Kvirkveliia v. Unknown Party et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Nika Kvirkveliia,
Petitioner,
v.
Unknown Party, et al.,
Respondents.
No. CV-26-02956-PHX-AMM (ASB)
REPORT AND RECOMMENDATION
TO THE HONORABLE ANGELA M. MARTINEZ, UNITED STATES DISTRICT
JUDGE:
Pending before the Court is pro se Petitioner Nika Kvirkveliia’s Petition for Writ of
Habeas Corpus (Doc. 1)1, filed on April 20, 2026. Petitioner is detained at San Luis
Regional Detention Center and requests immediate release from Immigration and Customs
Enforcement (“ICE”) custody or, in the alternative, a bond hearing. (Id. at 5.) For the
reasons that follow, undersigned recommends the Petition be denied and dismissed without
prejudice and with leave to amend.
I. PROCEDURAL HISTORY AND BACKGROUND
The facts before this Court are largely undisputed. (See Docs. 1, 13.) Petitioner is a
dual citizen of Russia and Georgia, with Georgian nationality, who arrived in the United
States on August 6, 2024. (Doc. 1 at 3.) Petitioner arrived at the Calexico, California, Port
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-26-02956-PHX-AMM
(ASB).
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of Entry through an appointment on the CBP One application. (Id.) Petitioner was
categorized as an arriving alien and issued a Notice to Appear on the day of his arrival,
August 6, 2024. (Doc. 1-3 at 2-5.) Petitioner was deemed subject to removal pursuant to §
212(a)(7)(A)(i)(I) of the Immigration and Nationality Act (“INA”) as an “immigrant who,
at the time of application for admission, is not in possession of a valid . . . entry
document[.]” (Id. at 5.) Petitioner timely applied for asylum, withholding of removal, and
protection under the Convention Against Torture (“CAT”). (Doc. 1 at 3, Doc. 1-2 at 2-3,
Doc. 13-1 at 2.)
An immigration judge (“IJ”) held a merits hearing on July 14 and July 22, 2025.
(Doc. 1-2 at 2-3.) In her August 15, 2025 written decision, the IJ granted Petitioner’s
application for asylum from Georgia and held in abeyance his applications for withholding
of removal and protection under the CAT. (Id. at 2-16.) The IJ denied Petitioner’s
application for asylum from Russia, denied his application of withholding of removal from
Russia, and denied withholding and deferral of removal from Russia under the CAT. (Id.)
The IJ ordered Petitioner be removed to Russia or, alternatively, to Georgia. (Id. at 16.)
Petitioner filed an appeal of the IJ decision with the Board of Immigration Appeals
(“BIA”) on September 12, 2025. (Doc. 1 at 4.) Petitioner, through counsel, filed a brief
with the BIA on February 18, 2026. (Id.) While the BIA appeal was pending, Petitioner
filed the instant Petition in the United States District Court for the Southern District of
California on April 20, 2026. (See Doc. 6 at 1.) On April 27, 2026, the action was
transferred to the District of Arizona, because Petitioner was detained in Arizona when he
filed his Petition. (Id.)
In his pro se Petition, Petitioner argues that his continued detention violates the Due
Process Clause of the Fifth Amendment. (Doc. 1 at 4.) Petitioner contends that he has been
in “unlawful and unjustified detention for more than 20[] months without the possibility of
parole” and that his “prolonged detention has now become unreasonable and excessive,
and [no] longer serves a legitimate administrative purpose.” (Id.) Petitioner requests
immediate release or, alternatively, a bond hearing. (Id. at 5.)
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This Court issued an Order on May 5, 2026, requiring Respondents David R. Rivas,
Warden of the San Luis Regional Detention Center, Todd M. Lyons, ICE Director,
Markwayne Mullins, Secretary of the United States Department of Homeland Security
(“DHS”), and Todd Blanche, Acting Attorney General of the United States (collectively,
“Respondents”)2 to file a Response. (Doc. 6.) On June 1, 2026, Respondents filed a timely
Response to Petition for Writ of Habeas Corpus arguing that Petitioner’s detention is
statutorily authorized and constitutional. (Doc. 13 at 1-4.) Respondents assert Petitioner’s
detention is mandatory because an alien who is ordered removed must be detained for
ninety days once their removal order becomes administratively final. (Id. at 3.)
Respondents identify that on May 26, 2026, the BIA found no error with the IJ’s findings
and denied Petitioner’s appeal. (See Doc. 13-1 at 2-8.) Respondents argue that Petitioner
“remains squarely in the mandatory ninety-day . . . detention period” and therefore the
Court should deny and dismiss the instant Petition. (Doc. 13 at 3.)
Petitioner did not file a Reply, and the time for doing so has now elapsed. (See Doc.
6 at 4.)
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
2 Petitioner initially named “Warden of the San Luis Regional Detention Center, Current or
Acting Field Office Director, Calexico Field Office, United States Immigration and Customs
Enforcement; Current or Acting Director, United States Immigration and Customs Enforcement;
Current or Acting Secretary, United States Department of Homeland Security; and Current or
Acting United States Attorney General” as Respondents. (See Doc. 1.) Pursuant to this Court’s
May 5, 2026 Order, David Rivas replaced Respondent “Warden of the San Luis Regional
Detention Center,” Todd M. Lyons replaced Respondent “Current or Acting Director, United
States Immigration and Customs Enforcement,” Markwayne Mullins replaced Respondent
“Current or Acting Secretary, United States Department of Homeland Security,” and Todd
Blanche replaced Respondent “Current or Acting United States Attorney General.” (See Doc. 6 at
3.)
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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).
Under 8 U.S.C. § 1231(a)(1), once a removal order becomes final, the Government
has ninety days to effectuate the individual’s removal from the United States. This
“removal period” generally commences as soon as a removal order becomes
administratively final, and during the “removal period” detention of the alien is mandatory.
8 U.S.C. §§ 1231(a)(1)-(2). “An order of removal becomes final at the earlier of two points:
(1) ‘a determination by the [BIA] affirming such order,’ or (2) ‘the expiration of the period
in which the alien is permitted to’ petition the BIA for review of the order.” Riley v. Bondi,
606 U.S. 259, 267 (2025) (citing § 1101(a)(47)(B)). If an individual is not removed during
the removal period, the individual’s continued detention becomes discretionary. 8 U.S.C.
§ 1231(a)(6). However, that discretion is not unfettered, and “indefinite detention” is not
permitted. See 8 U.S.C. § 1231(a)(6); Zadvydas v. Davis, 533 U.S. 678, 689 (2001).
Based on the record before this Court, Petitioner’s order of removal became
administratively final at the denial of his BIA appeal on May 26, 2026. See Riley, 606 U.S.
at 267. Petitioner has not provided any information to the Court to indicate any pending
appeals or stayed removal orders in the Ninth Circuit. Because an order of removal
becomes final at the determination by the BIA affirming such an order, and the Government
has ninety days to effectuate an individual’s removal once a removal order becomes final,
Petitioner’s detention appears statutorily required. See 8 U.S.C. §§ 1231(a)(1)-(2).
III. CONCLUSION AND LEAVE TO AMEND
“[A] petition for habeas corpus should not be dismissed without leave to amend
unless it appears that no tenable claim for relief can be pleaded were such leave granted.”
Jarvis v. Nelson, 440 F.2d 13, 14 (9th Cir. 1971) (citations omitted). A petition for habeas
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corpus may be amended pursuant to the Federal Rules of Civil Procedure. 28 U.S.C. §
2242; Rule 12, Rules Governing Section 2254 Cases.3 Federal Rule of Civil Procedure
15(a) applies to a party’s motion to amend a pleading in a habeas corpus proceeding. James
v. Pliler, 269 F.3d 1124, 1126 (9th Cir. 2001); see also Local Rule of Civil Procedure
(“LRCiv”) 15.1. Leave to amend shall be freely given “when justice so requires.” Fed. R.
Civ. P. 15. A court may deny leave to amend 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).
Here, Petitioner has not requested that he be provided leave to amend should his
Petition be deficient. (See Doc. 1.) Even without that request, undersigned considers
whether “justice so requires” leave to amend. See Fed. R. Civ. P. 15(a); see also Cook,
Perkiss & Liehe, Inc. v. N. California Collection Serv. Inc., 911 F.2d 242, 247 (9th Cir.
1990) (“[A] district court should grant leave to amend even if no request to amend the
pleading was made, unless it determines that the pleading could not possibly be cured by
the allegation of other facts.” (applying in a 12(b)(6) context)) (citations omitted).
Although Petitioner has failed to dispute his order of removal becoming
administratively final and thereby show that his detention is unreasonable, his Petition
could be cured by the allegation of other facts, e.g., an appeal to the Circuit is pending.
Accordingly, undersigned will recommend that Petitioner be granted leave to amend the
Petition. See Jarvis, 440 F.2d at 14; see also Loussaief v. Wolf, No. CV-21-00042-PHX-
JAT-MHB, 2021 WL 214572, at *3 (D. Ariz. Jan. 21, 2021) (granting leave to amend when
petitioner failed allege sufficient facts to state a claim of indefinite detention).
RECOMMENDATION
Based on the foregoing,
IT IS RECOMMENDED that the Petition for Writ of Habeas Corpus (Doc. 1) be
3 The Rules Governing Section 2254 Cases may be applied to habeas corpus petitions not
brought under § 2254. Rule 1(b), Rules Governing Section 2254 Cases; see also Bostic v. Carlson,
884 F.2d 1267, 1270 n.1 (9th Cir. 1989), overruled on other grounds by Nettles v. Grounds, 830
F.3d 922 (9th Cir. 2016).
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DENIED and DISMISSED WITHOUT PREJUDICE and WITH LEAVE TO
AMEND.
IT IS FURTHER RECOMMENDED that the Court order the following:
(1) Grant Petitioner leave to file an Amended Petition within 30 days from the date of
the Court’s Order. That Amended Petition must include all claims Plaintiff wishes
to allege and all of the allegations that the claims are based upon, even if previously
presented in the original Petition. No part of the original Petition may be
incorporated by reference. If the Amended Petition fails to cure the defects
identified in this Order or if Petitioner fails to submit an Amended Petition on the
court-approved form within 30 days of from the date of the Court’s Order, the
Court may dismiss without further leave to amend.
(2) That if Petitioner fails to file an Amended Petition within 30 days of the date of the
Court’s Order, the Clerk of Court shall enter a judgment of dismissal without
prejudice, without further notice to the Petitioner.
(3) Directing the Clerk of Court to mail a copy of the current court-approved form for
filing a “Petition Under 28 U.S.C. § 2241 For A Writ of Habeas Corpus By A Person
In Federal Custody” to Petitioner.
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,
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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 24th day of June, 2026.
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