Unreported / Non-Citable
Background
Nikita Prokopev is a Russian national who came to the United States seeking admission in November 2024. He was detained at the border, placed in removal proceedings, and transferred to the Otay Mesa Detention Center in California. He applied for asylum while detained. An immigration judge denied his asylum application and ordered him removed in June 2025. He appealed to the Board of Immigration Appeals (“BIA”), the administrative tribunal that hears appeals from immigration-judge decisions.
While his BIA appeal was pending, Prokopev filed a federal habeas petition under 28 U.S.C. § 2241 challenging his ongoing immigration detention. By the time the government responded to the petition, however, the BIA had denied his appeal — making his removal order final as of November 28, 2025. Prokopev did not file a reply (called a “traverse”) addressing the changed posture.
The Court’s Holding
The court denied the petition without prejudice. The key was the change in detention authority. While Prokopev’s appeal was pending at the BIA, his detention was likely governed by 8 U.S.C. § 1226, which generally controls civil immigration detention pending removal proceedings. After the BIA’s denial, however, his removal order became administratively final, and his detention shifted to 8 U.S.C. § 1231(a). That statute governs detention after a final removal order and provides a 90-day “removal period” during which the government may detain a noncitizen while it arranges actual removal from the United States.
The court applied the well-established rule that detention within the 90-day post-removal period is presumptively reasonable. Because the BIA denied the appeal on November 28, 2025, and the 90-day clock was still running at the time of the court’s January 7, 2026 order, the government was within its statutory detention authority. A habeas challenge based on prolonged detention is premature until the 90-day period expires (and even then, under Zadvydas v. Davis, the petitioner must typically wait through a six-month “presumptively reasonable” extended period before bringing a Zadvydas-style claim).
The court denied the petition without prejudice, meaning Prokopev can refile if his situation changes — for example, if he files a further appeal that returns the case to pending status, or if he is subject to prolonged detention after the 90-day period ends without the government being able to remove him.
Key Takeaways
- Detention authority shifts at the moment a removal order becomes final. Detention under 8 U.S.C. § 1231(a) operates differently from § 1226(a) detention, and the 90-day post-removal period is a hard floor for habeas challenges to ongoing detention.
- Habeas petitions filed before a final removal order may be overtaken by events. If the BIA denies the appeal while the petition is pending, the petitioner should file a traverse explaining how the new posture affects the legal theory.
- The 90-day removal period under § 1231(a) is presumptively reasonable. Prolonged-detention claims under Zadvydas v. Davis typically require the petitioner to wait through the additional six-month presumptively reasonable period before claiming detention is no longer authorized.
- Denials “without prejudice” preserve the petitioner’s right to refile. Detainees in this position should carefully track the 90-day and 180-day milestones and document any indication that removal is not reasonably foreseeable.
Why It Matters
Many immigration habeas petitions are filed at moments of legal transition — for example, while an appeal is pending or right after a removal order becomes final. This decision shows why petitioners must keep the court informed of changes in posture and respond promptly to the government’s return. Failure to file a traverse can leave the court with no basis to question the government’s account.
For California immigration practitioners, the case is also a reminder of the multi-stage detention framework that governs noncitizens after a removal order. Detention under § 1231(a) for the first 90 days, then a presumptively reasonable additional period under Zadvydas, then potentially a successful prolonged-detention challenge — each phase has different legal standards and different evidentiary burdens. Filing the right petition at the right moment matters.