Iusipova v. Unknown Party et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Iuliia Iusipova,
Petitioner,
v.
Unknown Party et al.,
Respondents.
No. CV-26-01129-PHX-AMM (ASB)
REPORT AND RECOMMENDATION
TO THE HONORABLE ANGELA M. MARTINEZ, UNITED STATES DISTRICT
JUDGE:
Pending before the Court is pro se Petitioner Iuliia Iusipova’s Petition for Writ of
Habeas Corpus Pursuant to 28 U.S.C. § 2241 (Doc. 1)1, filed on February 17, 2026.
Petitioner is detained at San Luis Regional Detention Center and seeks release from
immigration custody or a bond hearing. (Id. at 6.) 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.2 (See Docs. 1, 12.) Petitioner
is a citizen of Russia who entered the United States on January 1, 2025 through the
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-26-01129-PHX-AMM
(ASB).
2 Respondents refer to Petitioner’s name as “Hazvineyi Leonah Chibisa” in their Response.
(See Doc. 12 at 1.) This name does not appear otherwise in the Petition or accompanying
documents and thus appears to be erroneous. (See Docs. 1, 12.) However, all other facts listed by
Respondents in their Response are consistent with those listed by Petitioner in her Petition. (See
id.)
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Calexico, California, Port of Entry with her husband, Rustam Iusipov. (Doc. 1 at 5, 26;
Doc. 12 at 1-2.) Petitioner pleads in her Petition that she entered pursuant to an appointment
scheduled through the CBP One Application. (Id.) Removal proceedings began the next
day on January 2, 2025, upon the filing of 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”). (Id.) On January 13, 2025, Petitioner admitted to the factual
allegations, conceded removability, filed an application for asylum, and requested
withholding of removal and protection under the Convention Against Torture (“CAT”).
(Id.)
An immigration judge (“IJ”) held an individual merits hearing on July 28, 2025, for
both Petitioner and her husband. (Doc. 1 at 5, 26.) The IJ found Mr. Iusipov’s testimony
credible and consistent with his handwritten declaration and supporting evidence, but
concluded that the harm he described did not rise to the level of persecution. (Id. at 28.)
The IJ also found that Mr. Iusipov’s fear of return was subjectively genuine but not
objectively reasonable. (Id.) Accordingly, the IJ denied withholding removal under INA §
241(b)(3) and CAT protection. (Id. at 29.) The IJ denied all applications for relief and
ordered Petitioner and her husband removed to Russia. (Id.) Petitioner filed an appeal
before the Board of Immigration Appeals (“BIA”) on August 13, 2025, which remains
pending. (Id. at 6.)
Petitioner filed a form Petition in this Court on February 17, 2026, in which she
contests her detention pursuant to 28 U.S.C. § 2241. (Doc. 1.) The Court previously
summarized Petitioner’s arguments as follows:
Petitioner asserts that her prolonged detention is unlawful, unjustified,
violates her Fifth Amendment right to due process, and has become
unreasonably excessive and punitive in violation of Zadvydas v. Davis, 533
U.S. 678 (2001) . . . . She also claims that she was unlawfully detained and
charged with “illegally crossing the border” while utilizing the CBP One
mobile application.3
3 Petitioner claims the CBP One application is “a [United States] government-approved,
legitimate tool for crossing the border.” (Doc. 1.)
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(Doc. 3 at 2.) Petitioner also includes exhibits in her Petition where she provides, inter alia:
a screenshot of her CBP One Port of Entry appointment on January 1, 2025; an email
confirming her CBP One Port of Entry appointment; Petitioner’s (and her husband’s) BIA
Appeal; and the Oral Decision by the Immigration Judge regarding Petitioner’s asylum
claim. (See Doc. 1 at 19-21, 24-49, 54-64.) Petitioner requests the following relief: (1)
immediate release from Immigration and Customs Enforcement (“ICE”) custody or (2) a
prompt and meaningful bond hearing.4 (Doc. 1 at 6.)
Pursuant to this Court’s Referral Order on February 24, 2026, undersigned was
referred this matter for further proceedings and a report and recommendation in accordance
with Rules 72.1 and 72.2 of the Local Rules of Civil Procedure (“LRCiv”). (Doc. 3.) On
March 13, 2026, Petitioner filed an “Emergency Motion for Temporary Restraining Order
and Preliminary Injunction” requesting that this Court prohibit Respondents from
transferring Petitioner outside this judicial district or removing Petitioner from the U.S.
while the Petition is pending.5 (Doc. 10.)
Respondents San Luis Regional Detention Center Warden David R. Rivas; U.S.
Department of Homeland Security (“DHS”) Secretary Kristi Noem; U.S. Attorney General
Pam Bondi; and U.S. ICE Acting Director Todd Lyons (collectively, “Respondents”)6 filed
a Response to Petition for Writ of Habeas Corpus on March 23, 2026. (Doc. 12.) In their
Response, Respondents argue that the Petition should be denied because Petitioner’s
detention is statutorily authorized and constitutional. (Id. at 2-3.) Respondents assert that
Petitioner’s detention is lawful pursuant to Zadvydas v. Davis, 533 U.S. 678 (2001),
4 Petitioner handwrites in her Petition these two forms of relief. (See Doc. 1 at 6.) In addition,
the form Petition contains other requests for relief, including (1) assume jurisdiction over the
matter; (2) issue a Writ of Habeas Corpus, hold a hearing before this Court, determine that
Petitioner’s detention is not justified; (3) issue a Writ of Habeas Corpus and order Petitioner’s
release within 30 days unless Respondents schedule a hearing before an immigration judge; (4)
issue a declaration that Petitioner’s ongoing prolonged detention violates the Due Process Clause
of the Fifth Amendment; (5) award Petitioner’s costs and attorneys’ fees; and (6) grant further
relief as the Court deems just and proper. (Doc. 1 at 17.)
5 Petitioner appears to use male pronouns in her TRO Motion, but uses female pronouns in
all other filings with this Court. (See Docs. 1, 10.) Accordingly, this Court will continue to use
female pronouns in referring to Petitioner.
6 Petitioner initially named “the current or acting Field Officer Director of the Calexico Field
Office” in addition to the aforementioned Respondents (see Doc. 1), who was dismissed as a
Respondent pursuant to this Court’s Order on February 24, 2026. (See Doc. 3.)
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because Petitioner’s immigration appeal remains pending before the Board of Immigration
Appeals (“BIA”) and Petitioner is not subject to an administratively final order of removal.
(Id.) (relying on Jennings v. Rodriguez, 583 U.S. 281 (2018)). Respondents argue that
Petitioner is subject to mandatory detention as an applicant for admission. (Id.) According
to Respondents,
It is thus clear that the statute and applicable regulations require Petitioner’s
detention without bond through the completion of [her] removal proceedings.
Petitioner is thus statutorily ineligible for bond, and her detention is legal as
there is no final order of removal.
(Id. at 3.)
Petitioner has not filed a Reply with the Court, and the time for such Reply has now
elapsed.7 (See Doc. 3.)
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
7 Based on the Referral Order issued by this Court, Petitioner had 14 days from the date of
service of Respondents’ Answer to file a Reply. (Doc. 3 at 4.) Respondents filed their Answer
(“Response to Petition for Writ of Habeas Corpus”) on March 23, 2026 and included a Certificate
of Service to Petitioner, dated March 23, 2026. (Doc. 12.) Accordingly, based on the record before
this Court, this Petition became ripe for ruling 15 days later, on April 7, 2026.
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prolonged detention. (See Doc. 12.)
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. 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) and
undersigned sees no evidence to conclude otherwise. (See Doc. 12.) Pursuant to §
1225(b)(2)(A), a noncitizen who is not under a final removal order “shall be detained for a
proceeding under section 1229a8 of this title.” Respondents argue that “the statute and
applicable regulations require Petitioner’s detention without bond through the completion
of [her] removal proceedings” that Petitioner is “statutorily ineligible for bond” and that
“her detention is legal as there is no final order of removal.” (Doc. 12 at 3) (citing Jennings,
583 U.S. at 302). It appears Respondents essentially conclude that because Petitioner is an
arriving noncitizen, her detention is justified indefinitely. (See id.) Because at least one
District Judge of this District has disagreed with that position, undersigned assumes the
analysis does not end there and addresses Petitioner’s due process rights. 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).
//
8 Under section 1229a, an immigration judge shall conduct proceedings for deciding the
admissibility or deportability of an alien. The statute does not appear to advise or mandate further
detention following a section 1229a determination.
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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 developing body of caselaw addressing whether a bond hearing is available to
immigrants detained pursuant to 1225(b)(2). 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.”)9
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 Iusipova, 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.
9 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 v. Howard, 468 F. Supp. 3d 1156, 1177 (D. Ariz. 2020) (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 v. McAleenan, 385 F. Supp.
3d 1099, 1117 (W.D. Wash. 2019); (“[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
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detention) (collecting cases). Moreover, the Ninth Circuit expressed in the most recent
Rodriguez decision, following remand from the Supreme Court in Jennings v. Rodriguez10,
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,
including a recent order out of this District, in holding that a prolonged detention under §
1225(b) may eventually give rise to due process issues. See Avakian v. 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).
B. Banda Test (Whether Petitioner’s Detention Has Become Unreasonable)
Courts apply a multifactor test to determine whether § 1225(b) detention has
become unreasonable. 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 Lopez11 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. Elridge12 test to assess whether
10 583 U.S. at 281.
11 “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).
12 “[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
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prolonged detention has violated due process in 8 U.S.C. § 1226(c) context). Undersigned
will apply the Banda test based on a recent Report and Recommendation adoption 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 Mamedova v. Noem, No. CV-25-
04619-DWL-JZB, slip op. at 19 (D. Ariz. Apr. 2, 2026) (pending Report and
Recommendation applying the Banda test to a § 2241 detention challenge for § 1225(b)(1)
alien). 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 January 1, 2025. (Doc. 1 at 5; Doc. 12
at 1.) Thus, Petitioner has been detained for at least fifteen 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).
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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Accordingly, Petitioner’s over fifteen-month detention weighs towards granting a bond
hearing.
The second factor, likely duration of future detention, also weighs towards
Petitioner’s position. On July 28, 2025, an Immigration Judge denied Petitioner’s
applications for relief and ordered Petitioner removed to Russia. (Doc. 1 at 6, 26.)
Petitioner appealed that decision on August 13, 2025 and filed her appellate brief on
November 11, 2025, and that appeal is pending before the BIA. (Id. at 6, 25.) 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.”) While
undersigned will not “guess” how long the pending appeals may take to resolve, the fact
that Petitioner is near the beginning of her appeals process is instructive. 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 San Luis Regional Detention Center in
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Arizona. (See Docs. 1, 12.) This court has previously recognized that San Luis Regional
Detention Center is a medium-security facility operated by a private corrections company
LaSalle Corrections. See Cardin Alvarez v. Rivas, No. CV 25-02943 PHX GMS (CDB),
2025 WL 2898389, at *19 (D. Ariz. Oct. 7, 2025), report and recommendation adopted in
part, rejected in part sub nom. Alvarez v. Rivas, No. CV-25-02943-PHX-GMS, 2025 WL
2899092 (D. Ariz. Oct. 10, 2025). The facility houses immigration detainees awaiting trial,
deportation, and immigrants serving sentences following a criminal conviction. See id. The
facility allows no-contact visitation limited to one day per week, no electronic devices are
allowed, all visitors are searched, legal mail is inspected, and contact with legal counsel is
limited. Id. at n.21.
Petitioner’s form Petition includes general descriptions of the hardships that
individuals detained by ICE face. (See Doc. 1 at 9-10.) Although it contains no detailed
description of Petitioner’s specific hardships, the Petition does allege that “Petitioner is
held in a locked down facility with limited freedom of movement and access to Petitioner’s
family or support network.” (Id. at 9.) The Petition goes on to allege various conditions at
ICE facilities across the country. (See id. at 9-10.) Petitioner further alleges in the
handwritten portion of the Petition that her “continue[d] detention place the Petitioner’s
health at significant risk.” (Id. at 6.) While the Petition lacks specific descriptors on the
conditions she faces at San Luis Regional Detention Center, the surveillance at San Luis
and the oversight by a private correctional company resemble conditions of “penal
confinement” and therefore favor granting a bond hearing. See Banda, 385 F. Supp. 3d at
1119.
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 Respondents
have caused any delay in the removal proceedings. (See Docs. 1, 12.)
Under the sixth factor, the Court looks at the likelihood that the removal proceedings
will result in a final order of removal. The Court finds this factor is also neutral. See Banda,
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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. 1 at 25-49) (Petitioner’s BIA appeal
arguing that the IJ found her husband’s testimony credible, misapplied core asylum
standards, disregarded corroborated evidence, and substituted speculation for reasoned
analysis).
Undersigned finally makes note of similarly situated petitioners. Based on the
record before this Court, Petitioner made an appointment through the CBP One
Application, arrived at a U.S. port of entry on her appointment date, and immediately
surrendered herself to border officials claiming asylum. (See Docs. 1 at 19; 12.) Rather
than attempt to evade border enforcement, Petitioner and her husband cooperated with
officials. (Id.) 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 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).
//
//
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III. CONCLUSION AND REMEDY
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).
In addition to a bond hearing, Petitioner requests immediate release from detention.
(See Doc. 1.) Petitioner also requests the court “issue a declaration that Petitioner’s ongoing
prolonged detention violates the Due Process Clause of the Fifth Amendment” and that the
court award Petitioner costs and reasonably attorneys’ fees provided for by the Equal
Access to Justice Act, 28 U.S.C. § 2412. (See id. at 17.)
While 28 U.S.C. § 2412 does allow for an award of attorneys’ fees to a prevailing
party in a civil action against the United States, Petitioner does not provide support for this
position outside of the bare citation. (See Doc. 1.) Petitioner is pro se and does not provide
evidence to this Court of the attorneys’ fees expended or related costs. (See id.) Moreover,
courts in this Circuit have found in situations similar to Petitioner’s that a bond hearing
before an IJ 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).
Undersigned therefore recommends that the District Judge join other District Courts
in ordering that Petitioner be given a bond hearing before a neutral adjudicator that
complies with the requirements set forth in Singh v. Holder, 638 F.3d 1196 (9th Cir. 2011).
See, e.g., Banda, 385 F. Supp. 3d at 1121; Arechiga, 2023 WL 5207589, at *4-5; Sufiiarov,
2026 WL 26079, at *1, 5; Sadeqi, 809 F. Supp. 3d at 1093; Lopez, 631 F. Supp. 3d at 882-
883; Abdul-Samed, 2025 WL 2099343, at *7. Accordingly, 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). Finally, undersigned defers to the District Judge on the
pending Emergency Motion for Temporary Restraining Order and Preliminary Injunction
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(Doc. 10), but notes it would be moot upon disposition of the Petition.
RECOMMENDATION
Based on the foregoing,
IT IS THEREFORE RECOMMENDED that the Petition for Writ of Habeas
Corpus Pursuant to 28 U.S.C. § 2241 (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 her 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 she 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.
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
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recommendation. See Fed. R. Civ. P. 72.
Dated this 8th day of April, 2026.
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