Unreported / Non-Citable
Background
Dmitry Kireev entered the United States at the San Ysidro Port of Entry in January 2023 and was paroled after brief Customs and Border Patrol detention. He applied for asylum, lived in Florida with his U.S. citizen partner, and worked under a valid authorization. On June 28, 2026, he was arrested for resisting arrest without violence and battery; ICE arrested him after his release from county jail on June 29, 2026, serving an administrative warrant and a Notice of Custody Determination under 8 U.S.C. § 1226(a). The battery charge was dropped in September 2026, while the resisting-arrest charge remained pending. By the order, Kireev had been detained over four months without a bond hearing because respondents deemed his detention mandatory under 8 U.S.C. § 1225(b)(2).
Kireev filed an amended habeas petition and a motion for a temporary restraining order seeking release from ICE custody, raising three claims: that mandatory detention under § 1225(b)(2) violated the Immigration and Nationality Act, that his warrantless arrest violated § 1226(a) and its regulations, and that his re-detention after release on parole violated Fifth Amendment due process. Respondents argued no warrant was required at the outset because initial detention was controlled by § 1226(c)(1)(E), and that continued detention became mandatory under § 1225(b)(2) once the battery charge was dismissed.
The Court’s Holding
The court rejected the warrantless-arrest claim but granted relief on due process grounds. Section 1226(c)(1)(E) applied when ICE arrested Kireev in June 2026 because he was then charged with battery, so § 1226(a) procedures, including a warrant, were not required at least until that charge was dropped in September 2026; under the provision’s present-tense language, it no longer mandated detention once the qualifying charge was dismissed. The court disagreed with respondents that § 1225(b)(2) made continued detention mandatory.
The court held that Kireev’s earlier release by immigration authorities gave him a protected liberty interest in continued freedom, regardless of whether § 1225(b)(2) or § 1226(a) controlled. Applying Mathews v. Eldridge, it found a substantial private interest after nearly three years at liberty, during which he sought asylum and built community and family ties; the absence of any hearing created a risk of erroneous deprivation, and the key question was whether detention remained necessary after the battery charge was dropped. The government’s interest in detention without a hearing was low and a routine custody hearing imposed minimal burden, so post-deprivation process was required.
The petition was granted in part. The court ordered a substantive bond hearing within fourteen days before an immigration judge to determine whether Kireev posed a flight risk or danger to the community, continuable at his request. The government must establish danger or flight risk by clear and convincing evidence, Kireev may have counsel present, and the clerk was directed to enter judgment for Kireev and close the case.
Key Takeaways
- A noncitizen’s initial detention may be authorized under § 1226(c)(1)(E) while a qualifying criminal charge is pending, but that basis for mandatory detention ends when the charge is dismissed and no other clause applies.
- The court held that release on parole can create a protected liberty interest, so later immigration detention must satisfy due process even if the government invokes a different detention statute.
- Under the Mathews framework, prolonged detention without any hearing favored post-deprivation process because the petitioner had substantial liberty interests and the government faced only a minimal burden in providing a custody hearing.
- The ordered remedy was a bond hearing rather than immediate release, with the government required to prove flight risk or dangerousness by clear and convincing evidence.
- The court rejected the challenge to the initial warrantless arrest but granted the habeas petition in part and directed judgment for the petitioner.
Why It Matters
The decision separates the lawfulness of an initial immigration arrest from the process required for continued detention after circumstances change. Even though the pending battery charge justified § 1226(c)(1)(E) at the outset and defeated the warrant claim, its dismissal undermined the asserted basis for mandatory detention and made the absence of a hearing constitutionally significant.
The order treats prior release on parole as central to the due process analysis rather than letting the choice between § 1225(b)(2) and § 1226(a) eliminate the liberty interest. Its remedy specifies both a prompt hearing and procedural protections, including counsel and a clear-and-convincing burden on the government, while leaving the ultimate custody decision to the immigration judge.