Zinaida v. Unknown Party et al

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Krylosova Zinaida,
Petitioner,
v.
Todd M Lyons, et al.,
Respondents.
No. CV-26-02866-PHX-RM (MTM)
ORDER
Petitioner Krylosova Zinaida challenges her immigration detention under 28 U.S.C.
§ 2241, arguing that her prolonged detention without a bond hearing violates due process.
(Doc. 1.) For the reasons that follow, the Court will grant the § 2241 Petition and order
Respondents to provide Petitioner with a bond hearing.
I. Background
Petitioner is a native and citizen of Russia who was detained by the United States
Border Patrol on November 18, 2024, after crossing into the United States from Mexico
without being admitted or paroled. (Doc. 1 at 2; Doc. 11 at 1.) Petitioner has been
continuously detained since that date. (Doc. 1 at 2.)
Petitioner was initially processed for expedited removal under 8 U.S.C. §
1225(b)(1). (Doc. 11 at 1; Doc. 11-2.) After an asylum officer made a positive finding of
a credible fear of persecution or torture, Petitioner was served on December 13, 2024, with
a Notice to Appear charging her with removability as an alien present without admission
or parole and as an immigrant without valid entry documents. (Doc. 1 at 2; Doc. 11 at 1-
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2; Doc. 11-3; Doc. 11-4.) Petitioner applied for asylum, withholding of removal, and
protection under the Convention Against Torture. (Doc. 1 at 2.) On July 17, 2025, an
immigration judge denied Petitioner’s applications and ordered her removed to Russia.
(Doc. 1 at 3; Doc. 11 at 2; Doc. 11-5.) Petitioner appealed the ruling to the Board of
Immigration Appeals (“BIA”), and her appeal remains pending. (Doc. 1 at 3; Doc. 11 at
2.)
II. Discussion
Respondents argue that Petitioner’s detention without a bond hearing is
constitutional and statutorily mandated by 8 U.S.C. § 1225. (Doc. 11 at 2-5.) The Court
agrees that Petitioner is subject to mandatory detention under § 1225. However, the Court
rejects Respondents’ argument that Petitioner has no constitutional right to a bond hearing.
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 [Fifth Amendment’s Due Process] Clause protects.” Zadvydas, 533
U.S. at 690.
In Department of Homeland Security v. Thuraissigiam, the United States Supreme
Court held that applicants for admission have “only those rights regarding admission that
Congress has provided by statute.” 591 U.S. 103, 140 (2020) (emphasis added). In
Thuraissigiam, the respondent attempted to invoke the writ of habeas corpus “to obtain
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 her immigration proceedings or
authorization to stay in this country. She simply seeks a bond hearing or release from
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detention that she 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 her 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
(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-
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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
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
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.
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 her 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)).
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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. &
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 eighteen 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
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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203614, at *13 (S.D. Cal. Oct. 15, 2025) (noting that thirteen 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 Petitioner’s
confinement. Banda, 385 F. Supp. 3d at 1119. “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.” Id. (internal alteration marks omitted).
Here, the parties provide little information concerning Petitioner’s conditions of
confinement. However, Petitioner avers that she “suffers from ongoing medical and
psychological conditions that are exacerbated by prolonged detention”; that she “has
experienced panic attacks, anxiety, ongoing physical weakness,” deteriorating eyesight,
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and “constant stomachaches”; that her detention has “caused significant deterioration in
her physical and mental health,” and that continued detention places her “at heightened risk
of serious and irreparable harm.” (Doc. 1 at 4.) Based on Petitioner’s averment that her
detention is causing a deterioration in her mental and physical condition, 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). Petitioner avers that she has consistently cooperated with all immigration
authorities and proceedings (Doc. 1 at 3), and 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 the 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 23, 2018)). It is unclear whether immigration officials have caused delay
in Petitioner’s case or whether the BIA has delayed adjudication of Petitioner’s appeal.
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
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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, the likelihood of Petitioner prevailing in her appeal before the BIA is unclear.
Accordingly, the final Banda factor is neutral.
In sum, three of the Banda factors favor Petitioner, including one that strongly
favors her, and three factors 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.
2011).
Accordingly,
IT IS ORDERED that 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.
IT IS FURTHER ORDERED that 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
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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.
IT IS FURTHER ORDERED that Respondents shall file a notice of compliance
within two (2) days of Petitioner’s bond hearing or release. The notice of compliance shall
state the result of Petitioner’s bond hearing, if applicable.
IT IS FURTHER ORDERED that the Clerk of Court is directed to enter judgment
in Petitioner’s favor and close this case.
Dated this 3rd day of June, 2026.
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