2 (D. Ariz. Apr. 8, 2026). In Bautista, the Central District of California declared the Bond Eligible Class members not subject to mandatory detention under § 1225(b)(2). Bautista, 2025 WL 3678485, at *1. Bond Eligible Class members are defined as: All noncitizens in the United States without lawful status who (1) have entered or will enter the United States without inspection; (2) were not or will not be apprehended upon arrival; and (3) are not or will not be subject to detention under 8 U.S.C. § 1226(c), § 1225(b)(1), or § 1231 at the time the Department of Homeland Security makes an initial custody determination. Bautista v. Santacruz, 813 F. Supp. 3d 1075, 1077-1078 (C.D. Cal. 2025).While the Ninth Circuit stayed the district court’s class certification and final judgment “insofar as they extend beyond the Central District of California,” see Bautista v. U.S. Dep’t of Homeland Sec., No. 25-7958 (9th Cir. Mar. 31, 2026), this Court has recognized that “the stay did not alter the impact of the declaratory judgment within the Central District of California, nor does it affect the Court’s independent determination that Petitioner is entitled to relief in 10 Bautista v. Noem, No. 5:25-CV-01873-SSS-BFM, 2025 WL 3678485, at *1 (C.D. Cal. Dec. 18, 2025). Case 2:26-cv-01979-SPL Document 13 Filed 05/04/26 Page 13 of 15
- 14 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the form of release or a bond hearing.” See Vargas, slip op. at 1-2. However, in the instant case it appears Petitioner would not be a member of the bond-eligible class as a § 1225(b)(1)(A)(ii) noncitizen detainee. Accordingly, should the Court disagree with the above due process analysis, Petitioner does not appear to be eligible for bond on Bautista grounds. III. CONCLUSION AND REMEDY Based on the above, undersigned recommends this Court grant Petitioner’s request for a bond hearing. In addition to a bond hearing, Petitioner requests immediate release from detention. (See Doc. 1.) Courts in this Circuit have found in situations similar to Petitioner’s that a bond hearing, rather than immediate release, is the appropriate remedy. See Lopez, 631 F. Supp. 3d at 882-883 (“The [c]ourt finds, consistent with other post- Jennings cases, that the appropriate remedy is a bond hearing before an immigration judge rather than immediate release.”) (collecting cases). Thus, undersigned recommends the Petition (Doc. 1) be granted in part (insofar as a bond hearing is granted) and denied in part (denying other requested relief). RECOMMENDATION Based on the foregoing, IT IS THEREFORE RECOMMENDED that the Petition for a Writ of Habeas Corpus Under to 28 U.S.C. § 2241 (Immigration detention) (Doc. 1) be granted in part and denied in part as follows: 1. Undersigned recommends that the Court grant Petitioner’s request for a bond hearing and order that, within thirty (30) days of the date his Petition being granted, Petitioner be afforded a bond hearing before a neutral adjudicator at which hearing the government must bear the burden of showing that Petitioner should not be released on bond because he is a flight risk or a danger to the community; and 2. It is recommended all other forms of relief in the Petition, including an order directing Petitioner’s immediate release, be denied. Case 2:26-cv-01979-SPL Document 13 Filed 05/04/26 Page 14 of 15
- 15 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 EFFECT OF RECOMMENDATION This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court’s judgment. The parties shall have 14 days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(b) and 72. Thereafter, the parties have 14 days within which to file a response to the objections. Failure to timely file objections to the Magistrate Judge’s Report and 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 timely file objections to any factual determinations of the Magistrate Judge will be considered a waiver of a party’s right to appellate review of the findings of fact in an order of judgment entered pursuant to the Magistrate Judge’s recommendation. See Fed. R. Civ. P. 72. Dated this 4th day of May, 2026. Case 2:26-cv-01979-SPL Document 13 Filed 05/04/26 Page 15 of 15
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