Karidjatou v. Unknown Party et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Sidibe Karidjatou,
Petitioner,
v.
Unknown Party, et al.,
Respondents.
No. CV-26-01826-PHX-DJH (ASB)
REPORT AND RECOMMENDATION
TO THE HONORABLE DIANE J. HUMETEWA, UNITED STATES DISTRICT
JUDGE:
Pending before the Court is pro se Petitioner Sidibe Karidjatou’s Petition Under 28
U.S.C. § 2241 for a Writ of Habeas Corpus by a Person in Federal Custody (Doc. 1)1, filed
on March 16, 2026. Petitioner is detained at Eloy Detention Center and seeks immediate
release from immigration custody. (Id. at 11.) 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 Ivory Coast who entered the United States without inspection on December 23,
2024. (Doc. 1 at 2.) United States Customs and Border Protection (“CBP”) officers
encountered Petitioner at approximately 11:45pm on December 23, 2024, about eleven
miles northeast of San Luis, Arizona. (Doc. 9 at 1; Doc. 9-1 at 2-3.) Petitioner was
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-26-01826-PHX-DJH (ASB).
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apprehended within a group of fourteen individuals. (Doc. 9-1 at 2.) Petitioner has
remained in Immigration and Customs Enforcement (“ICE”) detention since December 26,
2024. (Doc. 1 at 2.) While not included in the record before this Court, Petitioner at some
point during her detention claimed fear of returning to her home country and applied for
asylum. (See id. at 3; Doc. 1 at 6.) An asylum officer found Petitioner demonstrated a
credible fear of persecution or torture. (Doc. 9-2 at 1.) Petitioner was charged as violating
§ 212(a)(7)(A)(i)(I) of the Immigration and Nationality Act (“INA”), as an alien not in
possession of valid immigration documents, and considered subject to removal from the
United States pursuant to § 212(a)(6)(A)(i) of the INA as an “alien present in the United
States without being admitted or paroled[.]” (Doc. 9 at 1-2; Doc. 9-2 at 1.) Petitioner was
issued a Notice to Appear before an immigration judge (“IJ”) on February 6, 2025. (Id.)
On September 29, 2025, an IJ denied Petitioner’s application for asylum,
withholding of removal, and protection under the Convention Against Torture. (Doc. 1 at
6; Doc. 9 at 2.) Petitioner filed an appeal of the IJ decision with the Board of Immigration
Appeals (“BIA”) on October 21, 2025. (Doc. 1 at 4, 15; Doc. 9 at 2.)
Petitioner filed a Petition in this Court on March 16, 2026, in which she contests her
detention pursuant to 28 U.S.C. § 2241. (Doc. 1.) Petitioner filed four claims in her Petition,
which were previously summarized by the Court as follows:
In Grounds One, Two, and Four Petitioner argues that [her] prolonged
detention violated due process. In Ground Three, Petitioner challenges [her]
conditions of confinement.
(Doc. 3 at 2.) This Court dismissed Ground Three of the Petition and ordered Respondent
to answer Grounds One, Two, and Four. (Id.) In Ground One, Petitioner asserts that she
has been in prolonged detention after she was denied asylum and her appeal with the BIA
is still pending. (Doc. 1 at 6.) Petitioner argues that she has “a confirmed address and
sponsor in Texas.” (Id.) In Ground Two, Petitioner argues her prolonged detention violates
“due process guaranteed by the [F]ifth [A]mendment.” (Id. at 7.) Petitioner contends that
she entered ICE custody on December 26, 2024, and has been in custody since with no
removal steps, and reiterates she has a sponsor in the United States. (Id.) In Ground Four,
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Petitioner argues that “being in detention also affect[s] [her] mental health[,]” causing her
to experience “stress, anxiety, [and] hopelessness.” (Id. at 9.) She maintains her “prolonged
detention is punitive and does not match with due process.” (Id.) Because the three
remaining claims Petitioner pleads all raise the same substantive issue, i.e., that her
prolonged detention violates her due process rights, undersigned will address them
together. (See Doc. 1 at 6-8.)
Respondent Eric Rokosky2 filed a Response to Petition for Writ of Habeas Corpus
on April 13, 2026. (Doc. 9.) In his Response, Respondent argues that the Petition should
be denied because Petitioner’s detention as an applicant for admission is lawful. (Id. at 2.)
Respondent asserts that Petitioner is subject to mandatory detention and does not have an
administratively final order of removal. (Id.) Respondent argues that Petitioner, as a
noncitizen who was apprehended close to the border “cannot be said to have effected an
entry” and thus must be considered “like an alien detained after arriving at a port of entry.”
(Id. at 4) (citing Dep’t of Homeland Sec. v. Thuraissigiam, 591 U.S. 103, 140 (2022)).
Respondent also cites to this Court’s order in Echevarria v. Bondi, and asserts the facts in
Petitioner’s case differ from those in Echevarria. (See id.) (citing Echevarria v. Bondi, No.
CV-25-03252-PHX-DWL (ESW), 2025 WL 2821282, at *4-9 (D. Ariz. Oct. 3, 2025),
appeal dismissed, No. 25-7569, 2026 WL 595586 (9th Cir. Jan. 13, 2026)). Finally,
Respondent argues that Petitioner, as a noncitizen detained pursuant to 8 U.S.C. §
1225(b)(2)(A), does not have a “protected liberty interest in freedom from detention” and
is thus “not entitled to procedural due process protections.” (Doc. 9 at 5.)
Petitioner has not filed a Reply with the Court, and the time for such Reply has now
elapsed.3 (See Doc. 3.)
2 Petitioner initially named “Warden Eloy Detention Center” and “Corey A. Price, ICE
Phoenix Field Director” as Respondents. (See Doc. 1.) Pursuant to this Court’s March 19, 2026
Order, Eric Rokosky replaced Respondent “Warden Eloy Detention Center” and Respondent Price
was terminated as an improper Respondent. (See Doc. 3 at 2-3.)
3 Based on the Referral Order issued by this Court, Petitioner had 10 days from the date of
service of Respondent’s Answer to file a Reply. (Doc. 3 at 3.) Respondent filed his Answer
(“Response to Petition for Writ of Habeas Corpus”) on April 13, 2026 containing no proof of
service. (Doc. 12.) On April 24, 2026 undersigned issued an Order for Respondent to provide a
certificate of service of the Response on Petitioner. (Doc. 10.) On April 29, 2026, Respondent filed
a certificate of service indicating that the Response was mailed to the Petitioner on April 13, 2026.
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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).
Respondent does not dispute this Court’s jurisdiction over considering Petitioner’s
prolonged detention. (See Doc. 9.)
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
(Doc. 11.) Accordingly, based on the record before this Court, this Petition is now ripe for ruling.
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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.
Respondent asserts that Petitioner’s detention falls under § 1225(b)(2). (See Doc. 9
at 5.) 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.” Respondent argues that “Statutes and case law combine to
show that an alien is subject to detention under Section 1125(b)(2)(A) when, like Petitioner,
they enter without inspection and are apprehended shortly thereafter.” (Doc. 9 at 5). It
appears Respondent essentially concludes that because Petitioner is an arriving noncitizen,
her detention is justified indefinitely. (See id. at 2-5.) 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, 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.
//
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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.”)4
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
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 Karidjatou, 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.
4 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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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
(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
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remand from the Supreme Court in Jennings v. Rodriguez5, 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 the 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
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 Lopez6 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. Elridge7 test to assess whether prolonged detention has violated due process
5 583 U.S. at 281.
6 “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).
7 “[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
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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)).
Regarding the first factor, total length of detention, Petitioner has been in ICE
detention since she arrived in the United States on December 23, 2024. (Doc. 1 at 2.) Thus,
Petitioner has been detained for at least sixteen 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
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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(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 sixteen-month detention weighs towards granting a bond
hearing.
The second factor, likely duration of future detention, also weighs towards
Petitioner’s position. On September 29, 2025, an Immigration Judge denied Petitioner’s
asylum applications. (See Doc. 9 at 2.) Petitioner appealed that decision on October 21,
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.
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.
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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.”)
Furthermore, Petitioner pleads in her Petition that the “[d]etention conditions are
harming [her] health and ability to function. [She] experiences untreated health issues, pain
in the body, sleep deprivation, running stomach, tooth ache.” (Doc. 1 at 8.) Petitioner
asserts that she “ran from [her] country because [she] was going through inhuman treatment
and being detained for so long makes [her] go through stress, anxiety, hopelessness.” (Id.
at 9.) Petitioner’s pleadings about the conditions she faces at Eloy Detention Center
coupled with 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
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 Respondent
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. 9-2 at 1) (Petitioner was
found to have demonstrated a credible fear of persecution or torture).
Undersigned finally makes note of similarly situated petitioners. Based on the
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record before this Court, the United States CBP encountered Petitioner after she crossed
over the border, approximately eleven miles northeast of San Luis, Arizona. (See Doc. 9-1
at 2-3.) Courts appear to take into consideration when petitioners enter the United States
as an “arriving” noncitizen and immediately surrender to border patrol agents 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 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).
However, surrendering to border officials does not appear to be dispositive in
examining due process protections. See Doe v. Andrews, No. 1:25-CV-00333-JLT-HBK
(HC), 2026 WL 797694, at *1-12 (E.D. Cal. Mar. 23, 2026) (granting petitioner bond
hearing after conducting Matthews balancing test despite petitioner entering the United
States unlawfully and being apprehended by CBP officers); Singh v. Chestnut, No. 1:26-
CV-01858-TLN-SCR, 2026 WL 923809 (E.D. Cal. Apr. 6, 2026), report and
recommendation adopted, 2026 WL 1035055 (E.D. Cal. Apr. 16, 2026) (making no note
of whether petitioner entered the United States lawfully but granting a bond hearing after
petitioner was “stopped by” CBP officers based on lack of legal entry documents); Abdul-
Samed v. Warden of Golden State Annex Det. Facility, No. 1:25-CV-00098-SAB-HC, 2025
WL 2099343, at *1-9 (E.D. Cal. July 25, 2025) (granting petitioner bond hearing despite
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petitioner presenting CBP officers with fraudulent Danish passport). Although the
Petitioner in the instant case was detained by border patrol agents eleven miles away from
the border, this fact does not appear to change the due process analysis. See Rodriguez v.
Marin, 909 F.3d at 256 (expressing “grave doubts” that prolonged detention could not raise
constitutional concerns).
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.
B. Bautista8 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., Kilonga v. Rhodes, No. 26-CV-01302-PHX-DJH
(JFM), slip op. at 1-2 (D. Ariz. Mar. 19, 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
8 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 Kilonga, 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 a bond
hearing. While Petitioner requests immediate release from detention (see Doc. 1 at 11),
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 Under 28 U.S.C. § 2241
for a Writ of Habeas Corpus by a Person in Federal Custody (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 the 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 Petitioner 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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