Riazhskikh v. Unknown Party et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Pavel Riazhskikh,
Petitioner,
v.
Unknown Party, et al.,
Respondents.
No. CV-26-02003-PHX-KML (ASB)
REPORT AND RECOMMENDATION
TO THE HONORABLE KRISSA M. LANHAM, UNITED STATES DISTRICT
JUDGE:
Ripe for disposition are Pro se Petitioner Pavel Riazhskikh’s (1) Petition for Writ of
Habeas Corpus Pursuant (Doc. 1) 1 and (2) Petitioner’s Motion for Leave to Amend Petition
and to Join Spouse as Co-Petitioner (Doc. 13). Petitioner is detained at San Luis Regional
Detention Center and seeks immediate release from immigration custody or a bond hearing
before an Immigration Judge. (Doc. 1 at 1.) Petitioner also seeks leave from this Court to
amend his Petition and join his spouse, Elmira Dzhamalova, as a co-petitioner. (Doc. 13.)
For the reasons that follow, undersigned recommends that the Motion for Leave to Amend
and to Join Spouse be denied, and the Petition be denied in part and granted in part.
I. Procedural History and Background
Petitioner and Respondents appear to agree on the facts before the Court. (See Docs.
1, 8, 12.) Petitioner is a citizen of Russia who “presented himself at the [United States]
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-26-02003-PHX-KML (ASB).
Case 2:26-cv-02003-KML Document 15 Filed 05/19/26 Page 1 of 18

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border through CBP One scheduling” on January 13, 2025, through the San Ysidro,
California port of entry. (Doc. 1 at 4; Doc. 8 at 2.) Petitioner was first detained in “Otay
Mesa, San Diego” and was transferred to the San Luis Regional Detention Facility in
Arizona in June 2025. (Doc. 1 at 4.) Petitioner has remained in Department of Homeland
Security (“DHS”) detention since January 16, 2025. (Id.) 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. 8-1 at 5-8.) Petitioner was given a Notice of Rights in Accordance with the
Cancino Castellar Settlement Agreement, written in both English and Russian, advising
Petitioner of his right to a prompt first appearance in immigration court and that he “will
remain in custody for [his] removal proceedings.” (Id. at 9.) On January 14, 2025,
Petitioner was given a Notice of Custody Determination where DHS determined that,
pending final administrative detention, Petitioner would be detained by DHS. (Id. at 10.)
Petitioner’s request for a custody determination under 8 C.F.R. § 1236 was denied on
January 31, 2025 because the immigration court determined it lacked jurisdiction pursuant
to INA Section 235(b)(2)(A). (Doc. 1 at 24.) On October 25, 2025, an immigration judge
(“IJ”) found Petitioner inadmissible pursuant to Section 212(a)(7)(A)(i)(I) of the INA.
(Doc. 8-1 at 15.) The IJ also denied Petitioner’s application for asylum, withholding of
removal under the INA § 241(b)(3), and withholding of removal under the Convention
Against Torture. (Id.) Petitioner appealed the IJ decision to the Board of Immigration
Appeals (“BIA”) on November 25, 2025. (Id. at 19-21.)
In his Petition filed in this Court on March 23, 2026, Petitioner contests his detention
pursuant to 28 U.S.C. § 2241. (Doc. 1.) The single ground raised in the Petition is that
Petitioner’s detention violates the Due Process Clause of the Fifth Amendment of the U.S.
Constitution. (Id. at 10-11.) Petitioner requests that this Court grant order his release from
custody or, in the alternative, require Respondents to provide Petitioner a bond hearing.
(Id.) Petitioner argues that detention that exceeds six months without a bond hearing is
unconstitutional, and even without a bright-line six-month standard, an individualized bond
hearing is required when detention has become unreasonably prolonged. (Id. at 5-6.)
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Petitioner avers that his detention has become “unreasonably prolonged” pursuant to the
Mathews v. Eldridge test. (See id. at 8) (citing 424 U.S. 319, 335 (1976)). Petitioner
attaches to his Petition his immigration records, a letter of support, and a letter from a
community housing shelter in Austin, Texas agreeing to receive Petitioner. (See Doc. 1 at
13-25.)
Respondents2 David Rivas, Warden of the San Luis Regional Detention Center;
Todd Lyons, Acting Director of U.S. Immigration and Customs Enforcement (“ICE”);
Markwayne Mullin, Secretary of the Department of Homeland Security; and Pamela
Bondi, Attorney General of the United States, filed a Response to Order to Show Cause
and Petition for Writ of Habeas Corpus on April 20, 2026 (Doc. 8). 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 3-6.) Respondents argue that,
as an “arriving alien,” Petitioner is properly detained under 8 U.S.C. § 1225(b)(2)(A) and
“may be detained through the completion of [his] removal proceedings without bond.” (Id.
at 4.) (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 5.) Respondents argue that Petitioner is not entitled to due process rights because
of this “entry fiction.” (See id. at 5.) Respondents further assert that even if Petitioner had
a protected liberty interest, he would still not be entitled a bond hearing because the
Mathews test favors the government. (See id. at 6-7 (citing 424 U.S. at 335).)
Petitioner filed a timely Reply to Respondents’ Answer on April 30, 2026. (Doc.
12.) In his Reply, Petitioner argues that the “entry fiction” doctrine does not eliminate due
process protections against prolonged detention. (Id. at 3.) Petitioner further argues that,
while initial detention may be statutorily authorized, continued detention must remain
2 Pursuant to this Court’s Order on March 26, 2026, “Immigration and Customs Enforcement
Phoenix Field Office Director” was dismissed as an improper Respondent. (Doc. 3.) The Court
also substituted David Rivas for “Respondent Warden of the San Luis Regional Detention Center,”
Todd Lyons for “Respondent Director of Immigration and Customs Enforcement,” Markwayne
Mullin as “Respondent for the Secretary of the United States Department of Homeland Security,”
and Pamela Bondi as “Respondent for the United States Attorney General.” (Id. at 2.)
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constitutionally justified. (Id. at 4.) Petitioner argues that, pursuant to Mathews, his
detention has become constitutionally prolonged. (Id. at 5 (citing 424 U.S. at 335).)
Petitioner thus requests that the Court provide him “a prompt individualized custody
hearing before a neutral adjudicator.” (Id.)
On the same day Petitioner filed his Reply, he filed a Motion for Leave to Amend
Petition and to Join Spouse as Co-Petitioner. (Doc. 13 at 2.) Petitioner requests leave to
amend his Petition to add his spouse, Elmira Dzhamalova, as a co-petitioner pursuant to
Fed. R. Civ. P. 20(a)(1). (Id. at 3.) Petitioner argues that both he and Ms. Dzhamalova have
been in ICE custody for the same amount of time, both without an individualized bond
hearing, and both are detained at San Luis Regional Detention Center. (Id.) Petitioner
argues that “because the claims arise from identical operative facts, identical legal theories,
and identical detention conditions, joinder is proper. Moreover, amendment will promote
judicial economy and cause no prejudice to Respondents.” (Id.) Petitioner further contends
that leave to amend is proper in this circumstance, pursuant to Fed. R. Civ. P. 15(a)(2),
because there is no undue delay, bad faith, dilatory motive, or futility. (Id. at 5.) Petitioner
also asserts that “allowing joinder will conserve judicial resources and avoid duplicative
litigation.” (Id.) Respondents did not file a response to the Motion.
Undersigned will first address Petitioner’s Motion for Leave to Amend Petition and
Join Spouse (Doc. 13) and will then turn to Petitioner’s Writ for Habeas Corpus (Doc. 1).
II. Motion for Leave to Amend Petition and to Join Spouse as Co-Petitioner
Petitioner moves this Court for leave to amend his Petition and join his spouse, Ms.
Dzhamalova. (Doc. 13 at 3.) “When a party seeks to join additional parties to an action, the
party must seek leave to amend the complaint and has the burden of meeting the
requirements of both Federal Rule of Civil Procedure 15 and Federal Rule of Civil
Procedure 20.” Puget Soundkeeper All. v. APM Terminals Tacoma LLC, 545 F. Supp. 3d
893, 895 (W.D. Wash. 2021) (citing Nelson v. Adams USA, Inc., 529 U.S. 460, 465–66,
(2000)).
Under Rule 15 of the Federal Rules of Civil Procedure leave to amend shall be freely
given “when justice so requires.” Fed. R. Civ. P. 15. However, Rule 15 is construed less
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liberally when new parties are proposed. See Union Pac. R. Co. v. Nevada Power Co., 950
F.2d 1429 (9th Cir. 1991) (“We differentiate between pleadings attempting to amend
claims from those seeking to amend parties.”) (emphasis in original) (citing Martell v.
Trilogy Ltd., 872 F.2d 322, 325 (9th Cir. 1989)). A court may deny leave to amend after a
responsive pleading is filed if it finds undue delay, bad faith, repeated failures to cure
deficiencies, undue prejudice to the opposing party, or futility of amendment. Foman v.
Davis, 371 U.S. 178, 182 (1962).
Under Rule 20(a)(1) of the Federal Rules of Civil Procedure, parties may join in one
action as plaintiffs if (A) they assert any right to relief jointly, severally, or in the alternative
with respect to or arising out of the same transaction, occurrence, or series of transactions
or occurrences; and (B) any question of law or fact common to all plaintiffs will arise in
the action. “Even once these requirements are met, a district court must examine whether
permissive joinder would ‘comport with the principles of fundamental fairness’ or would
result in prejudice to either side.” Coleman v. Quaker Oats Co., 232 F.3d 1271, 1296 (9th
Cir. 2000) (quoting Desert Empire Bank v. Insurance Co. of N. Am., 623 F.2d 1371, 1375
(9th Cir. 1980)). “Rule 20 is designed to promote judicial economy, and reduce
inconvenience, delay, and added expense.” Coughlin v. Rogers, 130 F.3d 1348, 1351 (9th
Cir. 1997) (citation omitted). District courts retain broad discretion in applying and
considering Rule 20. See Coleman, 232 F.3d at 1296-1297.
When considering Rule 20 in the habeas context, district courts have varied in their
approach. “The Habeas Rules do not specifically address whether individuals may jointly
file a habeas petition.” Hernandez v. Janecka, No. 5:26-CV-00710-MBK, 2026 WL
734524, at *4 (C.D. Cal. Mar. 4, 2026). Some courts have found that “there is no authority
for permitting multiple petitioners to file a single habeas petition . . . and doing so generally
is not permitted.” See Acord v. California, No. 1-17-CV-01089-MJS-HC, 2018 WL
347770, at *1 (E.D. Cal. Jan. 10, 2018) (recommending dismissal of multiple petitioners
in 28 U.S.C. § 2254 context and collecting cases). Other courts have held that “given the
extremely high volume of immigration habeas cases in this District and the similarity of
issues in hundreds of cases, judicial economy weighs heavily in favor of permitting
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similarly situated petitioners to join in a single action when respondents do not point to any
relevant factual or legal distinctions between the petitioners’ claims.” See Singh v. Warden
of Golden State Annex Det. Facility, No. 1:26-CV-00353-KES-EPG (HC), 2026 WL
388738, at *1-2 (E.D. Cal. Feb. 11, 2026) (denying respondents’ motion to sever and to
dismiss for improper joinder and finding multiple petitioners was supported by the factual
circumstances).
Here, Petitioner requests that the Court allow joinder because “both Petitioners’
claims arise from the same transaction or occurrence.” (Doc. 13 at 4.) Petitioner argues that
“the judicial economy strongly favors joinder” and “allowing joinder will conserve judicial
resources and avoid duplicative litigation.” (Id. at 5.) Respondents did not file a response
or otherwise dispute Petitioner’s request.3 However, the Court, in its discretion, must
consider the merits of the Motion. See Coleman, 232 F.3d at 1296-1297.
First, the Court considers the factual basis and questions of law at issue pursuant to
Rule 20. See Desert Empire Bank v. Ins. Co. of N. Am., 623 F.2d 1371, 1375-1376 (9th Cir.
1980) (upholding the district court’s grant of leave to amend to add a permissive party by
finding the Rule 20 requirements had been met). Petitioner argues that the facts and legal
issues applicable between himself and his spouse, Ms. Dzhamalova, favor joinder because
the claims arise from the same transaction or occurrence. (Doc. 13 at 4-5.) Based on the
facts before this Court, it appears that both Petitioner and his spouse arrived at the U.S.
port of entry at the same time and are both being held in the same detention facility. (See
id.) This is likely sufficient factual similarity to favor joinder. See Camayo v. Warden Mesa
Verde Det. Ctr., No. 1:26-CV-02150-DAD-DMC, 2026 WL 799999, at *2 (E.D. Cal. Mar.
23, 2026) (denying respondents’ motion to sever finding “petitioners assert the same legal
claims and allege common facts that they entered the United States on the same day without
inspection and were detained by immigration authorities together while on their way to
work.”).
3 Accordingly, the Court could construe the non-reply as consent to the motion. See LRCiv
7.2(i) (“[N]on-compliance [with responsive memorandum requirements] may be deemed a consent
to the denial or granting of the motion and the Court may dispose of the motion summarily.”)
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The Court next turns to whether joinder would promote judicial economy and would
“comport with the principles of fundamental fairness or would result in prejudice to either
side.” See Coleman, 232 F.3d at 1296 (internal citations omitted). Here, the Petition has
already been fully briefed and is ripe for adjudication. Respondents have filed a Response
to the Petition (Doc. 8), and the Petitioner has filed a Reply (Doc. 12). Accordingly,
allowing joinder would in fact make the present litigation less efficient, as it would require
the parties to file updated briefs to the Court. Additionally, Petitioner argues that absent
joinder there is risk of “inconsistent outcomes and unnecessary duplication of judicial
effort.”4 (Doc. 13.) While this may be true, and may have favored joinder at the outset, the
Court cannot ignore the posture of this case. See Buriev v. Warden, Geo, Broward
Transitional Ctr., No. 25-CV-60459, 2025 WL 1906626, at *2 (S.D. Fla. Mar. 18, 2025)
(denying joinder because the petitioners were proceeding “along two very different
timelines” and one petition was nearly ripe for adjudication while the other was just filed).
Given the resources already expended by Respondents to file a Response to the Petition,
and the posture of the case, undersigned concludes that joinder would not promote judicial
economy nor comport with the principles of fundamental fairness. See Coleman, 232 F.3d
at 1296. Because Petitioner has not satisfied Rule 20, undersigned will recommend that
leave to amend be denied. See Puget Soundkeeper All., 545 F. Supp. 3d at 895. Having
determined no amendment is warranted, undersigned will now turn to the merits of the
fully briefed Petition before the Court.5
III. Writ of Habeas Corpus Petition
A. 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
4 The Court is aware that “Elmira Dzhamalova” is a petitioner in three § 2241 cases where
the petition was dismissed (2:26-CV-02552-MTL-MTM; 2:26-CV-01828-MTL-MTM; 2:26-CV-
01269-MTL-MTM) and one pending § 2241 case (2:26-CV-03406-MTL-MTM) in this District.
5 If, alternatively, the District Judge determines leave to amend should be granted, the
remainder of this Report and Recommendation would be revisited at a later date.
Case 2:26-cv-02003-KML Document 15 Filed 05/19/26 Page 7 of 18

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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. 8.)
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. 8
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at 3.) However, the record is unclear as to which statutory scheme Petitioner’s detention
falls under. While Petitioner was initially placed in expedited removal proceedings, he was
interviewed by CBP officers the day after he was detained and he claimed asylum. (Doc. 8
at 2.) At the conclusion of Petitioner’s interview, CBP determined Petitioner was
inadmissible because he lacked proper entry documentation. (Id.) Because Petitioner
claimed asylum, he would have been statutorily required to be afforded a credible fear
interview pursuant to § 1225(b)(1)(A). However, there is no evidence in the record before
this Court that Petitioner was given a credible fear interview. (See Docs. 1, 8.) By statute,
if Petitioner were determined not to have a credible fear of persecution, he would have
been ordered removed from the United States “without further hearing or review.” 8 U.S.C.
§ 1225(b)(1)(B)(iii). However, Petitioner was afforded removal proceedings and received
an oral decision from an IJ about his case on October 26, 2025. (See Doc. 8-1 at 15-18.)
Thus, the record indicates that Petitioner is likely detained under to 8 U.S.C. §
1225(b)(1)(B)(ii).6 Pursuant to § 1225(b)(1)(B)(ii), a noncitizen “shall be detained for
further consideration of the application for asylum.”
Respondents argue that “Section 1125(b)(2)(A) requires Petitioner’s detention
without bond and provides none of the procedures Petitioner requests.” (Doc. 8 at 5.) It
appears Respondents essentially conclude that because Petitioner is an arriving noncitizen,
his detention is justified indefinitely. (See id. at 2-5.) 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, 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, CV-26-
6 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 Rodriguez v. Noem, No. CV-26-00481-PHX-KML (JFM), 2026 WL
237776, at *1 (D. Ariz. Jan. 29, 2026) (citing Bautista v. Santacruz, No. 5:25-CV-01873-SSS-
BFM, 2025 WL 3288403, at *1 (C.D. Cal. Nov. 25, 2025)). In the instant case, it appears Petitioner
would not be a member of the bond-eligible class because § 1225(b)(1)(A)(ii) likely applies to
him. See Bautista, 2025 WL 3288403, at *1.
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00217-PHX-KML (ASB), 2026 WL 963792, at *1 (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.”). Consequently, undersigned assumes the analysis
does not end there and addresses Petitioner’s due process rights.
1. 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 case law 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.”)7
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
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 Riazhskikh, who challenge
7 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.
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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
(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
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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. Rodriguez8, 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). Thus, undersigned turns to what
process is due.9
2. 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
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
8 583 U.S. at 281.
9 While Respondents identify that Petitioner signed a “Notice of Rights” upon entry which
informed him that he would remain in custody for his removal proceedings, and argue that
Petitioner was already given a bond hearing on January 31, 2025, and thus is not entitled to a bond
hearing, Respondents do not support these claims or otherwise show how this is sufficient process.
(See Doc. 8 at 2, 7.) Based on the record before this Court, Petitioner never received an
individualized assessment of his risk of flight or danger to the community. See Banda, 385 F. Supp.
3d at 1106. Accordingly, these arguments by Respondents, without support, fail.
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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 Lopez10 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 Mathews
v. Elridge11 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 Orders and 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); Salamakhin
v. Noem, No. CV-26-00330, 2026 WL 1250296, at *5-8 (D. Ariz. May 6, 2026) (applying
the Banda test and finding that petitioner’s detention had become unreasonable). 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)).
10 “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).
11 “[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).
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Regarding the first factor, total length of detention, Petitioner has been in detention
since he arrived in the United States on January 13, 2025. (Doc. 1 at 4.) Thus, Petitioner
has been detained for at least sixteen 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 sixteen-month detention weighs towards granting a bond
hearing.
The second factor, likely duration of future detention, also weighs towards
Petitioner’s position. On October 26, 2025, an Immigration Judge denied Petitioner’s
asylum application. (See Doc. 1 at 20-23.) Petitioner appealed that decision on November
25, 2025, and that appeal is pending before the BIA. (See Docs. 8 at 2, 8-1 at 19.) 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. 11, 2023) (“It is anyone’s guess how long it will take the BIA to
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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, 29.) 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). Here, the parties agree Petitioner is confined at the
San Luis Regional Detention Center in Arizona. (See Docs. 1, 8.) This court has previously
recognized that San Luis Regional Detention Center is a medium-security facility operated
by a private corrections company LaSalle Corrections. See Cardin Alvarez v. Rivas, No.
CV 25-02943 PHX GMS (CDB), 2025 WL 2898389, at *19 (D. Ariz. Oct. 7, 2025), report
and recommendation adopted in part, rejected in part sub nom. Alvarez v. Rivas, No. CV-
25-02943-PHX-GMS, 2025 WL 2899092 (D. Ariz. Oct. 10, 2025). The facility houses
immigration detainees awaiting trial, deportation, and immigrants serving sentences
following a criminal conviction. See id. The facility allows no-contact visitation limited to
one day per week, no electronic devices are allowed, all visitors are searched, legal mail is
inspected, and contact with legal counsel is limited. Id. at n.21.
Furthermore, Petitioner pleads in his form Petition that “Petitioner faces limited
access to legal resources and has restricted communication with counsel due to detention
conditions at San Luis Regional Detention Facility.” (Doc. 1 at 4.) He continues,
“Petitioner also has medical conditions that are inadequately addressed by facility staff,
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exacerbating the hardships of prolonged detention.” (Id.) While the Petition only vaguely
describes his challenges at the San Luis Regional Detention Center, this Court’s prior
finding regarding the surveillance at San Luis and the oversight by a private correctional
company resemble conditions of “penal confinement” and therefore favor granting a bond
hearing. See Banda, 385 F. Supp. 3d at 1119.
In the fourth and fifth factors, the Court considers delays in the removal proceedings
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, 8, 12.)
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. Neither party has presented any evidence regarding
Petitioner’s asylum claim, and undersigned will not attempt to guess how the BIA or, if
applicable, the Ninth Circuit may rule on his asylum petition. (See Docs. 1, 8, 12.)
Undersigned finally makes note of similarly situated petitioners. Based on the
record before this Court, Petitioner made an appointment through the CBP One
Application, arrived at a U.S. port of entry on his appointment date, and immediately
surrendered himself to border officials claiming asylum. (See Doc. 1 at 13.) Rather than
attempt to evade border enforcement, Petitioner cooperated with officials. (Id.) 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
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asylum); c.f. Chavez v. Noem, 2026 WL 381618, at *3 (“[A] person who entered the United
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.
IV. Conclusion and Remedy
Based on the above, undersigned recommends this Court deny leave to amend the
Petition and grant the Petition in part, directing that Petitioner be afforded a bond hearing.
Undersigned recommends the remainder of the requests made in the Petition be denied. In
addition to a bond hearing, Petitioner requests immediate release from detention and his
costs and reasonable attorneys’ fees. (See Doc. 1 at 11.) However, Petitioner does not
provide relevant support for the requests.12 (See id.) Moreover, 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 without prejudice).
RECOMMENDATION
Based on the foregoing,
IT IS THEREFORE RECOMMENDED that the Petition for Writ of Habeas
Corpus Pursuant (Doc. 1) be granted in part and denied in part as follows:
12 For example, the briefing contains no two-part analysis of the propriety of fees under the
EAJA. See Nadarajah v. Holder, 569 F.3d 906, 909-910, 914 (9th Cir. 2009). Because the record
before the Court contains no discussion of the availability of attorney’s fees under the EAJA aside
from a bare citation, undersigned recommends the Court deny the request without prejudice. In so
recommending, undersigned makes no suggestion whether leave to file should be granted, whether
attorney’s fees should or should not be available, or who the “prevailing party” may be.
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1. Undersigned recommends that the Court grant Petitioner’s request for a bond
hearing and order that, within thirty (30) days of the date the 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 Petitioner 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 without prejudice.
IT IS FURTHER RECOMMENDED that Petitioner’s Motion for Leave to
Amend Petition and to Join Spouse as Co-Petitioner (Doc. 13) be denied.
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 18th day of May, 2026.
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