NAZARI v. MULLIN (2026)

ORDER GRANTING IN PART AMENDED PETITION FOR WRIT OF HABEAS CORPUS

Petitioner Pouria Nazari is currently detained by U.S. Immigration and Customs Enforcement (“ICE”) at the Northwest ICE Processing Center (“NWIPC”) in Tacoma, Washington. Dkt. 1. The Court appointed counsel to represent Petitioner in this matter. Dkt. 6. Petitioner, through counsel, filed an Amended Petition, arguing his more than twenty-month-long mandatory detention without a constitutionally sufficient bond hearing is unlawful and is seeking a prompt, individualized bond hearing on that basis. Dkt. 16. Respondents to the Amended Petition include Markwayne Mullin (the Department of Homeland Security Secretary), Julio Hernandez (Acting Field Office Director for ICE's Seattle Field Office), Todd Blanche (U.S. Attorney General), and Bruce Scott (Warden of the NWIPC) (hereinafter “Respondents”).

Having considered the Parties’ submissions, the balance of the record, and the governing law, the Court GRANTS the Amended Petition (Dkt. 16) and ORDERS that Petitioner be provided a prompt, individualized bond hearing as set forth in the conclusion below.¹

I. FACTUAL BACKGROUND

Petitioner is a native and citizen of Iran who entered the United States on December 21, 2024, and was apprehended by United States Border Patrol upon arrival. Dkt. 16-1 at 1; Dkts. 12-1, 12-2. Petitioner was initially processed for expedited removal and has remained in immigration custody continuously since his apprehension.² Dkt. 12-2; Dkt. 16-1.

On February 14, 2025, Petitioner was issued a Notice to Appear charging him as removable under § 212(a)(7)(A)(i)(I) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(7)(A)(i)(I), and placing him in removal proceedings. Dkt. 11 at 2; Dkt. 12-3. On September 8, 2025, an Immigration Judge (“IJ”) denied Petitioner's applications for relief and ordered him removed to Iran. Dkt. 12-4. Petitioner timely appealed the removal order to the Board of Immigration Appeals (“BIA”) on October 1, 2025, and that appeal remains pending. Dkt. 11 at 3; see also Dkts. 16, 20.

On May 5, 2026, Petitioner received a bond hearing before IJ Tammy Fitting. Dkt. 11 at 4; Dkt. 12-5; Dkt. 16-1 at 4. The IJ concluded that she lacked jurisdiction to grant Petitioner bond and, alternatively, determined that Petitioner posed a flight risk. Dkt. 11 at 4; Dkt. 12-5; Dkt. 16-1 at 4. According to Petitioner, the hearing lasted approximately five minutes, and the IJ identified the existence of his removal order as the sole basis for finding him to be a flight risk. Dkt. 16-1 at 4. Petitioner states that he explained that his removal order was not final because his appeal remained pending, but the IJ dismissed this argument and concluded Petitioner could not meet his burden of demonstrating that he was not a flight risk in light of the removal order. Id. Petitioner further states that the IJ had not reviewed materials he submitted before the hearing bearing on his community ties and proposed living arrangement upon release. Id. at 3–4. Petitioner did not appeal the IJ's custody determination to the BIA. Dkt. 12-5.³

Petitioner remains detained at NWIPC and has now been continuously detained for more than twenty months. Dkt. 11 at 3; Dkt. 16-1 at 3.

II. PROCEDURAL BACKGROUND

Petitioner initiated this action pro se by filing a Petition for Writ of Habeas Corpus on June 1, 2026. Dkt. 1. Shortly thereafter, the Court granted Petitioner's Motion for Appointment of Counsel. Dkt. 6. Although afforded an opportunity to amend the Petition with the assistance of counsel, id., Petitioner initially elected not to do so and instead filed a counseled Traverse in support of his initial Petition. Dkt. 14.

In his Traverse, Petitioner suggested for the first time that he also intended to challenge the constitutional adequacy of the immigration bond hearing held on May 5, 2026. Dkt. 14 at 8–9. Upon review, however, the Court concluded that the Traverse did not clearly identify the constitutional claim being asserted, the factual basis for that claim, or its relationship to the claims presented in the operative Petition. Dkt. 15. Under these circumstances, the Court directed Petitioner either to show cause why the Court should not proceed solely on the claims asserted in his initial Petition or to file an amended petition clearly stating all claims for relief. Id.

Petitioner thereafter filed a counseled Amended Petition and supporting evidence. Dkts. 16, 16-1. Respondents filed a Return to the Amended Petition and supporting evidence. Dkts. 19, 20. Petitioner did not file a traverse by the required deadline but sought leave to do so after that deadline elapsed. Dkt. 21. Because this matter is resolvable on the existing briefing, Petitioner's Motion for Leave to File Traverse (Dkt. 21) is DENIED. Accordingly, the Amended Petition is ripe for the Court's consideration.

III. HABEAS STANDARD

Federal courts have authority to grant writs of habeas corpus to individuals in custody if such custody is a “violation of the Constitution or laws or treaties of the United States[.]” 28 U.S.C. § 2241(c)(3). “[T]he essence of habeas corpus is an attack by a person in custody upon the legality of that custody, and ․ the traditional function of the writ is to secure release from illegal custody.” Preiser v. Rodriguez, 411 U.S. 475, 484 (1973). To obtain habeas relief, habeas petitioners have the burden of demonstrating there is no lawful basis for their detention by a preponderance of the evidence. Davis v. Woodford, 384 F.3d 628, 638 (9th Cir. 2004); 28 U.S.C. § 2241(c).

IV. DISCUSSION

In his Amended Petition, Petitioner argues that his continued mandatory detention without a constitutionally adequate bond hearing violates the Fifth Amendment's guarantee of due process. Dkt. 16. Applying the multifactor framework set forth in Banda v. McAleenan, 385 F. Supp. 3d 1099 (W.D. Wash. 2019), Petitioner contends that his detention has become unconstitutionally prolonged and that he is therefore entitled to a constitutionally sufficient bond hearing. Id. at 5–11. Although Petitioner received a bond hearing in May 2026, he argues that the procedures afforded at that hearing fell considerably short of constitutional requirements and therefore cannot sustain his continued detention. Id. at 12. Petitioner further argues that, to the extent he was required to exhaust administrative remedies by appealing the IJ's bond denial to the Board of Immigration Appeals (“BIA”), exhaustion should be excused. Id. at 12–13.

Respondents disagree. They principally contend that Petitioner cannot challenge the May 2026 bond determination in this Court without first exhausting his available administrative remedies through the BIA. Dkt. 19 at 5–10. Respondents further argue that, even if exhaustion is excused, the May 2026 hearing provided Petitioner constitutionally adequate process and that application of the three-factor balancing test set forth in Mathews v. Eldridge, 424 U.S. 319 (1976), does not entitle him to an additional bond hearing. Id. at 10–13.

The Court agrees with Petitioner. As explained below, to the extent administrative exhaustion is required, the Court finds waiver appropriate under the unique circumstances presented here. The Court further finds that the May 2026 bond proceedings were constitutionally deficient and therefore did not provide the process necessary to sustain Petitioner's continued detention. Accordingly, the Court evaluates Petitioner's continued mandatory detention under the Banda framework and concludes that due process requires the Government to provide Petitioner a constitutionally adequate bond hearing. The Court therefore GRANTS the Amended Petition (Dkt. 16) and ORDERS the relief set forth in the conclusion below.

A. Subject Matter Jurisdiction

As noted, Respondents do not dispute the Court's jurisdiction to review Petitioner's claim that the IJ's alternative basis for denying bond based on flight risk was an abuse of discretion. See Dkt. 19. Nevertheless, because the Court has an independent obligation to assure itself of its subject-matter jurisdiction, the Court first confirms that Petitioner's claim is reviewable.

In general, the Court does not have jurisdiction to review discretionary bond decisions. On this point, 8 U.S.C. § 1226(e) provides that:

The Attorney General's discretionary judgment regarding the application of this section shall not be subject to review. No court may set aside any action or decision by the Attorney General under this section regarding the detention of any [noncitizen]4 or the revocation or denial of bond or parole.

“That provision does not, however, preclude habeas jurisdiction over constitutional claims or questions of law.” Hernandez v. Sessions, 872 F.3d 976, 987 (9th Cir. 2017) (cleaned up). “Claims that the discretionary bond process itself was constitutionally flawed are cognizable in federal court on habeas because they fit comfortably within the scope of [28 U.S.C.] § 2241.” Id. (cleaned up); Rodriguez Diaz v. Garland, 53 F.4th 1189, 1209 (9th Cir. 2022) (“Although the IJ's discretionary bond determination was not reviewable in federal court ․, we would have had jurisdiction under 28 U.S.C. § 2241 to consider any error of law in [a noncitizen's] agency proceedings, including any claimed due process violation.”). Accordingly, “a district court has jurisdiction to review an IJ's discretionary bond denial where that bond denial is challenged as legally erroneous or unconstitutional.” Kharis v. Sessions, Case No. 18-cv-04800-JST, 2018 WL 5809432, at *4 (N.D. Cal. Nov. 6, 2018) (collecting cases).

Reviewable claims of legal error include application of the incorrect legal standard, ignoring or “seriously mischaracterizing” important facts, and irrational or unfounded application of a legal standard to an established set of facts. Hinds v. Bondi, No. 24-1878, 2026 WL 122480, at *2 (2d Cir. Jan. 16, 2026); Soriano v. Hernandez, No. 2:26-CV-00900-DGE, 2026 WL 969764, at *6 (W.D. Wash. Apr. 10, 2026) (reviewing for abuse of discretion and granting relief where IJ supplied “no rationale” for bond denial decision and none could be discerned from the record).

Claims of constitutional injury, such as procedural due process violations, are also reviewable by a district court. W.T.M. v. Bondi, No. 2:25-CV-02428-RAJ-BAT, 2026 WL 262583, at *4 (W.D. Wash. Jan. 30, 2026) (applying Mathews v. Eldridge, 424 U.S. 319 (1976)). Even in the context of these reviewable errors, however, district courts may not “review underlying factual determinations such as the IJ's factfinding on credibility,” their “weighing of the evidence,” or the IJ's “logic ․ in drawing inferences” from the evidence. Hinds, 2026 WL 122480, at *2.

Here, Petitioner does not ask the Court to reweigh the evidence or independently determine whether he poses a flight risk. See Dkt. 16. Rather, he challenges the legal sufficiency of the IJ's determination that he posed a flight risk based solely on the existence of a removal order and the lack of any contemporaneous record of the hearing or the IJ's reasoning for that determination. Id. at 12. Petitioner's due process claim alleges a reviewable legal error rather than an unreviewable discretionary or factual determination and therefore falls squarely within the Court's habeas jurisdiction.

B. Exhaustion

Having confirmed its jurisdiction to review Petitioner's challenge to the IJ's bond denial decision, the Court next examines Respondents’ principal objection to this claim—whether the prudential exhaustion requirement precludes habeas review at this time. Dkt. 19 at 5–10. The Court finds that it does not.

“On habeas review under § 2241, exhaustion is a prudential rather than jurisdictional requirement.” Singh v. Holder, 638 F.3d 1196, 1203 n.3 (9th Cir. 2011). That is, the necessity of administrative exhaustion in § 2241 actions is governed by sound judicial discretion. McCarthy v. Madigan, 503 U.S. 140, 144 (1992), superseded by statutory amendment as noted in Booth v. Churner, 532 U.S. 731, 738 (2001). Nevertheless, “[p]rudential limits, like jurisdictional limits and limits on venue, are ordinarily not optional.” Castro-Cortez v. INS, 239 F.3d 1037, 1047 (9th Cir. 2001), abrogated on other grounds by Fernandez-Vargas v. Gonzales, 548 U.S. 30, 35–36, n.5 (2006).

To determine whether prudential exhaustion is appropriate, courts consider the following factors, often referred to as the Puga factors: (1) whether “agency expertise makes agency consideration necessary to generate a proper record and reach a proper decision,” (2) whether “relaxation of the requirement would encourage the deliberate bypass of the administrative scheme,” and (3) whether “administrative review is likely to allow the agency to correct its own mistakes and to preclude the need for judicial review.” Puga v. Chertoff, 488 F.3d 812, 815 (9th Cir. 2007) (quoting Noriega-Lopez v. Ashcroft, 335 F.3d 874, 881 (9th Cir. 2003)). That is, under the Puga factors, courts should require administrative exhaustion where it would aid in developing a more complete factual record for federal judicial review, prevent forum shopping, and conserve federal judicial resources by permitting agencies to correct their own mistakes where they are likely to do so.

Even if the Puga factors weigh in favor of prudential exhaustion, a petitioner may avoid the requirement by demonstrating that any one of the following Laing factors applies: (1) “administrative remedies are inadequate or not efficacious,” (2) “pursuit of administrative remedies would be a futile gesture,” (3) “irreparable injury will result,” or (4) “the administrative proceedings would be void.” Laing, 370 F.3d at 1000 (quoting S.E.C. v. G.C. George Sec., Inc., 637 F.2d 685, 688 (9th Cir. 1981)); see Aden v. Nielsen, No. 2:18-cv-1441-RSL, 2019 WL 5802013, at *2 (W.D. Wash. Nov. 7, 2019) (“The party moving the court to waive prudential exhaustion requirements bears the burden of demonstrating that at least one of these Laing factors applies.”) (citing Ortega-Rangel v. Sessions, 313 F. Supp. 3d 993, 1000 (N.D. Cal. 2018)).

In this case, even if exhaustion were required, waiver of that requirement is warranted by at least one of the Laing factors. In particular, Petitioner argues that waiver is warranted because pursuit of administrative remedies would be a futile gesture. Dkt. 16 at 12–13. Petitioner contends that, even if he appealed the IJ's bond denial decision, the BIA is likely to affirm the IJ's determination that she lacked jurisdiction to conduct a bond hearing without reaching the IJ's alternative finding that Petitioner presented a flight risk. Id. (citing Guzman-Juarez v. Wamsley, No. 26-CV-01791-TMC, 2026 WL 1911506, at *3 (W.D. Wash. July 2, 2026) (waiving exhaustion as futile in analogous circumstances where the petitioner sought review of IJ's alternative flight-risk determination and BIA was likely to affirm bond denial decision on the jurisdictional issue)). The Court agrees that waiver is warranted under the circumstances presented here for two reasons.

First, requiring Petitioner to pursue an administrative appeal presents a substantial possibility that the BIA would affirm the IJ's threshold jurisdictional determination without reaching the alternative flight-risk determination that Petitioner challenges here. See, e.g., Guzman-Juarez, 2026 WL 1911506, at *3; Gonzalez v. Mattos, No. 2:26-CV-00774-APG-EJY, 2026 WL 2410508, at *3 (D. Nev. Aug. 18, 2026) (waiving exhaustion where BIA is likely to affirm IJ's bond denial decision based on threshold jurisdictional issue); Singh v. Andrews, 803 F. Supp. 3d 1035, 1044 (E.D. Cal. 2025) (waiving exhaustion on noncitizen's request for bond hearing on similar reasoning); Shen v. Larose, No. 25CV3235-GPC (BLM), 2025 WL 3552747, at *4 n.2 (S.D. Cal. Dec. 11, 2025) (same); see also Garcia v. Scott, No. 2:26-CV-01430-TMC, 2026 WL 1723674, at *2 (W.D. Wash. June 15, 2026) (noting specific instance where, when presented with a noncitizen's administrative appeal to bond denial decision with alternative flight or dangerousness finding, the BIA affirmed the bond denial decision on threshold jurisdictional issue). Indeed, as the Ninth Circuit has made clear “where the agency's position appears already set and recourse to administrative remedies is very likely futile, exhaustion is not required.” Vasquez-Rodriguez v. Garland, 7 F.4th 888, 896 (9th Cir. 2021).

Moreover, Petitioner alleges an ongoing constitutional injury arising from his prolonged detention without a constitutionally sufficient bond hearing. See Dkt. 16. Requiring him to remain detained while pursuing an administrative appeal that is incapable of reaching that constitutional issue would delay review without meaningfully advancing the purposes served by exhaustion. See, e.g., W.T.M. v. Bondi, No. 2:25-CV-02428-RAJ-BAT, 2026 WL 262583, at *3 (W.D. Wash. Jan. 30, 2026) (finding administrative exhaustion unwarranted where “the defect alleged by Petitioner [wa]s constitutional in nature, and it [wa]s unlikely that appeal to the BIA w[ould] permit the agency to correct a factual or evidentiary oversight by the IJ.”); Soriano v. Hernandez, No. 2:26-CV-00900-DGE, 2026 WL 969764, at *4 (W.D. Wash. Apr. 10, 2026) (“Where the issue is whether procedural due process was violated, the Court finds no reason to delay review in favor of allowing the BIA to possibly correct an error.”); Hussaini v. Hermosillo, No. 2:26-CV-01618-TLF, 2026 WL 1733159, at *4 (W.D. Wash. June 16, 2026) (waiving exhaustion where noncitizen challenging bond denial decision “ultimately raises a constitutional challenge in his habeas petition, an area over which the Immigration Court and the BIA lack any authority to adjudicate, thereby rendering appeal to those bodies futile”) (quoting Garcia v. Hyde, 817 F. Supp. 3d 112, 125 (D.R.I. 2025)); see also Roberts v. Scott, No. 2:26-CV-01333-TL, 2026 WL 2071146, at *4 (W.D. Wash. July 17, 2026) (“With [the BIA's] current processing times, administrative remedies are inadequate or not efficacious for addressing Petitioner's claim.”) (internal citation and quotations omitted).⁵

Under these circumstances, the Court concludes that requiring exhaustion would serve little practical purpose and thus excuses Petitioner's failure to exhaust his administrative remedies. As such, the Court proceeds to review Petitioner's claim that IJ Fitting abused her discretion in concluding Petitioner was a flight risk based solely on the existence of his removal order thereby violating his procedural due process rights.

C. Abuse of Discretion

Habeas courts review an IJ's bond determination for abuse of discretion. Martinez v. Clark, 124 F.4th 775, 779, 784–85 (9th Cir. 2024); Anyanwu v. Bondi, No. 25-cv-995-JLR-MLP, 2025 WL 3466910, at *4 (W.D. Wash. Oct. 6, 2025), report and recommendation adopted, 2025 WL 3187485 (W.D. Wash. Nov. 14, 2025). When reviewing a determination for abuse of discretion, a court may not reweigh evidence but may determine whether the IJ applied the correct legal standard. Martinez, 124 F.4th at 785 (citing Wilkinson v. Garland, 601 U.S. 209 (2024)); Garcia Ortiz v. Henkey, No. 1:26-cv-00043-BLW, 2026 WL 948275, at *4 (D. Idaho Apr. 7, 2026) (adding, in more colorful terms, that federal district courts are “not required to countenance a sham” when reviewing discretionary bond determinations).

The following are factors considered by IJs in making discretionary bond determinations:

(1) whether the [noncitizen] has a fixed address in the United States; (2) the [noncitizen]’s length of residence in the United States; (3) the [noncitizen]’s family ties in the United States, and whether they may entitle the [noncitizen] to reside permanently in the United States in the future; (4) the [noncitizen]’s employment history; (5) the [noncitizen]’s record of appearance in court; (6) the [noncitizen]’s criminal record, including the extensiveness of criminal activity, the recency of such activity, and the seriousness of the offenses; (7) the [noncitizen]’s history of immigration violations; (8) any attempts by the [noncitizen] to flee prosecution or otherwise escape from authorities; and (9) the [noncitizen]’s manner of entry to the United States.

Matter of Guerra, 24 I. & N. Dec. 37, 40 (B.I.A. 2006); Matter of R-A-V-P-, 27 I. & N. Dec. 803, 805 (B.I.A. 2020). To sustain a permissible flight risk finding, any factor considered by an IJ must rationally bear on a noncitizen's likelihood to appear for immigration proceedings. Matter of Patel, 15 I. & N. Dec. 666, 667 (BIA 1976) (reversing flight risk finding where IJ relied on factors bearing “little if any relevance to the issue of whether or not the [noncitizen] is likely to appear for his deportation proceeding”). Further, factors should not be viewed so broadly or given such undue weight as to risk either denying release or “requiring a bond of almost every [noncitizen] who is held in deportation proceedings.” Id. (reversing IJ's order requiring bond where evidence of criminal arrest was unclear and only other factors considered were the noncitizen's potential avenues for relief from removal, a factor likely to apply nearly universally to noncitizens pending removal).

Given the significant liberty interest at stake for noncitizens in immigration detention and the weak or non-existent governmental interest in continued detention without adequate process, courts in this and other districts have found due process violations where IJs abuse discretion in bond determinations. See W.T.M., 2026 WL 262583, at *4; Soto Gimenez v. Hernandez, No. 2:26-CV-00966-GJL, 2026 WL 1156075, at *6 (W.D. Wash. Apr. 29, 2026) (collecting cases).

In this case, Petitioner has satisfied his burden of demonstrating by a preponderance of the evidence that his immigration bond proceedings were infected by reviewable legal and constitutional error. In his sworn declaration, Petitioner states that his immigration bond proceedings lasted approximately five minutes. Dkt. 16-1 at 4. At the hearing, Petitioner states that the IJ concluded that she lacked jurisdiction to conduct a bond hearing but alternatively determined that, if she had jurisdiction, she would find Petitioner to be a flight risk. Id. According to Petitioner, the IJ identified the existence of his removal order as the sole basis for that determination and placed the burden on Petitioner to demonstrate that he was not a flight risk. Id. Petitioner states that the IJ explained that, because of the removal order, Petitioner could not meet that burden. Id. Although Petitioner explained that the removal order was not final because his appeal remained pending, the IJ reportedly stated that this made no difference. Id.

Petitioner further states that, before the bond hearing, he submitted a letter from his cousin offering Petitioner a place to live upon release, as well as a letter from his church and a copy of his baptism certificate. Id. at 3–4. Petitioner states that the IJ had not reviewed the submitted materials. Id. at 4. Petitioner also states that he has no criminal history and that he received no transcript or recording of the bond proceedings. Id.

Respondents characterize Petitioner's challenge to his bond hearing as resting solely on the IJ's failure to issue “a written detailed explanation of the basis” for her bond denial decision. Dkt. 19 at 11. Respondents appear to misunderstand Petitioner's procedural due process claim

Petitioner does not rely solely on the lack of detailed, written explanation supporting the IJ's bond decision. Rather, Petitioner submits evidence showing that the IJ's only stated basis for finding Petitioner to be a flight risk was the existence of Petitioner's removal order. Dkt. 16-1 at 4. Petitioner contends that the IJ's unexplained reliance on the existence of a removal order, without more, was per se insufficient to establish flight risk and rendered the hearing constitutionally inadequate. Dkt. 16 at 12.

Curiously, Respondents do not meaningfully address this contention. Nor do they submit evidence contradicting Petitioner's account of the hearing or his recollection of the IJ's stated rationale. Although Respondents suggest that an audio recording of the May 2026 bond hearing may exist, Dkt. 19 at 11, they did not submit that recording with their Return or evidence establishing its existence. Respondents likewise did not identify what, if any, materials or arguments were presented by the Government during the bond proceedings, nor did they submit evidence to that effect.

These records, if they exist, appear to have been available to Respondents, and Respondents have been required to produce similar records pertaining to immigration bond proceedings in other habeas actions in this District. Singh v. Mullin, No. 2:26-cv-01730-GJL, Dkt. 15 (W.D. Wash. Aug. 11, 2026); Garcia v. Scott, No. 2:26-cv-02434-LK, Dkt. 10 (W.D. Wash. Aug. 26, 2026); Sow v. Bondi, No. 2:26-cv-00617-LK, Dkt. 25 (W.D. Wash. Jun. 11, 2026); W.T.M. v. Bondi, No. 2:25-cv-02428-RAJ-BAT, Dkt. 19 (W.D. Wash. Jan. 27, 2026). As such, although Respondents have received ample notice of the Court's expectations regarding appropriate evidentiary submissions in cases such as this, Respondents have failed to produce any evidence rebutting Petitioner's factual position.

Thus, the Court declines to delay resolution of the Amended Petition to provide Respondents another opportunity to submit evidence that was available to them when they filed their Return, particularly where Respondents failed to engage with Petitioner's substantive allegations concerning the IJ's flight-risk determination. See Roberts, 2026 WL 2071146, at *5 (proceeding in grant of habeas relief on similar evidentiary record and without ordering further submissions from Respondents). Therefore, the unrebutted factual record before the Court establishes that the IJ relied on the existence of Petitioner's non-final removal order as the sole basis for finding Petitioner to be a flight risk.

“[A] removal order alone cannot establish that a noncitizen is a flight risk, even where relief from removal is unlikely.” Cruz-Acevedo v. Scott, No. 2:26-CV-01654-LK, 2026 WL 1623154, at *8 (W.D. Wash. June 5, 2026) (citing Singh, 638 F.3d at 1205); Tavurov v. Noem, No. 2:26-CV-00668-TLF, 2026 WL 1283513, at *7 (W.D. Wash. May 11, 2026) (“[T]he fact of a removal order is not sufficient by itself to deny bond” or establish flight risk). The BIA, this Court, and several district courts have rejected the perceived weakness of a noncitizen's available forms of relief from removal as a rational basis for a flight risk finding. Matter of Patel, 15 I. & N. Dec. at 667; Soriano, 2026 WL 969764, at *5–6; Loya Medina v. Hernandez, No. 2:26-CV-00772-GJL, 2026 WL 1260848, at *2 (W.D. Wash. May 7, 2026); Rodriguez v. Hernandez, No. 2:26-CV-02076-TL, 2026 WL 2432725, at *5 (W.D. Wash. Aug. 6, 2026); Zarei v. Larose, No. 26-CV-02335-GPC-MMP, 2026 WL 1415042, at *5 (S.D. Cal. May 19, 2026); N.A. v. Warden, Adelanto Det. Facility, No. 5:25-CV-03007-MBK, 2026 WL 1045196, at *8 (C.D. Cal. Apr. 15, 2026)).⁶

Petitioner further argues that the bond hearing was deficient because there was no available contemporaneous record of the proceedings. Dkt. 16 at 12. Although the absence of a neutral contemporaneous record may not violate due process in every instance, the purported absence of such a record here is significant given that the bond hearing at issue served as a procedural safeguard against Petitioner's prolonged mandatory detention. In Singh, the Ninth Circuit recognized the importance of a neutral record (such as a transcript or recording) in this context, holding that the government is required to create a contemporaneous record of bond hearings. 638 F.3d at 1208–09, abrogated on other grounds by Jennings v. Rodriguez, 583 U.S. 281 (2018); see also Roberts, 2026 WL 2071146, at *6 (W.D. Wash. July 17, 2026) (noting that Singh is still treated as precedential in the Ninth Circuit).

The deficiencies in the IJ's determination extend beyond the absence of a neutral contemporaneous record. Petitioner contends that the IJ provided no reasoned explanation for why the existence of a removal order, which was not final and remained under administrative review, demonstrated that Petitioner posed a flight risk. Dkt. 16 at 12. As stated, the record before this Court includes no written or verbal record of the IJ's reasoning beyond that described in Petitioner's declaration. Petitioner further contends that the IJ failed to address evidence bearing directly on the flight-risk determination, including evidence that he would have a stable living situation upon release. Id.

As discussed above, the IJ's reliance on the existence of Petitioner's removal order, without more, does not provide a legally sufficient basis for the flight-risk determination. And the additional circumstances identified above reinforce the legally deficient nature of the bond proceedings. The purported unavailability of a contemporaneous record, the failure to articulate why the removal order demonstrated that Petitioner posed a flight risk, and the failure to consider or address evidence favorable to Petitioner's stability in the community, considered together, leave no reasoned basis supporting IJ Fitting's bond denial decision.

Stated again and in plain terms, although Petitioner received a bond hearing in May 2026, he has not received a constitutionally sufficient bond hearing.

D. Prolonged Detention without Constitutionally Sufficient Bond Hearing

Having concluded that Petitioner has not received a constitutionally sufficient bond hearing, the Court next considers whether his continued detention without such a hearing violates due process. Respondents analyze Petitioner's claim under the Mathews framework applicable to a request for an additional bond hearing, reasoning that Petitioner already received an adequate bond hearing in May 2026. Dkt. 19 at 11–13. He did not. See Sect. IV.C. above. The Court therefore evaluates whether Petitioner's continued detention without a constitutionally adequate bond hearing violates due process under the framework set forth in Banda, 385 F. Supp. 3d 1099 (W.D. Wash. 2019).

1. The Banda Test

Title 8 of the United States Code §§ 1225, 1226, and 1231 governs immigration detention. “Where [a noncitizen] falls within this statutory scheme can affect whether his detention is mandatory or discretionary, as well as the kind of review process available to him if he wishes to contest the necessity of his detention.” Prieto-Romero v. Clark, 534 F.3d 1053, 1057 (9th Cir. 2008). Section 1225 applies to “applicants for admission”—noncitizens who “arrive[ ] in the United States” or are “present” in the United States but have “not been admitted.” 8 U.S.C. § 1225(a)(1). “[A]pplicants for admission fall into one of two categories, those covered by § 1225(b)(1) and those covered by 1225(b)(2).” Jennings v. Rodriguez, 583 U.S. 281, 287 (2018). Section 1225(b)(1) applies to noncitizens who are “initially determined to be inadmissible due to fraud, misrepresentation, or lack of valid documentation.” Id. (citing § 1225(b)(1)(A)(i)). The Jennings Court found that 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.

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. 8 U.S.C. § 1225(b)(1)(A)(i). But, if a noncitizen “indicates either an intention to apply for asylum ․ or a fear of persecution,” the inspecting immigration officer must refer the noncitizen for an interview with an asylum officer. 8 U.S.C. § 1225(b)(1)(A)(ii); 8 C.F.R. § 208.30(d). If the asylum officer determines that the noncitizen has a credible fear of persecution, the noncitizen “shall be detained for further consideration of the application for asylum.” 8 U.S.C. § 1225(b)(1)(B)(ii).

Under the mandatory detention scheme, the only statutorily provided opportunity for a noncitizen to be released pending a decision on the asylum application is temporary parole “for urgent humanitarian reasons or significant public benefit.” 8 U.S.C. § 1182(d)(5)(A); see also 8 C.F.R. §§ 212.5(b), 235.3. The statute does not impose “any limit on the length of detention” pending a decision on the asylum application. Jennings, 583 U.S. at 296–301. Nevertheless, “[n]early all district courts that have considered the issue agree that prolonged mandatory detention pending removal proceedings, without a bond hearing, will—at some point—violate the right to due process.” Banda, 385 F. Supp. 3d at 1116 (cleaned up).

Neither the Supreme Court nor the Ninth Circuit has settled on a test for assessing the constitutionality of prolonged mandatory detention. Id. Courts in this District have adopted the “Banda test” to assess when continued mandatory detention, without a bond hearing, violates due process. Courts applying Banda consider 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.

Id. at 1117 (quoting Jamal A. v. Whitaker, 358 F. Supp. 3d 853, 853–59 (D. Minn. 2019)).

2. Applying the Banda Factors

a. Total Length of Detention

“[T]he most important factor” under the Banda test is the length of detention. Banda, 385 F. Supp. 3d at 1118 (collecting cases granting bond hearings after nine, ten, sixteen, and nineteen months in detention). The “context” of a petitioner's circumstances is crucial to keep in mind, particularly that “[t]he 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.” Jamal A., 358 F. Supp. 3d at 859. “The longer mandatory detention continues ․ the harder it is to justify.” Murillo-Chavez v. Garland, No. 2:22-cv-0303-LK, 2022 WL 16555994, at *5 (W.D. Wash. Aug. 30, 2022), report and recommendation adopted, 2022 WL 16553176 (W.D. Wash. Oct. 31, 2022).

In the wake of Banda, courts in the Western District of Washington have considered a range of periods that favor the detainee. Ashemuke v. ICE Field Off. Dir., No. 2:23-cv-1592-RSL, 2024 WL 1683797, at *4 (W.D. Wash. Feb. 29, 2024), report and recommendation adopted, 2024 WL 1676681 (W.D. Wash. Apr. 18, 2024) (eleven months); Murillo-Chavez, 2022 WL 16555994, at *5 (nineteen months); see also Populus-Revuelta v. Scott, 2:26-cv-00636-RAJ, 2026 WL 1067317, at *4 (W.D. Wash. Apr. 20, 2026) (applying the related Martinez test and finding the duration of detention factor begins to tilt in favor of noncitizens subject to mandatory detention without a bond hearing for six months or longer); Odimara v. Bostock, 2:24-cv-01412-MJP-TLF, 2025 WL 1490395, at *5 (W.D. Wash. Mar. 27, 2025), report and recommendation adopted, 2025 WL 1489705 (W.D. Wash. May 23, 2025) (same).

Here, Petitioner has been in immigration detention since December 21, 2024. Dkt. 16 at 1; Dkt. 16-1 at 1; Dkt. 11 at 2–3. Thus, at the time he initiated this action, Petitioner had been detained for more than seventeen months, Dkt. 1 (filed June 1, 2026), and his immigration detention has now extended to more than twenty months.

As such, the first factor weighs heavily in favor of Petitioner.

b. Likely Duration of Future Detention

The second factor requires consideration of “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 (quoting Jamal A., 358 F. Supp. at 859). In Banda, for example, the Court noted that the petitioner had recently filed an appeal of a removal order with the BIA. Id. As the court explained, if the BIA were to affirm the removal order, the petitioner could seek review in the Ninth Circuit. Id. That process, the court found, might “take up to two years or longer.” Id. (citation omitted). Thus, the Banda court found that the factor favored granting the petitioner a bond hearing. Id.

Petitioner's removal is currently pending review by the BIA and may be subject to further review by the Fifth Circuit Court of Appeals. Dkt. 16-1 at 1; Dkt. 20 at 2; see also Dkt. 10 (arguing in response to initial Petition that Petitioner's BIA appeal may be resolved soon but not addressing possibility of further appeal to the Fifth Circuit). The Fifth Circuit reports that the median time from the filing of a notice of appeal to disposition is approximately eight months. See U.S. Ct. of Appeals for the Fifth Cir., Practitioners’ Guide to the United States Court of Appeals for the Fifth Circuit (May 2025) (reporting a median time of 7.8 months as of June 30, 2024). It is therefore likely that Petitioner will face additional time in custody. The Court finds this second Banda factor weighs in favor of Petitioner.

c. Conditions of Detention

Next, the Court considers the conditions of detention. “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 (citation omitted).

Courts have recognized that the conditions at NWIPC are “similar ․ to those in many prisons and jails.” Maliwat v. Scott, No. 2:25-cv-00788-TMC, 2025 WL 2256711, at *5–6 (W.D. Wash. Aug. 7, 2025) (considering evidence and allegations that NWIPC suffers from understaffing, irregular and nutritionally lacking meals, occasional discolored drinking water, and uncontrolled incidents of violence); Rahman v. Garland, No. 2:24-cv-02132-JHC-TLF, 2025 WL 1920341, at *4 (W.D. Wash. June 26, 2025), report and recommendation adopted sub nom. Anisur R. v. Garland, No. 2:24-CV-02132-JHC-TLF, 2025 WL 1919252 (W.D. Wash. July 11, 2025) (similar and collecting cases).

Additionally, Petitioner submits evidence of the substandard health and sanitary conditions he is personally experiencing at NWIPC. Dkt. 16-1 at 3. Respondents do not dispute Petitioner's assertions. Dkt. 19; see also Dkt. 10 at 8 (arguing only that Petitioner “did not present” allegations or evidence about NWIPC conditions in his initial Petition).

Thus, the Court finds the third Banda factor strongly favors Petitioner.

d. Delays in Removal Proceedings

The fourth factor considers the nature and extent of any delays in the removal proceedings caused by Petitioner. Noncitizens are “entitled to raise legitimate defenses to removal ․ and such challenges to [their] removal cannot undermine [a] claim that detention has become unreasonable.” Martinez v. Clark, No. 2:18-cv-1669-RAJ, 2019 WL 5968089, at *10 (W.D. Wash. May 23, 2019), report and recommendation adopted, 2019 WL 5962685 (W.D. Wash. Nov. 13, 2019). “Courts, however, 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 [their] incarceration.” Id. (internal citations and quotations omitted). Here, Respondents have previously conceded that “[n]o facts indicate that there were delays in the removal proceedings caused by Petitioner.” Dkt. 10 at 9.

The fifth Banda factor considers delays attributable to the Government. “If 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.” Sajous v. Decker, No. 18-2447, 2018 WL 2357266, at *11 (S.D.N.Y. May 23, 2018).

As with Petitioner, there is no evidence or contention that the Government has engaged in deliberate delay tactics. See Dkt. 16 at 9. Nevertheless, courts have found this factor weighs in favor of the petitioner even when delays are not the result of intentional action on behalf of the Government. See Martinez, 2019 WL 5968089, at *10; Chekhovskii v. Scott, No. 2:25-CV-02550-TLF, 2026 WL 353265, at *5 (W.D. Wash. Feb. 9, 2026) (collecting cases). The Court therefore observes that any delays appear to stem from the “crowded dockets” of the BIA and Courts of Appeals. Djelassi v. ICE Field Off. Dir., 434 F. Supp. 3d 917, 931 (W.D. Wash. 2020). “Although not the result of intentional action on behalf of government officials, this delay is attributable to the Government.” Id.

Thus, the Court finds the fourth factor neutral and the fifth factor favors Petitioner.

e. Likelihood of Final Order of Removal

Under the final Banda factor, the Court considers the likelihood that the removal proceedings will result in a final order of removal. Banda, 385 F. Supp. 3d at 1120 (citation omitted). Here, the Court has been presented with evidence that Petitioner has sought asylum and his removal order is pending appeal to the BIA. Dkt. 16-1 at 1; Dkt. 20. However, as the Court does not possess sufficient information regarding the nature or likely success of any challenge to Petitioner's removal, Petitioner acknowledges that this is neutral. Dkt. 16 at 9–10; see also Dkt. 10 at 9 (arguing this factor is neutral in response to initial Petition). The Court agrees and finds the final Banda factor is neutral.⁷

3. Weighing the Banda Factors

In sum, four of the six Banda factors weigh in favor of granting Petitioner a bond hearing, and the remaining two are neutral. Notably, the most important factor—the length of detention—and the conditions of Petitioner's confinement at NWIPC weigh strongly in his favor. See Banda, 385 F. Supp. 3d at 1118. The Court concludes that the Banda test weighs decisively in Petitioner's favor, and that his “continued mandatory detention under § 1225(b) has become unreasonable and that due process requires the Government to provide him with a bond hearing.” Id. at 1120.

V. REMEDY

Having found that Petitioner's continued detention has become unreasonable, the Court must now consider the appropriate relief. As relief, Petitioner requests that he be provided an individualized bond hearing within fourteen days of an order granting his Amended Petition. Dkt. 16 at 13. The Court concurs that the requested relief is the appropriate remedy here.

Generally, the remedy for prolonged mandatory detention is conditional writ of habeas corpus requiring a bond hearing, not immediate release. L.B.O.M. v. Hermosillo, No. 2:25-CV-02695-GJL, 2026 WL 266068, at *6 (W.D. Wash. Feb. 2, 2026) (collecting cases). Accordingly, the Court issues a conditional writ in this case requiring the provision of a prompt individualized bond hearing before an immigration judge.

The bond hearing must comport with the requirements of Singh, 638 F.3d at 1208–09 (clarifying that “the government should be held to a clear and convincing evidence standard of proof” in a bond hearing and must create “a neutral contemporaneous record of the hearing”) and be held according to the schedule set forth in the conclusion below. Further, to remedy the particular injuries in this case, the IJ shall also prepare a contemporaneous written memorandum of any resulting bond denial decision, which outlines their reasoning, the evidence considered, and application of the appropriate legal standards to the facts of Petitioner's case. Soto Gimenez, 2026 WL 1156075, at *9 (imposing similar requirement in conditional writ to remedy abuse of discretion in an IJ's prior bond denial decision).

VI. CONCLUSION

In light of the foregoing, the Court ORDERS as follows:

(1) The Amended Petition (Dkt. 16) is GRANTED IN PART;

(2) Respondents SHALL provide Petitioner Pouria Nazari with an individualized bond hearing, on adequate notice to Petitioner and his appropriate counsel, before an Immigration Judge within fourteen days of this Order unless the hearing is continued at the Petitioner's request. The Government SHALL bear burden of proof by clear and convincing evidence that Petitioner poses a risk of flight, and the Government SHALL create a neutral contemporaneous record of the proceeding;

(3) If a bond hearing is not provided within fourteen days of the date of this Order, or within a period of continuance requested by Petitioner, Respondents SHALL release Petitioner subject to reasonable conditions of supervised release no later than the fifteenth day after the date of this Order or the day following a period of continuance requested by Petitioner;

(4) Respondents SHALL file a declaration with the Court confirming that Petitioner received a bond hearing—and the results of that hearing—or otherwise confirming Petitioner's request for a continuance or his release by October 6, 2026;

(5) If the bond hearing is continued at Petitioner's request, Respondents SHALL file a supplemental declaration confirming that Petitioner received a bond hearing—and the results of that hearing—or otherwise confirming Petitioner's release within two days of the date of the continuance; and

(6) Together with the declaration confirming that Petitioner received a bond hearing, Respondents SHALL file a copy of the Immigration Judge's contemporaneous written memorandum of any resulting bond denial decision, which outlines their reasoning, the evidence considered, and application of the appropriate legal standards to the facts of Petitioner's case.8

FOOTNOTES

1.   The Parties have consented to proceed in this matter before a United States Magistrate Judge. Dkt. 7.

2.   The Parties do not dispute that Petitioner is subject to mandatory detention under 8 U.S.C. § 1225(b). See Dkt. 16; Dkt. 19.

3.   Respondents state that the IJ did not issue a written decision further explaining the basis for the bond determination because Petitioner waived his right to appeal. Dkt. 19 at 11. But Petitioner's challenge is not limited to the absence of a subsequently prepared written decision but rather Petitioner's concerns about the IJ's unexplained and exclusive reliance upon the existence of his removal order to find he posed a risk of flight. Dkt. 16 at 12. Respondents do not dispute Petitioner's sworn account of the IJ's stated rationale at the hearing, nor have they produced a transcript, recording, or other contemporaneous record contradicting that account. See Section IV.C. below.

4.   The Court uses the term “noncitizen” as equivalent to the term “alien” that is used in the statute. See Nasrallah v. Barr, 590 U.S. 573, 578 n.2 (2020) (citing 8 U.S.C. § 1101(a)(3)).

5.   Petitioner has also submitted individualized evidence demonstrating irreparable harm sufficient to warrant waiver of exhaustion. Petitioner describes substandard health and sanitary conditions at NWIPC, including poor conditions resulting in Petitioner and other detainees contracting skin diseases, the prevalence and rapid spread of other illnesses among detainees, concerns regarding the quality of drinking water, and the reuse of clothing and undergarments among detainees. Dkt. 16-1 at 3 (Nazari Declaration).

6.   At least one such decision involved review of a bond determination issued by the same IJ whose decision is at issue here. Rodriguez, 2026 WL 2432725, at *2. Additionally, in concluding that IJ Fitting previously abused her discretion under similar circumstances, the court in Roberts performed a “review of recent cases in this District[, which] show[ed] immigration judges performing incredible mental gymnastics to turn ordinary human experiences and behaviors into evidence of a risk of flight.” Roberts, 2026 WL 2071146, at *9. This Court need not reiterate Roberts’s thorough review of specific immigration bond decisions but echoes the deeply concerning conclusion it drew: “These gymnastics are not jurisprudence.” Id. As in Roberts, the Court finds that IJ Fitting “reached a conclusion untethered to the evidence before her and erred as a matter of law in finding Petitioner poses a flight risk and in denying [him] bond. Because of this, the proceeding was fundamentally deficient, and Petitioner was denied due process of law.” Id. at *10.

7.   The Court observes as well that, even if a final order of removal were obtained, the current political conflict between the United States and Iran is likely to frustrate future removal to that country. See, e.g., Monazzami v. Blanche, No. 2:26-CV-01155-GJL, 2026 WL 1453670, at *3 (W.D. Wash. May 22, 2026).

8.   Respondents are reminded that failure to comply with these requirements may result in enforcement of the conditional writ. E.g., Soto Gimenez v. Hernandez, No. 2:26-CV-00966-GJL, 2026 WL 1262016, at *2 (W.D. Wash. May 8, 2026).

Grady J. Leupold, United States Magistrate Judge