{"id":379,"date":"2026-01-07T12:00:00","date_gmt":"2026-01-07T12:00:00","guid":{"rendered":"https:\/\/california.shuster.info\/?p=379"},"modified":"2026-01-07T12:00:00","modified_gmt":"2026-01-07T12:00:00","slug":"prokopev-larose-1231a-post-removal-90-day-detention-period","status":"publish","type":"post","link":"https:\/\/california.shuster.info\/?p=379","title":{"rendered":"Prokopev v. LaRose \u2014 S.D. Cal. Denies Russian Asylum-Seeker’s Habeas Petition Because Detention Is Within \u00a7 1231(a) 90-Day Removal Period"},"content":{"rendered":"
\n
\n
Case<\/dt>\n
Prokopev v. LaRose<\/dd>\n
Court<\/dt>\n
U.S. District Court \u2014 Southern District of California<\/dd>\n
Date Decided<\/dt>\n
2026-01-07<\/dd>\n
Docket No.<\/dt>\n
3:25-cv-03441<\/dd>\n
Status<\/dt>\n
Unreported \/ Non-Citable<\/dd>\n
Topics<\/dt>\n
Section 2241 habeas corpus, 8 U.S.C. \u00a7 1231(a), post-removal-order detention, 90-day removal period<\/dd>\n<\/dl>\n<\/div>\n

Background<\/h2>\n

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.<\/p>\n

While his BIA appeal was pending, Prokopev filed a federal habeas petition under 28 U.S.C. \u00a7 2241 challenging his ongoing immigration detention. By the time the government responded to the petition, however, the BIA had denied his appeal \u2014 making his removal order final as of November 28, 2025. Prokopev did not file a reply (called a “traverse”) addressing the changed posture.<\/p>\n

The Court’s Holding<\/h2>\n

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. \u00a7 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. \u00a7 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.<\/p>\n

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<\/em>, the petitioner must typically wait through a six-month “presumptively reasonable” extended period before bringing a Zadvydas-style claim).<\/p>\n

The court denied the petition without prejudice, meaning Prokopev can refile if his situation changes \u2014 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.<\/p>\n

Key Takeaways<\/h2>\n