Rafiei v. Unknown Party et al

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Reza Rafiei,
Petitioner,
v.
David R Rivas, et al.,
Respondents.
No. CV-26-00498-PHX-RM
ORDER
Petitioner Reza Rafiei challenges his immigration detention under 28 U.S.C. § 2241.
(Doc. 1.) Magistrate Judge Deborah M. Fine filed a Report and Recommendation (“R&R”)
(Doc. 18), recommending that the Court deny the Petition. (Doc. 18.) The R&R finds that
Petitioner is subject to mandatory detention under 8 U.S.C. § 1225(b) and cannot challenge
the length of that detention under Zadvydas v. Davis, 533 U.S. 678 (2001), or the Due
Process Clause of the Fifth Amendment. (Id.)
Following issuance of the R&R, Petitioner filed a Status Report of Merits Hearing,
in which he avers that on April 1, 2026, an immigration judge granted him withholding of
removal under the Convention Against Torture. (Doc. 19.) Petitioner then filed two
Objections to the R&R. (Docs. 20, 21.) In the first Objection, Petitioner argues that his
detention has become unconstitutionally prolonged in violation of the Fifth Amendment.
(Doc. 20.) In the second Objection, Petitioner avers that he appealed the immigration
judge’s April 1, 2026 denial of asylum to the Board of Immigration Appeals. (Doc. 21.)
He also contends that he was previously paroled into the United States under 8 U.S.C. §
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1226(a), and that he is being falsely detained under § 1225(b). (Id.)
I. Background
Petitioner is a native and citizen of Iran who crossed the border without inspection
on March 12, 2025, was detained by immigration officials that same day, and has remained
in immigration detention since. (Doc. 1 at 5-7; Doc. 13 at 2; Doc. 13-1 at 1.) Petitioner
was initially placed into expedited removal proceedings under 8 U.S.C. § 1225(b)(1), and
then placed into 8 U.S.C. § 1229a (Immigration and Nationality Act § 240) removal
proceedings on May 27, 2025, after an asylum officer determined that he demonstrated a
credible fear of persecution if he were removed to Iran. (Doc. 13 at 2.)
Petitioner’s Status Report and Objection indicate that on April 1, 2026, an
immigration judge ordered Petitioner removed but granted withholding of removal to Iran,
and that Petitioner’s appeal of the immigration judge’s decision is pending before the Board
of Immigration Appeals (“BIA”). (Docs. 19, 21.)
II. Standard of Review
A district judge must “make a de novo determination of those portions” of a
magistrate judge’s “report or specified proposed findings or recommendations to which
objection is made.” 28 U.S.C. § 636(b)(1). The district judge “may accept, reject, or
modify, in whole or in part, the findings or recommendations made by the magistrate
judge.” Id.
III. Discussion
After the entry of a final removal order, there is a 90-day period during which the
alien ordered removed must be detained. 8 U.S.C. § 1231(a)(2)(A). If removal does not
occur during that 90-day period, further detention is statutorily authorized, 8 U.S.C. §
1231(a)(6), but if detention becomes prolonged and there is no significant likelihood of
removal in the reasonably foreseeable future, the alien should be released. Zadvydas, 533
U.S. at 701. The Court’s holding in Zadvydas is confined to § 1231(a)(6). Jennings v.
Rodriguez, 583 U.S. 281, 298 (2018).
Based on Petitioner’s Status Report and Objection, it appears that an immigration
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iudge ordered Petitioner removed on April 1, 2026, but that the removal order is not final
because an appeal before the BIA is pending. See 8 U.S.C. § 1101(a)(47)(B) (an
immigration judge’s removal order becomes final upon affirmation by the BIA or upon the
expiration of the period for seeking review by the BIA). Accordingly, the record does not
indicate that Petitioner is being detained pursuant to 8 U.S.C. § 1231, and the Court agrees
with the R&R that Zadvydas is inapplicable. See Jennings, 583 U.S. at 298.
Petitioner states in his second Objection that he was previously paroled into the
United States under § 1226(a). (Doc. 21.) However, that statement is inconsistent with
the Petition, which alleges that Petitioner has been held in immigration detention since he
entered the United States in March 2025. (Doc. 1 at 6.) No evidence in the record indicates
that Petitioner was paroled into the United States. Given that Petitioner was detained on
the day he entered the United States, and he concedes he is an applicant for admission
(Doc. 15 at 2), the Court agrees with the R&R that Petitioner is subject to mandatory
detention under 8 U.S.C. § 1225.
However, the Court disagrees with the R&R that Petitioner cannot raise a due
process challenge to the length of his detention. In evaluating Petitioner’s due process
claim, the Court asks “whether there exists a liberty or property interest of which a person
has been deprived, and if so . . . whether the procedures followed by the [government] were
constitutionally sufficient.” Swarthout v. Coke, 562 U.S. 216, 219 (2011). “A liberty
interest may arise from the Constitution itself[.]” Wilkinson v. Austin, 545 U.S. 209, 221
(2005). “Freedom from imprisonment—from government custody, detention, or other
forms of physical restraint—lies at the heart of the liberty that the [Due Process] Clause
protects.” Zadvydas, 533 U.S. at 690.
The R&R relies on Department of Homeland Security v. Thuraissigiam, 591 U.S.
103 (2020), to conclude that Petitioner’s due process rights are limited to those provided
by statute. (Doc. 18 at 7-8.) Thuraissigiam held that applicants for admission have “only
those rights regarding admission that Congress has provided by statute.” 591 U.S. at 140.
In Thuraissigiam, the respondent attempted to invoke the writ of habeas corpus “to obtain
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additional administrative review of his asylum claim and ultimately to obtain authorization
to stay in this country.” Id. at 107. In contrast, here, Petitioner invokes the writ for its
traditional purpose: “a means to secure release from unlawful detention.” Id. (emphasis in
original). Petitioner does not seek review of the merits of his immigration proceedings or
authorization to stay in this country. He simply seeks a bond hearing or release from
detention that he contends has become unconstitutionally prolonged. Neither a bond
hearing nor release equates to admission. See Rincon v. Hyde, 810 F. Supp. 3d 101, 107
(D. Mass. 2025) (noting that, if a petitioner were released following a bond hearing, the
petitioner “will be subject to the same removal proceedings as before, with no new right to
remain”). Because “Petitioner does not purport to invoke any ‘rights regarding
admission,’” id. at 110, Thuraissigiam does not preclude Petitioner from challenging the
constitutionality of his detention. See D.V.D. v. U.S. Dep’t of Homeland Sec., No. CV 25-
10676-BEM, 2026 WL 521557, at *28–31 (D. Mass. Feb. 25, 2026); Sadeqi v. LaRose,
809 F. Supp. 3d 1090, 1092-93 (S.D. Cal. Nov. 12, 2025); Padilla v. U.S. Immigr. &
Customs Enf’t, 704 F. Supp. 3d 1163, 1170–72 (W.D. Wash. 2023). Neither does Jennings
v. Rodriguez foreclose habeas relief in this case. In Jennings, the Supreme Court found
that “§§ 1225(b)(1) and (b)(2) “mandate detention of aliens throughout the completion of
applicable proceedings[.]” 583 U.S. at 302. But the Court analyzed only the meaning of
the statutory language and expressly declined to consider the constitutionality of such
mandatory detention. See id. at 312; see also Kydyrali v. Wolf, 499 F. Supp. 3d 768, 770-
73 (S.D. Cal. Nov. 4, 2020); Banda v. McAleenan, 385 F. Supp. 3d 1099, 1105-06 (W.D.
Wash. June 12, 2019).
Having concluded that Petitioner possesses a liberty interest in freedom from
detention, the Court must decide what process is due. Courts in this circuit and beyond
have grappled over what test should be used to determine whether procedural due process
requires relief for a noncitizen held pursuant to § 1225(b). See Doe v. Andrews, 1:25-cv-
00333-JLT-HBK, at *15–17 (E.D. Cal. Mar. 23, 2026) (applying the 3-factor Lopez test);
see also Galkin v. Scott, No. 2:26-cv-00530-TLF, 2026 U.S. Dist. LEXIS 46838, at *7
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(W.D. Wash. Mar. 6, 2026) (applying the 6-part Banda test) (citing Banda v. McAleenan,
385 F. Supp. 3d 1099, 1118 (W.D. Wash. 2019)); Leonteva v. Noem, No. 4:26-cv-00043-
SEB-KMB, 2026 U.S. Dist. LEXIS 52217, at *22 (S.D. Ind. Mar. 13, 2026) (applying the
same 6-factor test, but calling it the Jamal A test) (citing Jamal A. v. Whitaker, 358 F. Supp.
3d 853, 858–59 (D. Minn. 2019)); L.S. v. Warden, Otay Mesa Det. Ctr., No. 25-cv-3598-
LL-BJW, 2026 U.S. Dist. LEXIS 10299, at *11–15 (S.D. Cal. Jan. 20, 2026) (applying the
3-part Mathews v. Eldridge test) (citing Mathews, 424 U.S. at 335).
Out of the abovementioned tests, the Court finds the Banda test the most appropriate
to the situation in this matter. Under the Banda test, the Court considers 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.
Banda, 385 F. Supp. 3d at 1118.
The Court finds the Banda test more suitable than the Mathews1 and Lopez2 tests.
Beginning with Mathews, the Court concurs with other district courts that have found that
“while the Mathews factors may be well-suited to determining whether due process
requires a second bond hearing, they are not particularly dispositive of whether prolonged
mandatory detention has become unreasonable in a particular case.” Lopez, 631 F. Supp.
3d at 879. Put differently, the Mathews test is apt where the question is whether an
administrative procedure provided is “constitutionally sufficient,” but “[i]t does not resolve
1 Under the Mathews test, the Court considers:
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, 424 U.S. at 335.
2 Under the Lopez test, “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, 631 F. Supp. 3d at 879.
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the more fundamental issue of whether any procedure—such as a bond hearing—must be
provided.” Banda, 385 F. Supp. 3d at 1106–07.3
Turning next to the Lopez test, the Court notes that this test “concern[s] due process
challenge[s] to mandatory detention under § 1226(c), [and is], in essence, a truncated
version of the factors enumerated in Banda[.]” Andrews, 1:25-cv-00333-JLT-HBK, at *14.
Because the six-factor Banda test is more detailed than Lopez and is better suited for
noncitizens held pursuant to § 1225(b), the Court accordingly elects to apply the Banda
test.
A. Length of Detention
The first Banda factor is the length of detention, “which is the most important
factor.” Banda, 385 F. Supp. 3d at 1118. “It is important to bear in mind the context: The
detention that is being examined here is the detention of a human being who has never been
found to pose a danger to the community or to be likely to flee if released.” Id. (quoting
Jamal A., 358 F. Supp. 3d at 859). Where a petitioner’s current detention exceeds a six-
month threshold the “detention[] become less and less reasonable.” Haidari v. Immigr. &
3 In any event, the outcome applying Mathews and Banda would be the same—i.e.,
Petitioner would be entitled to an individual bond hearing. Applying the first Mathews
element, the undersigned finds that Petitioner has a strong private interest in his liberty
from prolonged civil detention. See Hernandez v. Sessions, 872 F.3d 976, 993 (9th Cir.
2017) (“As to the first factor, the private interest at issue here is ‘fundamental’: freedom
from imprisonment is at the ‘core of the liberty protected by the Due Process Clause.’”)
(quoting Foucha v. Louisiana, 504 U.S. 71, 80 (1992)).
Turning to the second element, considering the prolonged nature of Petitioner’s
detention, the Court finds a large risk of erroneous deprivation in the absence of an
individualized bond hearing. See Rodriguez v. Robbins, 715 F.3d 1127, 1144 (9th Cir.
2013) (noting that the discretionary parole system envisioned under the Immigration and
Naturalization Act is insufficient “to overcome the constitutional concerns raised by
prolonged mandatory detention”). Hence, an individualized bond hearing would greatly
mitigate the risk of a continued constitutional violation.
Finally, regarding the third Mathews factor, the government interest in detaining
Petitioner without an individualized bond hearing is low. First, “[p]roviding petitioner with
a bond hearing would not impede respondents’ interest in effecting removal or protecting
the public, as the purpose of the bond hearing is to determine whether petitioner is a danger
or flight risk.” Jensen v. Garland, No. 5:21-CV-01195-CAS (AFM), 2023 WL 3246522,
at *6 (C.D. Cal. May 3, 2023). Second, the fiscal burden of providing an individualized
bond hearing is low. See Abduraimov v. Andrews, No. 1:25-CV-00843-EPG-HC, 2025 WL
2912307, at *7 (E.D. Cal. Oct. 14, 2025) (“Courts generally have found that the cost of
providing a bond hearing is relatively minimal, and there is nothing in the record before
this Court demonstrating that providing Petitioner with a bond hearing would be fiscally
or administratively burdensome.”).
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Customs Enf’t Field Off. Dir., No. 2:26-cv-00039-TL, 2026 U.S. Dist. LEXIS 56882, at *8
(W.D. Wash. Mar. 18, 2026) (quoting L.B.O.M. v. Hermosillo, No. 2:25-cv-02695-GJL,
2026 U.S. Dist. LEXIS 21291, at *8 (W.D. Wash. Feb. 2, 2026)).
Here, Petitioner has been detained for over fourteen months. This is well beyond
the six-month threshold, and beyond the length of confinement other courts have found to
be prolonged. See, e.g., Kadir v. Larose, No. 25cv1045-LL-MMP, 2025 U.S. Dist. LEXIS
203614, at *13 (S.D. Cal. Oct. 15, 2025) (noting that 13 months without a bond hearing is
prolonged); cf. Banda, 385 F. Supp. 3d at 1118 (“Petitioner has been in detention for
approximately 17 months, which is a very long time.”). In light of these decisions, and
based upon the facts of the instant action, the Court finds the length of Petitioner’s detention
strongly favors granting relief.
B. Likely Duration of Future Detention
The second factor requires the Court to “consider[] how long the detention is likely
to continue absent judicial intervention; in other words, the anticipated duration of all
removal proceedings—including administrative and judicial appeals.” Banda, 385 F.
Supp. 3d at 1119 (internal quotation marks omitted). “When the alien’s removal
proceedings are unlikely to end soon, this suggests that continued detention without a bond
hearing is unreasonable.” Akmal v. Warden of Cal. City Det., No. 1:25-CV-01921-DC-
DMC-HC, 2026 WL 657606, at *7 (E.D. Cal. Mar. 9, 2026) (quoting German Santos v.
Warden Pike Cnty. Corr. Facility, 965 F.3d 203, 211 (3d Cir. 2020)).
While the length of future detention is uncertain considering Petitioner’s pending
appeal before the BIA, the Court finds that the likely duration of future detention is
sufficiently lengthy for this factor to favor Petitioner. See Kadir, 2025 U.S. Dist. LEXIS
203614, at *8 (“Petitioner’s future detention can last several more months or even years
during the adjudication of Respondents’ appeal to the BIA.”).
C. Conditions of Detention
The third factor requires the Court to consider the conditions of the petitioner’s
confinement. Banda, 385 F. Supp. 3d at 1119. “The more that the conditions under which
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the noncitizen is being held resemble penal confinement, the stronger his argument that he
is entitled to a bond hearing.” Id. (internal alteration marks omitted).
Here, the parties provide little information concerning Petitioner’s conditions of
confinement. However, Petitioner contends that his continued detention “has severely
worsened [his] mental and physical health.” (Doc. 17 at 1; see also Doc. 15 at 3.) He avers
that he suffers from mental and physical issues requiring medical treatment, and that further
detention “poses a substantial risk to [his] physical and psychological well-being.” (Doc.
15 at 3; see also Doc. 17 at 1.) Based on Petitioner’s averment that his detention is
exacerbating his mental and physical conditions and he is not receiving necessary medical
and psychological treatment in custody, the Court finds that the third Banda factor weighs
in favor of Petitioner.
D. Delays in Removal Proceedings
Next, the Court shall analyze the “fourth and fifth [Banda] factors—both [of] which
consider delays caused by the parties—together.” Maliwat v. Scott, No. 2:25-CV-00788-
TMC, 2025 WL 2256711, at *6 (W.D. Wash. Aug. 7, 2025).
The fourth factor requires the Court to consider the nature and extent of any delays
caused by Petitioner. “Courts should be sensitive to the possibility that dilatory tactics by
the removable noncitizen may serve not only to put off the final day of deportation, but
also to compel a determination that the noncitizen must be released because of the length
of his incarceration.” Banda, 385 F. Supp. 3d at 1119 (internal quotation and alteration
marks omitted). Respondents do not contend Plaintiff has caused any delays in this action.
Consequently, this factor is neutral.
The fifth factor considers the delays in removal caused by the government. Banda,
385 F. Supp. 3d at 1120. “[I]f immigration officials have caused delay, it weighs in favor
of finding continued detention unreasonable . . . Continued detention will also appear more
unreasonable when the delay in proceedings was caused by the immigration court or other
non-ICE government officials.” Galkin, 2026 U.S. Dist. LEXIS 46838, at *11 (quoting
Sajous v. Decker, No. 18-CV-2447 (AJN), 2018 WL 2357266, at *10–11 (S.D.N.Y. May
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23, 2018)). There is no indication that immigration officials have caused delay in
Petitioner’s case. Therefore, the fifth factor is also neutral.
E. Likelihood of Removal
The final Banda factor requires the Court to consider “the likelihood that the final
proceedings will culminate in a final order of removal.” Banda, 385 F. Supp. 3d at 1120.
“[W]here a noncitizen has asserted a good faith challenge to removal, ‘the categorical
nature of the detention will become increasingly unreasonable.’” Id. (quoting Sajous, 2018
WL 2357266, at *11).
Here, Petitioner has not established that he is likely to prevail in his appeal before
the BIA. However, Petitioner avers that he has been granted withholding of removal to
Iran, and there is no indication that Respondents will be able to successfully remove
Petitioner to a third country. The Court accordingly finds that the final Banda factor
slightly favors Petitioner.
In sum, four of the Banda factors favor Petitioner, and two are neutral. The Court
accordingly finds that Petitioner’s prolonged detention under § 1225(b)(2) has become
unreasonable.
F. Remedy
Where a noncitizen’s detention under § 1225(b)(2) has become unreasonable, the
proper remedy is an individualized bond hearing before a neutral immigration judge. See
Galkin, 2026 U.S. Dist. LEXIS 46838, at *12 (finding that “there is no authority”
supporting relief in the form of immediate release, but there is authority supporting relief
in the form of a bond hearing) (cleaned up); see also Lopez, 631 F. Supp. 3d at 882 (“The
Court finds, consistent with other post-Jennings cases, that the appropriate remedy is a
bond hearing before an immigration judge rather than immediate release.”); Kaur v. Lyons,
2:26-cv-00217-KML, at *1 (D. Ariz. Apr. 9, 2026) (adopting the magistrate judge’s
recommendations for a 1225(b)(2) petitioner and granting a bond hearing). At the bond
hearing, Respondents bear the burden of proving that Petitioner is a danger or flight risk
by clear and convincing evidence. Singh v. Holder, 638 F.3d 1196, 1203–05 (9th Cir.
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2011).
Accordingly,
IT IS ORDERED:
1. The Report and Recommendation (Doc. 18) is partially adopted and
partially rejected, as set forth above.
2. The Petition (Doc. 1) is granted as to Petitioner’s request for a bond hearing,
and denied as to Petitioner’s request for immediate release.
3. Petitioner shall receive a bond hearing within seven (7) days of the date this
Order is filed. The bond hearing shall comport with the procedural
requirements of Singh v. Holder, 638 F.3d 1196 (9th Cir. 2011). There must
be a contemporaneous record of the hearing, and the Government bears the
burden of proving by clear and convincing evidence that Petitioner is a flight
risk or danger to the community. In the alternative, the Government shall
immediately release Petitioner under appropriate conditions of release.
4. Respondents shall file a notice of compliance within two (2) days of
Petitioner’s bond hearing or release.
5. Petitioner’s Motions for Hearing (Docs. 16, 17) are denied as moot.
6. The Clerk of Court is directed to enter judgment in Petitioner’s favor and
close this case.
Dated this 19th day of May, 2026.
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