Unreported / Non-Citable
Background
Vladimir Markov is a Russian citizen who applied for admission to the United States at a port of entry in June 2025 without valid documents. He was immediately taken into immigration custody and placed in expedited-removal proceedings under 8 U.S.C. § 1225(b)(1). After expressing fear of returning to Russia, he received a positive credible-fear determination from an asylum officer. He has remained in ICE custody at the Otay Mesa Detention Center ever since while pursuing his asylum claim.
Markov filed a federal habeas petition under 28 U.S.C. § 2241 arguing that his prolonged mandatory detention without a bond hearing — by then more than seven months — violated the Fifth Amendment Due Process Clause. He also raised a separate complaint about the inadequacy of medical care for his pulmonary sarcoidosis.
The Court’s Holding
The court denied the petition. On the constitutional question, the court adopted a multi-factor test for when § 1225(b)(1) detention violates due process and concluded that the test was not satisfied here.
As background, the Supreme Court’s decisions in Jennings v. Rodriguez and Department of Homeland Security v. Thuraissigiam establish that § 1225(b)(1) and § 1225(b)(2) require detention of certain applicants for admission until their asylum proceedings end. The statutes do not include any time limit and do not entitle detainees to bond hearings. But Jennings expressly left the constitutional question open. This Southern District of California court (and the Ninth Circuit before Jennings in Rodriguez v. Marin) has held that § 1225(b)(1) cannot justify “practically indefinite” civil detention.
To assess when § 1225(b)(1) detention crosses the constitutional line, the court adopted the six-factor Banda test from Banda v. McAleenan (W.D. Wash. 2019): (1) total length of detention to date (the most important factor); (2) likely future duration; (3) conditions of detention; (4) delays caused by the detainee; (5) delays caused by the government; and (6) likelihood that proceedings will end in a final removal order.
Applying these factors: factor 1 (length) weighed against Markov because seven months is shorter than the one-year-plus stretches that typically trigger Banda relief in this district. Factor 3 (conditions) weighed in his favor based on his allegations of overcrowding and inadequate food at Otay Mesa — common complaints courts have heard. Factors 2 and 6 were neutral because his individual merits hearing was scheduled for early February 2026 and his asylum application had not been adjudicated. Factors 4 and 5 were neutral because neither side identified delays attributable to the other. Because the most important factor (length) and most other factors did not favor Markov, the court concluded his detention was not yet unreasonable enough to require a bond hearing under the Due Process Clause.
On medical care, the court applied the standard rule from Muhammad v. Close that complaints about “circumstances of confinement” must be brought as 42 U.S.C. § 1983 actions, not as habeas petitions. The medical-care complaint therefore could not support release.
Key Takeaways
- Mandatory detention under 8 U.S.C. § 1225(b)(1) lasts as long as removal proceedings, with no statutory time limit. Bond hearings are not statutorily required.
- California federal courts apply the six-factor Banda test to decide when prolonged § 1225(b)(1) detention violates due process. Length of detention is the most important factor, but conditions, future duration, and delays also matter.
- Detentions of seven months or so are typically not long enough on their own to require a bond hearing. Courts in this district often look for detention extending beyond one year.
- Allegations of poor conditions at Otay Mesa Detention Center can support a Banda-factor finding for the detainee on the conditions factor, but rarely tip the overall balance unless other factors also favor relief.
- Medical-care complaints in immigration detention belong in a § 1983 action, not in a § 2241 habeas petition.
Why It Matters
Mandatory detention of credible-fear asylum applicants under § 1225(b)(1) generates a steady stream of habeas petitions in the Southern District of California. After the Supreme Court’s Jennings and Thuraissigiam decisions cut off the statutory route to bond hearings, the constitutional argument under the Banda framework is the principal pathway to relief. This decision is a useful illustration of how California federal judges actually apply Banda — and a reminder that detentions under one year typically do not yet support release.
For California immigration practitioners, the case underscores the importance of building a record on factors other than length when bringing a Banda challenge. Documenting government-caused delays, showing that the detainee has not contributed to delay, and developing strong evidence of conditions issues can all help shift the balance in a longer-running detention case.