{"id":396,"date":"2026-01-22T12:00:00","date_gmt":"2026-01-22T12:00:00","guid":{"rendered":"https:\/\/california.shuster.info\/?p=396"},"modified":"2026-01-22T12:00:00","modified_gmt":"2026-01-22T12:00:00","slug":"vladimir-markov-warden-1225b-mandatory-detention-banda-factors","status":"publish","type":"post","link":"https:\/\/california.shuster.info\/?p=396","title":{"rendered":"Markov v. Warden \u2014 S.D. Cal. Denies Bond Hearing for Russian Asylum-Seeker Held Seven Months Under \u00a7 1225(b)(1) Mandatory Detention"},"content":{"rendered":"
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Case<\/dt>\n
Markov v. Warden, Otay Mesa Detention Center<\/dd>\n
Court<\/dt>\n
U.S. District Court \u2014 Southern District of California<\/dd>\n
Date Decided<\/dt>\n
2026-01-22<\/dd>\n
Docket No.<\/dt>\n
3:25-cv-03705<\/dd>\n
Status<\/dt>\n
Unreported \/ Non-Citable<\/dd>\n
Topics<\/dt>\n
Section 1225(b)(1) mandatory detention, Jennings v. Rodriguez, Banda factors test, prolonged detention due process, asylum<\/dd>\n<\/dl>\n<\/div>\n

Background<\/h2>\n

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. \u00a7 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.<\/p>\n

Markov filed a federal habeas petition under 28 U.S.C. \u00a7 2241 arguing that his prolonged mandatory detention without a bond hearing \u2014 by then more than seven months \u2014 violated the Fifth Amendment Due Process Clause. He also raised a separate complaint about the inadequacy of medical care for his pulmonary sarcoidosis.<\/p>\n

The Court’s Holding<\/h2>\n

The court denied the petition. On the constitutional question, the court adopted a multi-factor test for when \u00a7 1225(b)(1) detention violates due process and concluded that the test was not satisfied here.<\/p>\n

As background, the Supreme Court’s decisions in Jennings v. Rodriguez<\/em> and Department of Homeland Security v. Thuraissigiam<\/em> establish that \u00a7 1225(b)(1) and \u00a7 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<\/em> in Rodriguez v. Marin<\/em>) has held that \u00a7 1225(b)(1) cannot justify “practically indefinite” civil detention.<\/p>\n

To assess when \u00a7 1225(b)(1) detention crosses the constitutional line, the court adopted the six-factor Banda test from Banda v. McAleenan<\/em> (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.<\/p>\n

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 \u2014 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.<\/p>\n

On medical care, the court applied the standard rule from Muhammad v. Close<\/em> that complaints about “circumstances of confinement” must be brought as 42 U.S.C. \u00a7 1983 actions, not as habeas petitions. The medical-care complaint therefore could not support release.<\/p>\n

Key Takeaways<\/h2>\n