Nikita Prokopev v. Christopher Larose; Gregory Archambeault; Kristi Noem; and Pamela Bondi
- Proceeding
- original
- Outcome
- other — While detained, On June 1 2, 2025, an Immigration Judge (“IJ”) denied his asylum application and entered an order 2 of remov
- Area
- civil
- Panel
- James E. Simmons (author)
Analysis
The court considered a pro se petition for a writ of habeas corpus filed by an immigration detainee challenging the legality of his detention. The court denied the petition without prejudice, finding that the detention was lawful under the 90-day removal period following the finalization of his removal order.
| What the court decided | The model |
|---|---|
Petition for Writ of Habeas Corpus denied without prejudice“For the reasons discussed above, the Court DENIES the Petition without prejudice.” | agree with court The court correctly identified that the BIA's denial of the appeal on November 28, 2025, rendered the order of removal final. Under 8 U.S.C. § 1231(a)(2), the government is authorized to detain an alien for up to 90 days following the final order of removal for the purpose of effectuating removal. As the order was issued on January 7, 2026, the 90-day period had not yet expired. Therefore, the detention was statutorily authorized, and the habeas petition challenging the legality of the detention was premature. Denying without prejudice is appropriate because the petitioner may refile if the detention continues beyond the statutory period. |
The order itself: sound — The order correctly applies the statutory framework of 8 U.S.C. § 1231(a) to the facts. It accurately notes that the BIA decision finalized the removal order, triggering the 90-day removal period. Since the petition was resolved within this period, the detention was lawful. The court appropriately denied the petition without prejudice to allow for future challenges if the detention becomes unlawful (i.e., exceeds the 90-day limit).
Opinion
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 NIKITA PROKOPEV, Case No.: 25-cv-3441-JES-MSB 12 Petitioner, ORDER DENYING PETITION FOR 13 v. WRIT OF HABEAS CORPUS WITHOUT PREJUDICE 14 CHRISTOPHER LAROSE; GREGORY ARCHAMBEAULT; KRISTI NOEM; 15 and PAMELA BONDI, [ECF No. 1] 16 Respondents. 17 18 Before the Court is Petitioner Nikita Propokev’s (“Petitioner”) Petition for Writ of 19 Habeas Corpus pursuant to 28 U.S.C. § 2241. ECF No. 1. Pursuant to the Court’s Order to 20 Show Cause (ECF No. 5), Respondents filed a return. ECF No. 6. To date, Petitioner has 21 not filed a traverse. After due consideration and for the reasons below, the Court DENIES 22 WITHOUT PREJUDICE the petition. 23 I. BACKGROUND 24 Petitioner is a native of the Russian Federation, and presented himself to the United 25 States border on November 20, 2024, seeking admission. ECF No. 1 at 4. He was put into 26 removal proceedings at that time. ECF No. 6-1. He was detained and transferred to Otay 27 Mesa Detention Center, where he remains to date. ECF No. 1 at 4. While detained, 28 Petitioner filed an asylum application and proceeded through the removal process. On June 1 2, 2025, an Immigration Judge (“IJ”) denied his asylum application and entered an order 2 of removal against him. ECF No. 6-2. Petitioner appealed the decision to the Board of 3 Immigration Appeals (“BIA”) on June 23, 2025. ECF No. 1 at 5. The BIA denied his appeal 4 on November 28, 2025. ECF No. 6-3. 5 II. LEGAL STANDARD 6 A writ of habeas corpus is “available to every individual detained within the United 7 States.” Hamdi v. Rumsfeld, 542 U.S. 507, 525 (2004) (citing U.S. Const., Art I, § 9, cl. 2). 8 “The essence of habeas corpus is an attack by a person in custody upon the legality of that 9 custody, and . . . the traditional function of the writ is to secure release from illegal 10 custody.” Preiser v. Rodriguez, 411 U.S. 475, 484 (1973). A court may grant a writ of 11 habeas corpus to a petitioner who demonstrates to be in custody in violation of the 12 Constitution or federal law. 28 U.S.C. § 2241(c)(3). Traditionally, “the writ of habeas 13 corpus has served as a means of reviewing the legality of Executive detention, and it is in 14 that context that its protections have been strongest.” I.N.S. v. St. Cyr, 533 U.S. 289, 301 15 (2001). Accordingly, challenges to immigration-related detention are within the purview 16 of a district court’s habeas jurisdiction. Zadvydas v. Davis, 533 U.S. 678, 687 (2001); see 17 also Demore v. Kim, 538 U.S. 510, 517 (2003). 18 III. DISCUSSION 19 Respondents argue that, with the BIA’s denial of Petitioner’s appeal, his removal 20 order is now final as of November 28, 2025. ECF No. 6 at 1. Thus, Respondents argue that 21 they are within their statutorily mandated 90-day period of detention provided by 8 U.S.C. 22 § 1231(a), and Petitioner’s challenge to his detention is premature. Id. 23 The Court agrees with Respondents. Petitioner proceeds pro se and at the time he 24 mailed and signed his petition, on November 21, 2025, it appears the BIA’s denial had not 25 yet been issued. See ECF No. 1 at 8. However, the BIA’s denial now changes the situation. 26 Respondents submitted their return to the petition on December 15, 2025, and since then, 27 the Court has not received a traverse or any other filing from Petitioner challenging the 28 finality of the removal order. See ECF No. 6. Thus, at this time and with the information 1 ||in front of it, the Court finds that Petitioner’s detention falls under 8 U.S.C. § 1231(a)(2) 2 || because there is now no pending case and a final order of removal against him. The BIA 3 ||issued its decision on November 28, 2025, starting the 90-day removal period, which is 4 ||currently still in effect. See 8 U.S.C. § 1231(a)(1)(A)-(B). 5 Accordingly, at this time, the Court must DENY Petitioner’s petition. The denial, 6 ||however, is without prejudice to Petitioner refiling should his situation change, for 7 ||example, by his filing a further appeal that would move his removal proceeding back to 8 || pending or should he be subject to prolonged detention after this 90-day period expires, if 9 || Respondents are unable to successfully remove him during that time. 10 IV. CONCLUSION 1] For the reasons discussed above, the Court DENIES the Petition without prejudice. 12 || The Clerk is directed to close the case. 13 IT IS SO ORDERED. 14 || Dated: January 7, 2026 15 = a, 16 Honorable James E. Sunmons Jr. 7 United States District Judge 18 19 20 21 22 23 24 25 26 27 28