Markosian v. Bondi et al

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
ALLA MARKOSIAN,
Petitioner,
v.
PAM BONDI, Attorney General of the
United States; KRISTI NOEM, Secretary,
U.S. Department of Homeland Security;
TODD M. LYONS, Director of
Enforcement and Removal Operations for
the United States; GREGORY
ARCHAMBEAULT, Director for the San
Diego Field Office of ICE Enforcement
and Removal Operations; and
CHRISTOPHER LAROSE, Warden for
Otay Mesa Detention Center,
Respondents.
Case No.: 25-cv-3494-JES-BLM
ORDER GRANTING PETITION
FOR WRIT OF HABEAS CORPUS
[ECF No. 1]
Before the Court is Petitioner Alla Markosian’s Petition for Writ of Habeas Corpus
pursuant to 28 U.S.C. § 2241, filed on December 10, 2025. ECF No. 1 (“Pet.”).
Respondents filed a return on December 17, 2025. ECF No. 9. Petitioner filed a traverse
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on December 19, 2025. ECF No. 10. For the reasons set forth below, the Court GRANTS
the Petition.
I. 	BACKGROUND
Petitioner is a nineteen-year-old citizen of Russia who entered the United States at
San Ysidro with her mother and sister on December 12, 2024. Pet. ¶ 14. Petitioner’s mother
and sister have since been released and live at a fixed residence in California with
Petitioner’s father. Id. ¶¶ 52, 58. Petitioner has remained in custody at Otay Mesa Detention
Center for more than 12 months since her arrival. Id. ¶ 16.
On June 6, 2025, Petitioner applied for asylum and withholding of removal. Id. ¶ 15.
While Petitioner’s hearing on her asylum claims was initially scheduled for June 24, 2025,
her counsel requested a continuance which was granted. ECF No. 7 at 3. On October 1,
2025, an immigration judge (“IJ”) found Petitioner credible but denied her applications and
ordered her removal. Pet. ¶ 15. Petitioner appealed that decision on October 9, 2025, and
that appeal is still pending. Id.
II. 	LEGAL STANDARD
A writ of habeas corpus is “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).
“The essence of habeas corpus is an attack by a person in custody upon the legality of that
custody, and ... the traditional function of the writ is to secure release from illegal custody.”
Preiser v. Rodriguez, 411 U.S. 475, 484 (1973). A court may grant a writ of habeas corpus
to a petitioner who demonstrates to be in custody in violation of the Constitution or federal
law. 28 U.S.C. § 2241(c)(3). Traditionally, “the writ of habeas corpus has served as a means
of reviewing the legality of Executive detention, and it is in that context that its protections
have been strongest.” I.N.S. v. St. Cyr, 533 U.S. 289, 301 (2001). Accordingly, challenges
to immigration-related detention are within the purview of a district court's habeas
jurisdiction. Zadvydas v. Davis, 533 U.S. 678, 687 (2001); see also Demore v. Kim, 538
U.S. 510, 517 (2003).
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III. DISCUSSION
Petitioner argues that her continued detention without an individualized finding of
justification violates the Administrative Procedure Act (“APA”) and the Due Process
clause. The Court discusses these arguments in turn below.
A. Administrative Procedure Act
Petitioner argues first that her continued detention is arbitrary and capricious in
violation of the APA. Pet. ¶ 52. Petitioner argues that Respondents’ decision to detain her
under the mandatory detention provision of 8 U.S.C. § 1225(b) and refuse her parole were
arbitrary and capricious because Respondents did not provide a sufficient justification for
that decision. Id.
Section 1225(b)(1)(A)(ii) applies to applicants for asylum by its plain language, and
allows for detention during the pendency of cases. Jennings v. Rodriguez, 583 U.S. 281,
283 (2018). Here, Petitioner is an applicant for asylum whose application has been pending
since shortly after her arrival. Pet. ¶ 15. In this case where there are no facts to show that
1225(b) does not apply to Petitioner, and no apparent extenuating circumstances regarding
her categorization, the Court does not find that Respondents acted arbitrarily and
capriciously by applying that statute in her case. The Petition is thus DENIED on the basis
of the government violating the APA by arbitrarily and capriciously categorizing Petitioner
under 1225(b).
B. Due Process
Petitioner also argues that her continued detention without individualized
justification of detention itself constitutes a deprivation of liberty without due process of
law. Pet. ¶ 60. The Court agrees.
As explained above, section 1225(b) anticipates the detention of individuals seeking
asylum while their cases are pending, and does not require bond hearings to do so. 8 U.S.C.
§ 1225(b). At the same time, the Due Process Clause puts serious guardrails on the
government’s ability to detain any person indefinitely without individualized justification
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of detention itself. Zadvydas v. Davis, 533 U.S. at 690. For noncitizens subject to final
orders of removal, the Supreme Court has held that individualized justification is necessary
after a six-month period in which detention is presumptively reasonable to effectuate
removal. Id. The Supreme Court has made clear that this six-month rule does not apply to
noncitizens without a final order of removal. Jennings v. Rodriguez, 583 U.S. 281, 298
(2018) (holding that the Ninth Circuit had inappropriately applied the canon of
constitutional avoidance, and remanding for consideration of the statutory text and due
process concerns). However, at the time of this opinion, there is no controlling authority
reconciling the textually unlimited mandatory detention provisions of 8 U.S.C. § 1225(b)
and this country’s legal axiom, dating back to the founding generation, that no person may
be detained for an indefinite time without some process justifying their detention itself.
See, e.g., U.S. Const. amend. V, § 1; Rodriguez v. Marin, 909 F.3d 252, 256 (9th Cir. 2018)
(“We 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.”); Zadvydas, 533 U.S. at 690 (“A statute permitting indefinite detention of an alien
would raise a serious constitutional problem.”); The Federalist No. 84 (Alexander
Hamilton) (“The practice of arbitrary imprisonments has been, in all ages, the favorite and
most formidable instruments of tyranny.”). Habeas courts are thus called to determine
when a person’s detention under 1225(b) is prolonged without explanation such that the
due process clause is necessarily offended by a total lack of individual process as to their
detention itself.
Because this unresolved issue necessarily counterbalances the government’s interest
in efficient removals against noncitizens’ interest in liberty, courts across the country have
adopted a balancing test to determine when the constitution requires process regarding
detention even absent a final order of removal. In Banda v. McAleenan, the Court
articulated a series of considerations for cases involving prolonged detention of noncitizens
not subject to final orders of removal. 385 F. Supp. 3d 1099, 1106 (W.D. Wash. 2019). The
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factors are as follows: “(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 cause by the government;
and (6) the likelihood that the removal proceedings will result in a final order of removal.”
Id. The court there found that the petitioner was entitled to relief where (1) he was detained
for 17 months; (2) his appeal was in process with the Board of Immigration Appeals and
still subject to later Ninth Circuit review; (3) the parties had not submitted evidence
regarding the conditions of detention; (4) Petitioner was not at fault for delays due to the
need for an interpreter; (5) the government was to blame for the slow process of securing
a translator; and (6) it was unclear how likely it was that proceedings would result in
removal. Id. at 1118-20. These factors have since been used by courts across this country,
including in eight cases to date in this district. See Amado v. United States Dep't of Just.,
No. 25CV2687-LL-DDL, 2025 WL 3079052 (S.D. Cal. Nov. 4, 2025) (granting request
for a bond hearing for a petitioner held for thirteen months under 1225(b)’s mandatory
detention provision); Abdul Kadir v. Larose, No. 25CV1045-LL-MMP, 2025 WL 2932654
(S.D. Cal. Oct. 15, 2025) (same); Sadeqi v. LaRose, No. 25-CV-2587-RSH-BJW, 2025 WL
3154520 (S.D. Cal. Nov. 12, 2025) (granting request for a bond hearing for a petitioner
held for eleven months under 1225(b)’s mandatory detention provision). These factors are
also in keeping with, and expand upon, an earlier test from a district court in this Circuit
which reviewed total length of detention, likelihood of future detention, and delays in the
removal proceedings caused by the government and petitioner. Lopez v. Garland, 631 F.
Supp. 3d 870, 879 (E.D. Cal. 2022). The Court finds the Banda factors a comprehensive
summary of considerations in prolonged detention claims without final orders of removal,
and uses them here as a lens through which to evaluate the constitutionality of Petitioner’s
detention without process regarding detention.
Courts consider the first factor, time in detention to date, to be the most important in
determining the necessity of process regarding detention. See Banda, 385 F. Supp. 3d at
1118 (“the length of detention, which is the most important factor”); Amado v. United
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States Dep't of Just., No. 25CV2687-LL-DDL, 2025 WL 3079052, at *5 (S.D. Cal. Nov.
4, 2025) (“The total length of detention to date is considered the most important factor.”).
In this case, Petitioner has been detained for nearly thirteen months. See Gonzalez v.
Bonnar, No. 18-cv-05321-JSC, 2019 WL 330906, at *3 (N.D. Cal. Jan. 25, 2019) (“In
general, ‘[a]s detention continues past a year, courts become extremely wary of permitting
continued custody absent a bond hearing.’” (alteration in original)); Lopez v. Garland, 631
F. Supp. 3d 870, 879 (E.D. Cal. 2022) (“Petitioner has been in immigration detention
... approximately one year. District courts have found shorter lengths of detention
... without a bond hearing to be unreasonable.”); Tonoyan v. Andrews, No. 1:25-CV-00815-
SKO-HC, 2025 WL 3013684, at *4 (E.D. Cal. Oct. 28, 2025) (“Petitioner has been detained
approximately 11 months. This period ... qualifies as prolonged.”). The Court also notes
regarding length of detention that as a nineteen-year-old, a year constitutes a significant
portion of Petitioner’s life so far. This factor weighs in favor of finding that Petitioner has
a right to due process regarding her detention. See also Masood v. Barr, No. 19-CV-07623-
JD, 2020 WL 95633, at *3 (N.D. Cal. Jan. 8, 2020) (finding detention for nearly nine
months weighs in favor of the petitioner); Cabral v. Decker, 331 F. Supp. 3d 255, 261
(S.D.N.Y. 2018) (finding detention of over seven months weighed in petitioner’s favor);
Perez v. Decker, No. 18-CV-5279 (VEC), 2018 WL 3991497, at *5 (S.D.N.Y. Aug. 20,
2018) (finding detention of over nine months weighed in petitioner’s favor); Brissett v.
Decker, 324 F. Supp. 3d 444, 452 (S.D.N.Y. 2018) (finding detention of over nine months
weighed in petitioner’s favor).
Regarding the second factor, Petitioner’s immigration appeal could be pending for a
long time yet, as she has not been given a date by which the BIA will adjudicate her claim.
Further, Petitioner may still appeal her case to the Ninth Circuit, which, as the Banda court
noted, could take an additional significant period of time. See Banda, 385 F. Supp. 3d at
1118. This factor also weighs in favor of granting relief.
Regarding the third factor, conditions of confinement, Petitioner points to the harsh
conditions in immigration lock-down facilities. Pet. ¶ 36. While Petitioner has no criminal
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history (id. ¶ 14), she is detention at Otay Mesa, which is not meaningfully distinguishable
from penal confinement. See Kydyrali v. Wolf, 499 F.Supp.3d 768, 772 (S.D. Cal. 2020).
This factor weighs in favor of finding she is entitled to due process regarding her detention.
Regarding the fourth factor, the petitioner’s responsibility for delay, Respondents
here point out that Petitioner’s counsel asked for a continuance of her hearing, which
extended the timeline by three months. ECF No. 7 at 3. However, as courts have repeatedly
noted, a petitioner’s pursuit of defenses to removal should not be held against a
determination that they are entitled to due process. Liban M.J. v. Sec'y of Dep't of
Homeland Sec., 367 F. Supp. 3d 959, 965 (D. Minn. 2019) (“Petitioner is entitled to raise
legitimate defenses to removal ... and such challenges to his removal cannot undermine his
claim that detention has become unreasonable.”); Abduraimov v. Andrews, No. 1:25-CV-
00843-EPG-HC, 2025 WL 2912307, at *9 (E.D. Cal. Oct. 14, 2025) (finding this factor
neutral where Petitioner requested continuances and the government exercised its right to
appeal, and collecting cases). The Court notes that counsel requesting continuances is
common and may occur in good faith for many reasons, including to have more time to
investigate cases. Petitioner may face a challenge in finding a prompt and available court
date following the requested continuance, through no fault of her own. Thus, the fourth
factor weighs very slightly against granting relief.
Regarding the fifth factor, the government’s responsibility for the delay, there is no
evidence that the government has delayed adjudication of her claims other than the length
of her detention itself. The Court considers this factor to be neutral in this case.
The sixth factor is likelihood that Petitioner’s proceedings will result in removal.
The Court does not have enough information to determine the likelihood that her
proceedings will result in removal, but notes that it is possible she will be granted
withholding on appeal based on her prior credible fear determination. See Pet. ¶ 15. This
factor weighs slightly in Petitioner’s favor.
//
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In conclusion, the relevant considerations here weigh heavily in favor of Petitioner’s
claim that due process requires individual findings regarding her detention. The Court thus
GRANTS the Petition on due process grounds. Petitioner is entitled to a bond hearing in
accordance with this order.
At that hearing, Respondents must justify her continued detention by clear and
convincing evidence that Petitioner is a flight risk or would pose a danger to the community
if released. See Singh v. Holder, 638 F.3d 1196, 1203 (9th Cir. 2011), abrogated on other
grounds by Jennings v. Rodriguez, 583 U.S. 281, 138 S.Ct. 830, 200 L.Ed.2d 122 (2018)
(holding that such burden was proper to determine bond in immigration cases); Martinez
v. Clark, 124 F.4th 775, 785–86 (9th Cir. 2024) (same); Sadeqi v. LaRose, No. 25-CV-
2587-RSH-BJW, 2025 WL 3154520, at *4 (S.D. Cal. Nov. 12, 2025) (ordering same bond
hearing standard in immigration 2241 petition); Abdul Kadir v. Larose, No. 25CV1045-
LL-MMP, 2025 WL 2932654, at *6 (S.D. Cal. Oct. 15, 2025) (same); Idiev v. Warden of
the Golden State Annex Det. Facility, No. 1:25-CV-01030-SKO (HC), 2025 WL 3089349,
at *6 (E.D. Cal. Nov. 5, 2025) (same).
IV. CONCLUSION
For the reasons discussed above, the Court ORDERS as follows:
(1) Petitioner’s petition for writ of habeas corpus is GRANTED;
(2) The Court ORDERS Respondents to provide Petitioner with a bond hearing
within ten days of this Order. At the hearing, the IJ may not deny Petitioner
bond on the basis that she is detained under 8 U.S.C. § 1225(b), but must find
by clear and convincing evidence that Petitioner is a flight risk or danger to
the community;
(3) Respondents are ORDERED to File a Notice of Compliance within ten days
of providing Petitioner with a bond hearing;
//
//
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(4) The Clerk of Court SHALL enter judgment in Petitioner’s favor and close
this case.
IT IS SO ORDERED.
Dated: January 5, 2026
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