Tanka Raj BC v. Julio Hernandez, Seattle Immigration and Customs Enforcement Director, et al.

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 9 AT SEATTLE 10 11 TANKA RAJ BC, CASE NO. 2:26-cv-03110-TL 12 Petitioner, ORDER ON PETITION FOR WRIT 13 v. OF HABEAS CORPUS 14 JULIO HERNANDEZ, Seattle Immigration and Customs Enforcement Director, et al., 15 Respondents. 16 17 18 This matter is before the Court on Petitioner Tanka Raj BC’s Petition for Habeas Corpus 19 (“habeas petition”). Dkt. No. 1. Respondents are Julio Hernandez, Seattle Immigration and 20 Customs Enforcement (“ICE”) Director; Markwayne Mullin, Secretary of the United States 21 Department of Homeland Security (“DHS”); DHS; Todd Blanche, U.S. Attorney General; and 22 Bruce Scott, Warden of the Northwest ICE Processing Center (“NWIPC”). Id. at 1; see Dkt. 23 No. 3 (Notice of Appearance) at 1 n.1 (substituting Defendant Hernandez for Defendant Laura 24 Hermosillo pursuant to Federal rule of Civil Procedure 25(d)). Having considered the habeas 1 petition, Respondents’ return memorandum (Dkt. No. 4), Petitioner’s traverse (Dkt. No. 10), and 2 the relevant record, the Court GRANTS the petition and ORDERS Respondents to provide Petitioner 3 with a bond hearing. 4 I. BACKGROUND 5 Petitioner, a citizen of Nepal, contests the lawfulness of his current detention at NWIPC. 6 Dkt. No. 1 ¶ 14. Petitioner has been continually detained since he entered the United States 7 without inspection seeking asylum on January 10, 2025. See id. ¶¶ 21–23; Dkt. No. 1-5 (DHS 8 Form I-213) at 3–4. Petitioner asserts that he was persecuted and assaulted in Nepal on account 9 of his political affiliation. Dkt. No. 1 ¶ 51. On October 6, 2025, a merits hearing was held for 10 Petitioner in the Tacoma Immigration Court. Id. ¶ 25; see Dkt. No. 1-4 (Order of the Immigration 11 Judge). Petitioner was denied asylum, denied withholding of removal, and ordered removed to 12 Nepal. Dkt. No. 1-4. Petitioner filed a timely appeal to the Board of Immigration Appeals 13 (“BIA”), which was received on November 4, 2025. Dkt. No. 1 ¶ 26. Petitioner’s briefing was 14 completed on July 23, 2026; no brief was presented by DHS. Id. Petitioner’s appeal remains 15 pending before the BIA. 16 Petitioner filed the instant petition on September 1, 2026, after over 19 months of 17 immigration detention. The habeas petition is now ripe for the Court’s review. 18 II. LEGAL STANDARD 19 “Writs of habeas corpus may be granted by . . . the district courts . . . within their 20 respective jurisdictions.” 28 U.S.C. § 2241(a). Habeas petitioners must prove by a preponderance 21 of the evidence that they are entitled to relief, Davis v. Woodford, 384 F.3d 628, 638 (9th Cir. 22 2004)—that is, that they are “in custody in violation of the Constitution or laws or treaties of the 23 United States,” 28 U.S.C. § 2241(c). 24 1 III. DISCUSSION 2 The Parties agree that Petitioner is detained pursuant to 8 U.S.C. § 1225(b). See Dkt. 3 No. 4 at 2; Dkt. No. 10 at 2. In Jennings v. Rodriguez, 583 U.S. 281 (2018), the Supreme Court 4 read into the language of Section 1225(b)(1) a requirement of “mandat[ory] detention” for 5 detainees under this provision “throughout the completion of applicable proceedings.” 583 U.S. 6 at 302. Neither the Supreme Court nor the Ninth Circuit has settled on a test for assessing the 7 constitutionality of prolonged mandatory detention for noncitizens detained pursuant to 8 U.S.C. 8 § 1225. See Banda v. McAleenan, 385 F. Supp. 3d at 1106 (W.D. Wash. 2019). However, 9 “nearly all district courts that have considered the issue agree that prolonged mandatory 10 detention pending removal proceedings, without a bond hearing, will—at some point—violate 11 the right to due process.” Maliwat v. Scott, No. C25-788, 2025 WL 2256711, at *3 (W.D. Wash. 12 Aug. 7, 2025) (citation modified) (quoting Banda, 385 F. Supp. 3d at 1116); see also Toktosunov 13 v. Wamsley, No. C25-1724, 2025 WL 3492858, at *3 (W.D. Wash. Dec. 5, 2025) (collecting 14 cases). 15 The Parties also agree that the framework courts in this District apply to determine 16 whether a noncitizen’s detention under Section 1225(b) without a bond hearing has become 17 unreasonably and unconstitutionally prolonged is the five-part multifactor test adopted in Banda 18 v. McAleenan, 385 F. Supp. 3d 1099, 1117–18. See Dkt. No. 1 ¶ 42–52; Dkt. No. 4 at 4–11. 19 Courts in this District apply the “Banda test” to assess when detention without a bond hearing 20 under 8 U.S.C. § 1225(a) has become unjustifiably prolonged and thus violative of due process. 21 See, e.g., Maliwat, 2025 WL 2256711, at *3–4; Belqasim v. Bostock, No. C25-1282, 2025 WL 22 3466971 (W.D. Wash. Oct. 28, 2025), report and recommendation adopted sub nom Belqasim v. 23 Hermosillo, 2025 WL 3170929 (Nov. 13, 2025); Hong v. Mayorkas, No. C20-01784, 2022 WL 24 1078627, at *4–5 (W.D. Wash. Apr. 11, 2022). Both Parties present arguments on the Banda 1 factors, and this is the test the Court will apply in determining whether Petitioner’s prolonged 2 detention without a bond hearing violates the Constitution.1 3 A. The Banda Factors 4 In assessing the constitutionality of prolonged mandatory detention, the court in Banda 5 declined to apply the test established in Mathews v. Eldridge, 424 U.S. 319, 334 (1976), because 6 balancing the Mathews factors does “not resolve the more fundamental issue of whether any 7 procedure—such as a bond hearing—must be provided” and was “not particularly probative of 8 whether prolonged mandatory detention has become unreasonable in a particular case.” Banda, 9 385 F. Supp. 3d at 1106–07 (citation modified). Rather, the Court in Banda conducted a case- 10 specific analysis considering the following factors: 11 (1) the total length of detention to date; (2) the likely duration of future detention; (3) the conditions of detention; (4) delays in the removal 12 proceedings caused by the detainee; (5) delays in the removal proceedings caused by the government; and (6) the likelihood that the 13 removal proceedings will result in a final order of removal. 14 Id. at 1117 (quoting Jamal A. v. Whitaker, 358 F. Supp. 3d 853, 858–59 (D. Minn. 2019)). 15 1. Total Length of Detention 16 The length of detention is “the most important factor.” Banda, 385 F. Supp. 3d at 1118. 17 The “context” of a petitioner’s circumstances is crucial to keep in mind, particularly that “[t]he 18 detention that is being examined here is the detention of a human being who has never been 19 found to pose a danger to the community or to be likely to flee if released.” Jamal A., 358 F. 20 Supp. 3d at 859. “The longer mandatory detention continues . . . the harder it is to justify.” 21 1 The habeas petition contains scattered references to a bond hearing held for Petitioner “in June” (Dkt. No. 1 ¶ 27; 22 see also id. ¶ 45). Respondents do not argue that Petitioner has already been provided with a bond hearing. See generally Dkt. No. 4. Respondents’ Declarant Deportation Officer Gabriel Arambula III asserts that “On April 7, 23 2026, Petitioner, with counsel, appeared at a bond hearing before an IJ in Tacoma, Washington. The IJ denied bond finding the IJ did not have jurisdiction to consider bond. Petitioner did not appeal the IJ bond denial to the BIA.” Dkt No. 5 (Arambula Decl.) ¶ 17. Because any such hearing did not actually reach the question of whether bond is 24 appropriate in Petitioner’s case, it is not relevant to the Court’s analysis. 1 Murillo-Chavez v. Garland, No. C22-303, 2022 WL 16555994, at *5 (W.D. Wash. Aug. 30, 2 2022), report and recommendation adopted, 2022 WL 16553176 (Oct. 31, 2022). 3 As of the date of this Order, Petitioner has been in detention for approximately 21 4 months, “which is a very long time.” Banda, 385 F. Supp. 3d at 1118–19 (considering 17-month 5 detention and finding length “strongly favors” a bond hearing). In other words, Petitioner—who 6 has been accused of no crime, and who came to the United States in pursuit of asylum and 7 allegedly fleeing threats to his life—has lost nearly over a year and a half of his life to civil 8 detention pending the outcome of a slow administrative process. Courts in this District have 9 frequently found that detention approaching or exceeding a single year weighs in favor of 10 granting a bond hearing. See, e.g., Toktosunov, 2025 WL 3492858, at *4 (16-month detention 11 weighed in favor of granting a bond hearing); Cardozo v. Bostock, No. C25-871, 2025 WL 12 2592275, at *1 (W.D. Wash. Sept. 8, 2025) (same where detention was 12 to 13 months); 13 Maliwat, 2025 WL 2256711, at *2 (“nearly” 12 months); Rahman v. Garland, No. C24-2132, 14 2025 WL 1920341, at *3 (W.D. Wash. June 26, 2025), report and recommendation adopted sub 15 nom. Anisur R. v. Garland, 2025 WL 1919252 (July 11, 2025) (“almost” 12 months); Ashemuke 16 v. ICE Field Off. Dir., No. C23-1592, 2024 WL 1683797, at *4 (W.D. Wash. Feb. 29, 2024) (11 17 months), report and recommendation adopted, 2024 WL 1676681 (Apr. 18, 2024). 18 Respondents acknowledge that this factor is the most important factor and concede that 19 “[a]s this length of detention is what Courts in this District typically find unreasonable, this 20 factor weighs in favor of Petitioner.” Dkt. No. 4 at 7. The Court agrees and finds that the first 21 Banda factor weighs heavily in favor of granting a bond hearing. 22 2. Likely Duration of Future Detention 23 The second factor for the Court to consider is the likely duration of future detention. 24 Banda, 385 F. Supp. 3d at 1118. Petitioner speculates that he “will likely wait several more 1 months (at a minimum) just to receive a decision” from the BIA. Dkt. No. 1 ¶ 46. Respondents 2 posit that “[w]hile it is unknown as to when the BIA will render decision on Petitioner’s appeal, 3 it is reasonable that a decision will be rendered soon.” Dkt. No. 4 at 7. Both Parties present their 4 positions without any evidence or support. In Banda itself, however, the court noted that “[i]f the 5 BIA affirms, petitioner will have the opportunity to seek review in the Ninth Circuit” and that 6 this overall appeal process “may take up to two years or longer.” 385 F. Supp. 3d at 1119 7 (concluding, “This factor favors granting petitioner a bond hearing.”). 8 According to Petitioner, his BIA appeal was received on November 4, 2025, and his 9 briefing was only received on July 23, 2026. Dkt. No. 1 ¶ 26. Therefore, the Court presumes that 10 the remainder of the process, through resolution of any Ninth Circuit appeal, could push 11 Petitioner’s detention out another year or more. Respondent’s statement that “If Petitioner’s 12 appeal is denied and the IJ’s order of removal affirmed, ICE will be able to effectuate 13 Petitioner’s removal” (Dkt. No. 4 at 7) ignores Petitioner’s right to file a judicial appeal and 14 accompanying stay request, delaying the start of the removal period. See 8 U.S.C. 15 § 1231(a)(1)(B)(ii). 16 Following Banda, the Court considers the length of future detention through any potential 17 Ninth Circuit appeal, and therefore finds that the second Banda factor weighs in favor of 18 granting a bond hearing. 19 3. Conditions of Detention 20 Next, the Court considers the third Banda factor—the conditions of detention. 385 F. 21 Supp. 3d at 1118. “The more that the conditions under which the noncitizen is being held 22 resemble penal confinement, the stronger the argument that he or she is entitled to a bond 23 hearing.” Diaz Reyes v. Wolf, No. C20-0377, 2020 WL 6820903, at *6 (W.D. Wash. Aug. 7, 24 2020) (citation modified) (quoting Jamal A., 358 F. Supp. at 860), report and recommendation 1 adopted as modified, 2020 WL 6820822 (Nov. 20, 2020), aff’d sub nom. Diaz Reyes v. 2 Mayorkas, No. 21-35142, 2021 WL 3082403 (9th Cir. July 21, 2021). 3 Petitioner points to a number of decisions in which courts in this District have found that 4 conditions at the NWIPC are, at best, similar to conditions of penal confinement. Dkt. No. 1 ¶ 48 5 (citing Diaz Reyes, 2020 WL 6820903, at *7; Parada Calderon v. Bostock, No. C24-1619, 2025 6 WL 1047578, at *4 (W.D. Wash. Jan. 17, 2025), report and recommendation adopted in relevant 7 part, 2025 WL 879718 (Mar. 21, 2025); Sarr v. Scott, 765 F. Supp. 3d 1091, 1100–033 (W.D. 8 Wash. 2025) (“the conditions . . . at NWIPC are similar or possibly worse than those . . . penal 9 institutions”); Toktosunov, 2025 WL 3492858, at *5; Duvine v. Hermosillo, 814 F. Supp. 3d 10 1230, 1236 (W.D. Wash. 2026)). As Petitioner notes, “[r]eports by independent outside entities 11 have also documented problems with food, medical neglect, cleanliness, and other issues at 12 NWIPC.” Id. ¶ 49 (citing Univ. of Wash. Ctr. for Hum. Rts., Conditions at the Northwest 13 Detention Center (2026), https://jsis.washington.edu/humanrights/projects/human-rights-at-home 14 /conditions-at-the- northwest-detention-center/ [https://perma.cc/FD5H-VXX4]). On a personal 15 note, Petitioner alleges that he is “confined inside in a restrictive setting, where he does not go 16 outside and the lights always remain on,” and that he has had limited access to care for serious 17 dental issues that have impacted his ability to sleep and eat. Id. 18 In their response, Respondents focus mainly on Petitioner’s characterization of his dental 19 care, providing an extensive list of dental visits provided by Dr. Eddie Wang, a Board-Certified 20 Family Medicine physician and the Clinic Director of the NWIPC, who in turn sourced his 21 account from “case review[] obtained from various records and systems maintained by ICE in 22 the regular course of business.” See Dkt. No. 4 at 8–10 (citing Dkt. No. 6 (Wang Decl.) ¶¶ 7–17); 23 Dkt. No. 6 ¶¶ 1, 6. Dr. Wang opines that Petitioner has been provided “with adequate care and 24 critical referrals since his arrival at the NWIPC,” although he makes no other mention of 1 referrals in his declaration. Dkt. No. 6 ¶ 20.2 Respondents also assert, relying on the declaration 2 of Deportation Officer Gabriel Arambula III, that “[a]t the NWIPC, Petitioner has the option to 3 go outside. There is an indoor recreation yard available to every housing unit that has fresh air 4 [and] detainees are allowed to have one hour outside recreation sessions twice each day.” Dkt. 5 No. 4 at 8 (citing Dkt. No. 5 (Arambula Decl.) ¶ 21). Petitioner points out that an “indoor 6 recreation yard” clearly does not provide the “option to go outside,” and emphasizes that he 7 “never” goes outside and, due to the number of detainees at NWIPC, “is lucky to have ‘window 8 time’ once per week.” Dkt. No. 10 at 4. Respondents do not address the independent report 9 Petitioner cites or the voluminous findings by this and other Courts that NWIPC is a prison-like 10 setting. Petitioner’s account of conditions at NWIPC is consistent with the repeated findings of 11 this Court and others in this District, and the Court finds that the third Banda factor weighs in 12 favor of granting a bond hearing. 13 4. Delays in Removal Proceedings 14 Under the fourth and fifth Banda factors, the Court considers delays in the removal 15 proceedings caused by the detainee or by the government, respectively. 385 F. Supp. 3d at 1118. 16 Petitioner argues that this factor favors him because “[i]t took [Respondents] nearly ten months 17 to find a translator for Mr. BC when he agreed to a Nepali translator he did not understand 18 effectively; they then rescheduled Mr. BC’s court date seven times, further prolonging the 19 process.” Dkt. No. 1 ¶ 50. Respondents counter that any interpreter-related delays were “due to 20 Petitioner’s misrepresentations that he could not speak Nepali,” and that some continuances were 21 requested by Petitioner to give him time to seek legal counsel and/or file an asylum application. 22 Dkt. No. 4 at 3; accord id. at 10. On Reply, Petitioner provides more context about possible 23 2 Respondents have not provided Petitioner’s actual dental records or any declaration by any person with personal 24 knowledge of his treatment, only Dr. Wang’s secondhand summary of absent records. 1 underreporting by the Nepali government on the prevalence of “small languages” (such as his 2 native Chhantayal) and on his own limited command of Nepali, which was used in his schools 3 but not his home. See Dkt. No. 10 at 5. 4 The starkest disagreement here is whether blameworthy delays arise from Petitioner’s 5 allegedly unnecessary request for a Chhantayal interpreter, or from the Immigration Court’s 6 failure to provide a Chhantayal interpreter during the months following its determination that one 7 should be provided. On the facts in the record, this is a dispute that the Court cannot (and need 8 not) resolve. Ultimately, the parties agree that any language-related delays were limited to 9 “approximately four months” (Dkt. No. 4 at 11) or “three months” (Dkt. No. 10 at 6). Unable to 10 assign blame for these delays, the Court simply excludes from its analysis on the fourth and fifth 11 Banda factors the four months following April 17, 2025, when Petitioner first informed the 12 Immigration Court that he speaks Chhantayal. See Dkt. No. 5 ¶ 8. The Court is left with 13 approximately 17 months of immigration detention as of the date of this order—sufficient in 14 itself to constitute prolonged detention—during which neither Party is shown to have caused 15 unnecessary delay. The Court therefore finds both the fourth and fifth Banda factors to be 16 neutral. 17 5. Likelihood That Proceedings Will Result in a Final Order of Removal 18 Under the sixth Banda factor, the Court considers “the likelihood that removal 19 proceedings will culminate in a final order of removal.” 385 F. Supp. 3d at 1120 (quoting Jamal 20 A., 358 F. Supp. 3d at 860). “In other words, the Court considers whether the noncitizen has 21 asserted any defenses to removal.” Id. Petitioner does not directly address the likelihood that his 22 removal proceedings will result in a final order of removal, but rather asserts that “[i]t is likely 23 that Mr. BC would successfully receive a stay of removal from Nepal because he has 24 1 demonstrated he is more likely than not to face persecution there.” Dkt. No. 1 ¶ 51. Respondents 2 suggest that the Court find this factor neutral. 3 In Banda, this factor was considered neutral where the petitioner had submitted an 4 asylum application, the application had been denied, and the court did “not have sufficient 5 information to determine whether the appeal [wa]s nonfrivolous or whether petitioner ultimately 6 w[ould] prevail.” 385 F. Supp. 3d at 1120. This Court, finding itself in a similar situation, agrees 7 with Respondents: the sixth Banda factor is neutral here as well. 8 * * * 9 In sum, three of the six Banda factors, including the most important factor, weigh in 10 favor of granting Petitioner a bond hearing, three are neutral, and none weighs against granting a 11 bond hearing. Given the weight of the factors that favor Petitioner, the Court finds that his 12 detention without a bond hearing has become unreasonably prolonged. See Maliwat, 2025 WL 13 2256711, at *9 (finding petitioner entitled to a bond hearing where two factors favor petitioner, 14 four factors are neutral, and none favors respondents); Fadul Mohamed v. Immigr. & Customs 15 Enf’t Field Off. Dir., No. C25-181, 2026 WL 497096, at *6 (W.D. Wash. Feb. 23, 2026) (same 16 where three factors favor petitioner, two are neutral, and one favors respondents); Rahman, 2025 17 WL 1920341, at *5 (same where four factors favor petitioner, one is neutral, and one favors 18 respondents); Hong, 2022 WL 1078627, at *7 (same where four factors favor petitioner, two are 19 neutral, and none favors respondents). 20 B. Petitioner’s Arguments Under Matthews 21 In addition to his Banda analysis, Petitioner argues that his detention is unconstitutional 22 under the due-process test established in Mathews v. Eldridge, 424 U.S. 319. The Court declines 23 to apply the Mathews test here. As Petitioner notes (see Dkt. No. 1 ¶ 43), courts in this District 24 generally apply Banda, not Matthews, to claims of prolonged detention under Section 1225(b). 1 This is for good reason. Matthews balancing allows courts to weigh the adequacy of the process 2 provided when a person’s liberty or property is taken away. But here, Petitioner alleges no 3 inadequacy of process when he was first detained and thereby deprived of his liberty on January 4 10, 2025. See generally Dkt. No. 1. The violation he alleges is not related to the process of 5 deprivation, but the prolonged nature of his detention; Mathews balancing is ill-suited for such a 6 claim. Therefore, Petitioner’s arguments under Mathews do not provide an additional basis for 7 relief beyond what Petitioner has established through the Banda analysis. 8 C. Appropriate Relief 9 Having found that Petitioner’s prolonged detention without a bond hearing has become 10 unreasonable, the Court will now address his requests for relief. Petitioner asks the Court to 11 order his immediate release unless Respondents hold a custody hearing for Petitioner within 12 fourteen days, at which Respondents must establish by clear and convincing evidence that 13 Petitioner poses either a flight risk or a danger to the community. Dkt. No. 1 at 18. Petitioner’s 14 proposed assignment of burden is supported by Ninth Circuit precedent, see Singh v. Holder, 638 15 F.3d 1196, 1203 (9th Cir. 2011), and his request is consistent with relief commonly ordered in 16 this District to habeas petitioners who prevail under Banda. See, e.g., Cardozo, 2025 WL 17 2592275, at *3 (ordering bond hearing within 14 days “that complies with the requirements of 18 Singh v. Holder”); Maliwat, 2025 WL 2256711, at *10 (same); but see Belqasim v. Hermosillo, 19 No. C25-1282, 2025 WL 3170929 (Nov. 13, 2025) (requiring hearing within seven days of order 20 adopting report and recommendation). In lieu of a hearing, Respondents may comply with this 21 order by releasing Petitioner. 22 IV. CONCLUSION 23 Accordingly, the Court ORDERS as follows: 24 (1) Petitioner’s petition for writ of habeas corpus (Dkt. No. 1) is GRANTED. 1 (2) Within fourteen (14) days of this Order, Respondents SHALL either release 2 Petitioner or provide him with a bond hearing before an immigration judge. At the 3 hearing, the government SHALL bear the burden of proving by clear and 4 convincing evidence that Petitioner is a danger to the community or a flight risk. 5 Respondents SHALL ensure that the hearing is recorded. 6 (3) Within fifteen (15) days of this Order, Respondents SHALL file a Status Report 7 with the Court either confirming that Petitioner received a bond hearing—and 8 informing the Court of the results of that hearing—or confirming his release. 9 (4) Any motion requesting fees should be filed within the deadlines set by the Equal 10 Access to Justice Act, 28 U.S.C. § 2412. 11 Dated this 9th day of October, 2026. 12 A 13 Tana Lin United States District Judge 14 15 16 17 18 19 20 21 22 23 24