Unreported / Non-Citable
Background
Mina Rafik Wadie Behnam, a native and citizen of Egypt, entered the United States on a B-1 nonimmigrant visa in September 2022, with authorization apparently expiring in March 2024. He filed an asylum and withholding-of-removal application that remains unadjudicated, and his lawful-permanent-resident spouse filed a pending alien relative petition on his behalf. He has no criminal record, holds a work permit, works as a dental assistant, and is studying to become a dentist. After receiving a February 2026 notice to appear charging removability for overstaying his visa, Behnam complied with reporting requirements, with an immigration court hearing scheduled for February 11, 2027.
At a September 10, 2026 ICE check-in, Behnam was placed in the Intensive Supervision Appearance Program and required to wear an ankle monitor, among other conditions. No immigration judge had found him a danger to the community or a flight risk, nor determined that ISAP conditions were appropriate. The restrictions disrupted his home and work life, and the ankle monitor caused pain requiring medical treatment. Behnam filed his habeas petition on October 5, 2026, and respondents failed to file a timely answer. A footnote noted that the U.S. Attorney's Office had decided not to respond to some immigration-related habeas petitions despite court orders to show cause.
The Court’s Holding
Magistrate Judge Charles F. Eick first explained that habeas relief cannot issue merely because respondents defaulted; the petitioner bears the burden of proving custody in violation of the Constitution, laws, or treaties of the United States under 28 U.S.C. § 2241. The court joined the majority of courts considering the issue in finding that ISAP restrictions qualify as 'custody' for section 2241 purposes, citing the principle that restraints on liberty beyond physical imprisonment can support habeas corpus. The Constitution guarantees the writ's availability to individuals within the United States regardless of citizenship.
Turning to the merits, the court held that due process, which extends to noncitizens present in the United States, requires notice and an opportunity to be heard at a meaningful time and in a meaningful manner under Mathews v. Eldridge. Because immigration authorities had elected not to detain Behnam for years after his overstay, instead allowing him to receive a work permit and build a substantial life while his asylum application remained pending, he possessed a constitutionally protected liberty interest in remaining free from custody. The court concluded that ICE's unilateral imposition of ISAP violated his due process rights, with all three Mathews factors supporting that conclusion based on legally indistinguishable case law.
The petition was granted in part. Respondents were ordered immediately to release Behnam from ISAP conditions, including the ankle monitor, and were enjoined from imposing an ankle monitor or other ISAP conditions without a prior determination by an immigration judge that such conditions are appropriate. The court denied any different or additional relief, stating that Behnam had failed to justify it.
Key Takeaways
- ISAP restrictions, including ankle monitors, can constitute 'custody' under 28 U.S.C. § 2241, allowing noncitizens to challenge them through habeas corpus even without physical detention.
- A respondent's failure to answer a habeas petition does not entitle the petitioner to relief by default; the petitioner must still prove custody violates the Constitution or federal law.
- Noncitizens who overstay visas but are permitted to remain at liberty, work, and build lives while immigration applications are pending may hold a constitutionally protected liberty interest in remaining free from custody.
- ICE cannot unilaterally impose ISAP conditions on such individuals without due process, and future conditions require a prior immigration judge determination of appropriateness.
- The relief was limited to release from ISAP conditions; the court did not disturb the underlying removal proceedings or grant any additional habeas relief.
Why It Matters
The decision adds to a growing body of federal district court authority treating ICE's Intensive Supervision Appearance Program as a form of custody subject to habeas review and constitutional constraint. By requiring an immigration judge's prior determination before ISAP conditions can be reimposed, the order establishes a concrete procedural safeguard rather than simply awarding one-time relief.
The ruling also underscores that the government's litigation default does not substitute for a merits showing, while its substantive analysis signals that long-term non-detained noncitizens with pending applications and established community ties have meaningful due process protection against abrupt electronic monitoring and supervision regimes.