Unreported / Non-Citable
Background
Andrey Kisel, a noncitizen detained by ICE at Adelanto Detention Facility, filed a § 2241 habeas petition in December 2025 challenging his indefinite detention as a violation of the Fifth Amendment Due Process Clause. The Court initially denied his motion for a preliminary injunction. After his renewed motion was filed in January 2026 and respondents opposed, the court considered whether his continued detention was constitutional under Zadvydas v. Davis, 533 U.S. 678 (2001).
Under 8 U.S.C. § 1231(a), a noncitizen who has been ordered removed must be detained during the 90-day removal period. After that, the government may continue detention or release the person under supervision. Zadvydas held that detention beyond the presumptively reasonable six-month period requires the government to demonstrate a significant likelihood of removal in the reasonably foreseeable future. Kisel had been detained for nine months — past the six-month presumption.
The Court’s Holding
Judge Kenly Kiya Kato issued an Order to Show Cause why the court should not grant Kisel’s motion for preliminary injunction. The court explained that as a noncitizen detained beyond the presumptively reasonable six-month period, Kisel’s detention “grows more presumptively unreasonable every day he remains in custody” (citing Vaskanyan v. Janecka). While respondents asserted ICE intended to remove Kisel to Belarus, they did not dispute his contention that he could not be removed there because Belarus does not recognize him as a citizen.
Respondents’ representation that “the government is actively seeking a travel document for the Petitioner” was insufficient under Zadvydas. Mere requests for travel documents do not demonstrate a significant likelihood of removal in the reasonably foreseeable future (Nguyen v. Scott). The court ordered respondents to address whether Belarus had previously refused to issue travel documents and, if so, what specific changed circumstances now made removal likely. Petitioner could file a reply within 10 days.
Key Takeaways
- Under Zadvydas v. Davis, immigration detention beyond six months becomes presumptively unreasonable; the government must show a significant likelihood of removal in the reasonably foreseeable future to continue detention.
- Detention beyond six months “grows more presumptively unreasonable every day” the noncitizen remains in custody.
- If the destination country (here, Belarus) does not recognize the noncitizen as a citizen, removal is not reasonably foreseeable absent specific countervailing evidence.
- The government’s mere request for travel documents is insufficient to satisfy the Zadvydas standard; specific evidence of progress and changed circumstances is required.
- Detention from nine months and counting, combined with diplomatic obstacles to removal, presents a strong case for habeas relief under § 2241.
Why It Matters
This is a textbook Zadvydas application. Petitioners detained for nine months with no realistic prospect of removal present a particularly strong case, and the court’s OSC effectively shifts the burden to ICE to demonstrate concrete progress on travel documents. The same analysis would apply to noncitizens from Cuba, Vietnam, China, or other countries that historically refuse to accept returns.
For immigration counsel, the citation to Vaskanyan v. Janecka and Nguyen v. Scott — both 2025 cases — is useful precedent. The framework is settled: detention beyond six months requires affirmative ICE evidence of likely removal, and bare assertions of “actively seeking” documents do not satisfy that burden.