Reported / Citable
Background
Samin Habib-Hussain, a Pakistani national, entered the United States on April 27, 2025, and was immediately taken into immigration custody. U.S. Customs and Immigration Services processed him for expedited removal and issued a negative credible fear finding, but an immigration judge (IJ) vacated that finding and placed him in full removal proceedings. DHS did not serve a Notice to Appear until March 13, 2026 — nearly eleven months after his initial detention. Habib-Hussain has never been released into the United States interior, paroled, or admitted, and his asylum claim remained pending before an IJ at the time of the petition, with no merits hearing yet held.
By the time Habib-Hussain filed his habeas petition on May 11, 2026, he had been detained for over thirteen months. He sought either immediate release or an individualized bond hearing, arguing that continued detention without a custody determination violated the Due Process Clause of the Fifth Amendment. He expressly conceded that no statutory right to a bond hearing exists for arriving aliens under 8 U.S.C. § 1225, framing his claim solely on constitutional grounds.
Respondents — the warden and federal officials including the DHS Secretary and Attorney General — argued that as an arriving alien Habib-Hussain had no entitlement to a bond hearing and that any claim of unconstitutionally prolonged detention was speculative. The court ordered briefing and took up the constitutional question directly.
The Court’s Holding
Judge Kathleen Cardone granted the petition in part, holding that Habib-Hussain’s detention had become unconstitutionally prolonged under the Fifth Amendment’s Due Process Clause. Applying a three-factor framework drawn from Perez v. Decker, the court examined: (1) the length of detention, (2) responsibility for delays, and (3) whether the petitioner had asserted defenses to removal. Two factors weighed in Habib-Hussain’s favor and one was neutral, leading the court to conclude that continued detention without an individualized custody determination was unconstitutional.
On the length factor, the court noted that Habib-Hussain had been detained longer than petitioners whose detention was found unreasonably prolonged in comparable cases — including nine months in Perez, ten months in Lett v. Decker, and twelve months in Da Silva v. Nielsen — and that his asylum claim had not yet received a merits ruling from an IJ. On the defenses factor, the court found that the existence of a pending, unadjudicated asylum application weighed in his favor, particularly given that an IJ had already overturned USCIS’s initial negative credible fear finding. The responsibility-for-delays factor was deemed neutral because neither party provided sufficient information to attribute fault.
As relief, the court ordered Respondents, by June 22, 2026, to either (1) provide Habib-Hussain a bond hearing before an IJ — at which the Government must bear the burden of justifying continued detention by clear and convincing evidence of dangerousness or flight risk — or (2) release him from custody under reasonable conditions of supervision. The court expressly cautioned that a bond hearing in which the IJ denies relief for lack of jurisdiction does not satisfy the order and would require release.
Key Takeaways
- Arriving aliens have no statutory right to a bond hearing under 8 U.S.C. § 1225, but may still bring a Fifth Amendment due process challenge when pre-removal-order detention becomes unreasonably prolonged.
- Courts applying the Perez v. Decker three-factor framework (length of detention, party responsibility for delays, and existence of defenses to removal) have found detention unconstitutional at nine, ten, and twelve months when an IJ has yet to rule on the merits; here, thirteen-plus months with no IJ decision compelled the same result.
- A pending, unadjudicated asylum application — especially one where an IJ has already overturned a negative credible fear finding — constitutes a cognizable defense to removal weighing in a petitioner’s favor even without a prediction of ultimate success.
- Where a bond hearing is ordered as relief, the Government bears the burden of justifying detention by clear and convincing evidence of dangerousness or flight risk; a jurisdictional denial by the IJ does not satisfy the order and mandates release.
Why It Matters
This decision reinforces the growing body of district court precedent holding that the Due Process Clause imposes limits on mandatory immigration detention even for arriving aliens who lack any statutory pathway to a bond hearing. With immigration court backlogs routinely stretching cases over multiple years, the ruling signals that prolonged pre-removal-order detention — particularly where an asylum claim remains wholly unadjudicated at the IJ level — is constitutionally vulnerable regardless of a noncitizen’s formal entry status.
For practitioners, the case underscores the viability of constitutional habeas claims as a distinct theory from statutory bond rights, and highlights the evidentiary burden the Government must meet once a court-ordered bond hearing is required. The court’s explicit warning that a jurisdictional bond denial will not satisfy the order also forecloses a potential government end-run around the remedy.