Baghdasaryan v. Noem et al

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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).
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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.)
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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
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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).
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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,
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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.
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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
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(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.
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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).
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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.
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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
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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
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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).
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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.
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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.
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