Ivanov v. Rivas et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Evgenii Ivanov,
Petitioner,
v.
David R. Rivas, et al.,
Respondents.
No. CV-25-04160-PHX-SHD (ASB)
REPORT AND RECOMMENDATION
TO THE HONORABLE SHARAD H. DESAI, UNITED STATES DISTRICT
JUDGE:
Pending before the Court is Petitioner Evgenii Ivanov’s pro se Petition for a Writ of
Habeas Corpus under 28 U.S.C. (Doc. 1)1, filed on November 7, 2025. Petitioner is
detained at San Luis Regional Detention Center and seeks release from immigration
detention pursuant to Zadvydas v. Davis, 533 U.S. 678 (2001). (Id.) For the reasons that
follow, the undersigned recommends the Petition for Writ of Habeas Corpus be denied and
dismissed without prejudice and with leave to amend.
I. PROCEDURAL HISTORY AND BACKGROUND
Petitioner is a citizen of Russia who entered the United States on October 7, 2018.
(Docs. 1 at 2; 10 at 1.) Petitioner was ordered removed on January 22, 2020 “by an
Imigration [sic] Judge.” (Doc. 1 at 2); (see also Doc. 10-1 at ¶ 4.) Following an appeal,
Petitioner’s Final Removal Order issued on May 21, 2021. (Docs. 1 at 2; 10-1 at ¶ 9.)
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-25-04160-PHX-SHD (ASB).
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Petitioner has been in the custody of Immigration and Customs Enforcement (“ICE”) since
January 26, 2025. (Docs. 1 at 2; 10-1 at ¶ 10.) In his Petition, Petitioner argues that his
continued detention violates the Due Process Clause of the Fifth Amendment to the U.S.
Constitution because he has been held over six months and “there is no significant
likelihood that he will be removed in the reasonabl[y] forseeable [sic] future.” (Doc. 1 at 2
(quoting Zadvydas, 533 U.S. at 701).)
Respondents, David R. Rivas, Warden of the San Luis Regional Detention Center,
and Pamela Bondi, Attorney General of the United States (collectively, “Respondents”)2
filed a “Response in Opposition to Motion for Temporary Restraining Order and
Preliminary Injunction”3 on December 15, 2025. (Doc. 10.) In their Response, Respondents
include a Declaration from ICE Deportation Officer Jorge E. Hernandez (hereinafter,
“Declaration”). (Doc. 10-1 at 1-4.) The Declaration reflects that Petitioner was previously
in ICE custody and granted parole on May 6, 2020 in the Alternatives to Detention (ATD)
program because of the COVID-19 pandemic. (Doc. 10-1 at ¶ 5.) According to the
Declaration, Petitioner was terminated from the ATD program on December 10, 2020 after
being detained in San Diego Central Jail due to a domestic violence charge. (Id. at ¶ 6.)
The Declaration states Petitioner was re-enrolled in ATD on December 18, 2020 after his
release from county jail and the charges were thereafter dropped. (Id. at ¶¶ 7-8.) Finally, as
stated in the Declaration, Petitioner was arrested on January 26, 2025 by Enforcement and
Removal Operations (ERO) and terminated from the ATD program. (Id. at ¶ 10.)
According to the Declaration, on May 13, 2025 Petitioner was booked for an
interview “and to fill out Form I-217, Information for Travel Document or Passport and
the travel document request (entitled Questionnaire) which consists of information required
by the Russian Federation to verify citizenship. Petitioner refused to fill out the I-217 or
provide information for the travel document request[.]” (Doc. 10-1 at ¶ 15.) The
2 Petitioner initially named ICE in addition to the aforementioned Respondents. (Doc. 1.)
ICE was dismissed as a Respondent pursuant to this Court’s Order on November 19, 2025. (See
Doc. 3.)
3 Although the Response is styled as one responding to a motion for temporary restraining
order and preliminary injunction, the record shows the Petitioner filed only a Petition pursuant to
§ 2241, not a motion for temporary restraining order or preliminary injunction. (See Docs. 1, 10.)
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Declaration asserts that on three additional occasions from August 2025 to October 2025,
Petitioner was asked and refused to provide information or assist in obtaining travel
documents. (See id. at ¶¶ 17-21.) After the final refusal, according to the Declaration,
Officer Hernandez served Petitioner with a Form I-229(a) – Warning for Failure to Depart
and a Notice of Failure to Comply. (Id. at ¶¶ 21-22.) The Declaration also attests to steps
taken by ICE to secure travel documents for Petitioner, including compiling a Travel
Document Request (TDR) packet to send to the Embassy of Russian Federation for
citizenship verification. (Id. at ¶¶ 23-27.) The Declaration then outlines the subsequent
steps the Department of Homeland Security (“DHS”) will take to effectuate Petitioner’s
removal to Russia, and asserts that if a travel document is refused by the Russian
Federation, “[Enforcement and Removal Operations] will work with DHS and the U.S.
Department of State to coordinate a Third Country Removal.” (Id. at ¶¶ 27-29.)
Petitioner did not file a Reply, and the time for doing so has now elapsed. (See Doc.
3 at 3.)
II. STANDARD OF REVIEW
“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).
Under 8 U.S.C. § 1231(a)(1), once a removal order becomes final, the Government
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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). 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, 533 U.S. at 689. The Supreme Court in Zadvydas recognized a six-
month period where detention was “presumptively reasonable.” 533 U.S. at 701. After this
six-month period, “once the alien provides good reason to believe that there is no
significant likelihood of removal in the reasonably foreseeable future, the Government
must respond with evidence sufficient to rebut that showing.” Id. The presumption,
however, is not dispositive. Id. (“This 6-month presumption, of course, does not mean that
every alien not removed must be released after six months. To the contrary, an alien may
be held in confinement until it has been determined that there is no significant likelihood
of removal in the reasonably foreseeable future.”); see also Johnson v. Guzman Chavez,
594 U.S. 523, 529 (2021) (after the six-month period has elapsed, “if the alien ‘provides
good reason to believe that there is no significant likelihood of removal in the reasonably
foreseeable future,’ the Government must either rebut that showing or release the alien”)
(quoting Zadvydas, 533 U.S. at 701).
Courts have found that a petitioner may meet his burden of persuasion by alleging
that his country of removal has refused or is unable to issue a travel document. See, e.g.,
Eshaghian v. Howard, No. CV-25-04141-PHX-DWL (ASB), 2026 WL 63451, at *3 (D.
Ariz. Jan. 8, 2026) (finding petitioner met his initial burden by proffering unrebutted
evidence that he lacks original documents, such as a birth certificate or passport, sufficient
to obtain travel documents from his country of removal); Vaskanyan v. Janecka, No. 25-
CV-01475-MRA-AS, 2025 WL 3050081, at *5 (C.D. Cal. July 18, 2025) (finding
petitioner demonstrated that ICE was unable to remove him to the countries designated for
removal and thus that petitioner met his burden); Mohammad Hadi Hezardastan v. Kristi
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Noem et. al., No. 25-CV-3424-AB-DTB, 2025 WL 3768581, at *2 (C.D. Cal. Dec. 23,
2025) (holding petitioner who had only been held for four months rebutted the presumption
of reasonableness because he could not be deported to the last country he resided or the
country he was a citizen of). Courts in the Ninth Circuit have found that a petitioner fails
to meet this burden when a petitioner foreseeably remains capable of being removed or
fails to allege sufficient facts that indicate removal is not feasible. See Prieto-Romero v.
Clark, 534 F.3d 1053, 1065 (9th Cir. 2008) (“[Petitioner] foreseeably remains capable of
being removed . . . and so the government retains an interest in ‘assuring [his] presence at
removal.’” (emphasis in original)) (quoting Zadvydas, 533 U.S. at 699); Loussaief v. Wolf,
No. CV-21-00042-PHX-JAT-MHB, 2021 WL 214572, at *2 (D. Ariz. Jan. 21, 2021)
(finding petitioner did not allege sufficient facts to support that his country of removal
refused to issue travel documents or otherwise indicate his removal is not feasible).
III. DISCUSSION
Based on the record before this Court, Petitioner has now been in detention for far
longer than the mandatory ninety-day removal period and the six-month presumptive
detention period. See Zadvydas, 533 U.S. at 689. Petitioner received his Final Removal
Order on May 21, 2021, but due to the ATD program, was not placed in custody until
January 26, 2025. (See Doc. 10-1 at ¶¶ 5-10.) Therefore, Petitioner has now spent over a
year in DHS custody. (See Docs. 1, 10.) Because Petitioner has been detained with a final
removal order for over the presumptive six-month period, the initial burden falls on
Petitioner to provide good reason to believe that there is no “significant likelihood of
removal in the reasonably foreseeable future.” Zadvydas, 533 U.S. at 689.
In his Petition, Petitioner asserts that his “continued detention in immigration
custody violates the Due Process Clause of the Fifth [Amendment] to the U.S. Constitution
because there is no significant likelihood that he will be removed in the [reasonably]
forseeable [sic] future.” (Doc. 1 at 2.) Petitioner further claims that “his detention has
deviated from the main purpose of removal” and he is being illegally detained. (Id. at 3.)
Petitioner supports his Petition with character references from his pastor, family, and
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landlord. (See id. at 5-12.)
Respondents argue in Response that Petitioner has not met his burden to establish
that there is no likelihood of removal in the reasonably foreseeable future. (Doc. 10 at 5-
6.) Respondents argue that “Petitioner must do more than simply establish that he has been
detained for more than six months to be entitled to release.” (Id. at 6.) Respondents further
argue that Petitioner, by refusing to provide information to ICE necessary to effectuate his
removal, has impeded his removal. (Id. at 7.) Finally, Respondents aver that “uncertainty
as to Petitioner’s exact removal date does not warrant release.” (Id. at 7-8.)
Here, undersigned finds Petitioner has failed to meet his initial burden to provide
good reason to believe that there is no significant likelihood of removal in the reasonably
foreseeable future. See Zadvydas, 533 U.S. at 701. Petitioner has not alleged any facts that
indicate his removal is not feasible. (See Doc. 1); see Loussaief, 2021 WL 214572, at *2.
In short, Petitioner has done little in his Petition but allege he has been detained longer than
the presumptive period and therefore his detention is unlawful. (See Doc. 1.) The law does
not support that position. Rather, Petitioner must meet his burden. Without any factual
support for that assertion, the record indicates Petitioner foreseeably remains capable of
being removed in the future. See Prieto-Romero, 534 F.3d at 1065; cf., e.g., Eshaghian,
2026 WL 63451, at *3 (where petitioner met his burden in part because he pled he lacked
the original personal documents sufficient to satisfy the country of removal in order to
obtain travel documents).
Because Petitioner has not met his burden, the burden does not shift to the
Government. See Zadvydas, 533 U.S. at 701. Nevertheless, because undersigned will
recommend leave to amend be granted infra, undersigned will briefly address
Respondents’ assertions that Petitioner has hindered his own removal from the United
States. (See Doc. 10 at 4-5) (“[T]he record demonstrates that Petitioner’s refusal to
cooperate with ICE is the cause of his continued detention.”) Without making any findings
as to the veracity of the Government’s assertions, the Court observes that the Ninth Circuit
has held that “Zadvydas does not save an alien who fails to provide requested
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documentation to effectuate his removal.” Pelich v. I.N.S., 329 F.3d 1057, 1060 (9th Cir.
2003); see also Lema v. I.N.S., 341 F.3d 853, 857 (9th Cir. 2003) (a removable alien’s
continued detention is authorized “so long as the alien fails to cooperate fully and honestly
with officials to obtain travel documents”). Thus, while undersigned’s recommendation
below is based on Petitioner’s failure to plead facts related to his likelihood of removal in
the reasonably foreseeable future, Petitioner’s failure to cooperate with ICE in obtaining
travel documents could also justify his continued detention. See Pelich, 329 F.3d at 1060.
However, because Petitioner did not meet his initial burden in showing there is no
significant likelihood that he will be removed in the reasonably foreseeable future, the
Court need not analyze the Government’s response regarding its rebuttal evidence. See
Zadvydas, 533 U.S. at 689.
IV. 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
corpus may be amended pursuant to the Federal Rules of Civil Procedure. 28 U.S.C. §
2242; Rule 12, Rules Governing Section 2254 Cases.4 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,
4 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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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 meet his initial burden to show no significant
likelihood of removal in the reasonably foreseeable future, the Petition may possibly be
amended to state a claim. Accordingly, undersigned will recommend that Petitioner be
granted leave to amend the Petition. See Jarvis, 440 F.2d at 14; see also Loussaief, 2021
WL 214572, at *3 (granting leave to amend when petitioner failed to 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 pursuant to
28 U.S.C. § 2241 (Doc. 1) be 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
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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,
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 19th day of February, 2026.
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