Unreported / Non-Citable
Background
Oleg Tusov, a 25-year-old Russian citizen, lawfully entered the United States on a visa in July 2017 as a minor, traveling with his father. Before the visa expired in January 2018, his father filed an asylum application listing Tusov as a derivative beneficiary, and that application remained pending for more than eight years. Tusov held a work permit valid until 2030, had no criminal record, and was employed as a contractor. On September 4, 2026, ICE agents encountered him sleeping at a truck stop in Post Falls, Idaho, and took him into custody for overstaying his visa. He was served with a notice to appear in removal proceedings on September 22, 2026, and was transferred from Tacoma, Washington, to the Golden State Annex Detention Center in California, where he was told he had no hearing scheduled.
Tusov received a custody determination from the Department of Homeland Security and requested review by an immigration judge, but he remained detained for over thirty days without a bond hearing. On September 28, 2026, he filed a petition for a writ of habeas corpus and a motion for a temporary restraining order, arguing he was detained without due process. Respondents filed an opposition and a motion to accept a late-filed exhibit, which the court granted on excusable-neglect grounds. The court also directed the clerk to correct the spelling of petitioner's family name to Tusov, which the petition and his I-213 form supported.
The Court’s Holding
The court explained that it had previously addressed the legal issues raised by the petition, holding that when a noncitizen has lived at liberty for years while his immigration case proceeds under the government's affirmative decision not to detain him, the Due Process Clause requires a bond hearing at which the government bears the burden of proving flight risk or danger by clear and convincing evidence. The court had ordered respondents to show cause whether any factual or legal issues distinguished this case from that prior ruling, and respondents did not dispute the facts or offer any distinction.
Applying that framework, the court found Tusov had a protected liberty interest because the government sanctioned his continued presence by granting employment authorization and by allowing his asylum application to remain pending for over eight years while he lived at liberty. Respondents conceded that 8 U.S.C. § 1226(a) governed and that Tusov could seek a custody redetermination, but they made no new legal arguments. Because nothing distinguished the case from the court's prior decision, the court granted the petition, ordered Tusov's immediate release, and enjoined respondents from re-detaining him unless they demonstrate by clear and convincing evidence at a pre-deprivation bond hearing before a neutral decisionmaker that custody is legally justified. The court expressly noted it did not address detention in the event Tusov becomes subject to an executable final order of removal.
Key Takeaways
- A noncitizen who lived at liberty for years under a pending asylum application and government-granted work authorization has a protected liberty interest that triggers due process protections upon detention.
- The government bears the burden of proving flight risk or danger by clear and convincing evidence at a bond hearing before a neutral decisionmaker, rather than detaining the person indefinitely without one.
- Respondents' failure to distinguish a controlling prior decision or to dispute the petitioner's facts led the court to grant habeas relief and order immediate release.
- The court barred re-detention unless the government first provides a pre-deprivation bond hearing meeting the clear-and-convincing standard.
- The order expressly left open the separate question of detention once a noncitizen is subject to an executable final order of removal.
Why It Matters
The decision reinforces a developing body of district court rulings holding that long-term immigration detainees with pending asylum claims and work authorization cannot be held without a prompt bond hearing at which the government justifies custody. It underscores that due process limits apply even to visa overstays when the government has effectively acquiesced in the person's presence for years.
By ordering immediate release rather than merely remanding for a bond hearing, the court signaled that the government's failure to offer any distinguishing argument or evidence can result in the strongest form of habeas relief, while still preserving the government's ability to detain under a final removal order.