Unreported / Non-Citable
Background
Radiana Dzhavgova was admitted to the United States in June 2011 on a nonimmigrant visa. The record cited by the court shows that she applied on August 25, 2011 to extend or change her status, that her visa expired on September 10, 2011, and that immigration authorities denied her application on December 25, 2011. She has lived in the country since. She alleged that she holds a REAL ID-compliant driver's license and a valid Social Security number, has no criminal record or immigration court history, and has a sister, brother-in-law and niece who are U.S. citizens.
On September 15, 2026, she flew from Chicago to San Francisco to help her sister after an operation. On September 22, while she waited at the airport for her flight home, ICE detained her. She alleged that ICE gave her no warrant or notice. An ICE officer decided against bond or any alternative to detention, and she asked an immigration judge to review that decision, but no hearing had been held after weeks in custody. Through counsel she petitioned under 28 U.S.C. § 2241. Respondents argued that she is held under 8 U.S.C. § 1226(a) and is entitled to a bond hearing in immigration court, yet acknowledged that the case fits a category in which the court has ordered immediate release.
The Court’s Holding
Magistrate Judge Jeremy D. Peterson recommended that the petition be granted. Relying on earlier Eastern District decisions, Oliveira Tinoco v. Albarran, Kaur v. Chestnut and Zhou v. Warden, he found that a noncitizen admitted on a visa and not detained within a reasonable time after lawful status ended develops a vested liberty interest in remaining free from detention. That interest cannot be revoked without notice and a pre-deprivation hearing before a neutral arbiter at which bond is considered. He found that Dzhavgova acquired that interest during fifteen years in the country, noting her citizen relatives and the unchallenged assertion that she is a productive member of the community with deep roots.
The court found that she received no pre-deprivation process: according to her petition, she was taken into custody abruptly, without notice or a warrant. It also found that she had not received the process available under section 1226(a), because her requested custody redetermination had not occurred. Release was the typical habeas remedy because respondents offered no evidence or argument of danger or flight risk, and she has no criminal history.
The recommended order directs immediate release with no added restrictions unless a future pre-deprivation hearing finds them necessary. Any re-detention would require at least seven days' notice and a constitutionally compliant bond hearing before a neutral arbiter, with the government bearing the burden of proving flight risk or danger by clear and convincing evidence. It expressly does not address detention if she becomes subject to an executable final order of removal. The clerk would serve the facility, enter judgment and close the case.
Key Takeaways
- These are findings and recommendations, not a final judgment; release and closure of the case depend on adoption by the assigned District Judge, and objections were due within three days.
- The reasoning rests on earlier decisions of the same court rather than appellate authority, and respondents acknowledged that this case fits the line of cases ordering release instead of contesting it.
- The court treated a long, undetected stay after a visa expired as creating a liberty interest that requires pre-deprivation notice and a hearing before a neutral arbiter.
- The recommended relief is conditional: re-detention requires seven days' notice and a hearing at which the government must prove flight risk or danger by clear and convincing evidence.
Why It Matters
The recommendation applies a developing line of Eastern District of California rulings to a petitioner detained at an airport after fifteen years of open life in the country. If adopted, its practical effect is release rather than merely a bond hearing in immigration court, which respondents had said was available under section 1226(a).
Its weight is limited. A magistrate judge's recommendation is not precedent, and it does not decide any removal proceeding or the rules for a person with an executable final removal order. The facts, including the alleged lack of notice and a long, law-abiding residence, went largely uncontested by respondents, so outcomes may differ where the government disputes them.