# Gyaltsen

> District Court, E.D. New York · July 24, 2026

URL: https://www.frixlaw.com/law-library/cases/11412461

## Case

- **Full name:** Dhundup Gyaltsen v. Raul Maldonado, et al.
- **Court:** District Court, E.D. New York
- **Decided:** July 24, 2026
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

DHUNDUP GYALTSEN,

Petitioner,
MEMORANDUM DECISION AND

ORDER
v.

26-cv-3314 (BMC)
RAUL MALDONADO, et al.,

Respondents.

COGAN, District Judge.

Petitioner, a native and citizen of China with a passport issued by India, seeks habeas
relief under 28 U.S.C. § 2241. Rather than asking for immediate release, petitioner seeks a bond
hearing, at which respondents must justify his ongoing detention by clear and convincing
evidence. For the reasons below, the petition is granted.
BACKGROUND
In 2015, petitioner arrived in Florida as an alien crewman aboard a cruise liner. He was
granted a temporary landing permit that required him to leave within 29 days of entry.1
Petitioner never left the country, and he has since applied for asylum. During a prescheduled
asylum interview in 2025, he was arrested and remains detained today.
Respondents assert, and petitioner does not deny, that petitioner’s detention is authorized
by 8 U.S.C. § 1282(b), which permits “any immigration officer [to], in his discretion . . . take [an
overstaying] crewman into custody” pursuant to “regulations prescribed by the Attorney
General.” The regulations relevant here are 8 C.F.R. § 208 et seq. and § 252 et seq.

1 A temporary landing permit is colloquially referred to as a “D-1 Visa” because it is authorized for aliens described
in subsection (D)(i) of the statute. See 8 U.S.C. § 1101(a)(15)(D)(i) (“The term ‘immigrant’ means every alien
except an . . . an alien crewman serving in good faith as such in a capacity required for normal operation and service
on board a vessel . . .”).
“A crewman who was granted landing privileges [and] has not departed [] on the vessel
of arrival . . . shall be removed from the United States without a hearing.” Id. § 252.2(b). The
exception is a crewman who files for asylum, such as petitioner. See id. § 208.2(c)(1). Such
crewmen are placed in so-called “asylum-only” proceedings, at which the immigration courts are

limited to a determination of whether the alien is eligible for asylum . . . and
whether asylum shall be granted in the exercise of discretion . . . During such
proceedings, all parties are prohibited from raising or considering any other
issues, including but not limited to issues of admissibility, deportability, eligibility
for waivers, and eligibility for any other form of relief.

Id. § 208.2(c)(3)(i). Thus, when petitioner sought to be released on bond, the immigration court
denied relief, finding it had “no[] jurisdiction to conduct a bond hearing or redetermine custody
conditions for those in asylum-only proceedings.”
Petitioner contends that, notwithstanding the above, he is entitled to a burden-shifted
bond hearing because the duration of his detention has become unreasonable. Respondents
counter that (1) the duration of petitioner’s detention is not unreasonable and (2) even if it is
unreasonable, he cannot be released on bond.
DISCUSSION
I. Legal Standard
Habeas corpus “stands as a safeguard against imprisonment of those held in violation of
the law.” Harrington v. Richter, 562 U.S. 86, 91 (2011); see also Öztürk v. Hyde, 136 F.4th 382,
393 (2d Cir. 2025). The Court may issue a writ under Section 2241 “whenever a petitioner is ‘in
custody in violation of the Constitution or law or treaties of the United States.’” Wang v.
Ashcroft, 320 F.3d 130, 140 (2d Cir. 2003) (quoting 28 U.S.C. § 2241(c)). “Federal courts have
jurisdiction to hear habeas corpus claims by non-citizens challenging the constitutionality of their
detention.” Lopez v. Sessions, No. 18-cv-4189, 2018 WL 2932726, at *6 (S.D.N.Y. June 12,
2018) (citing Demore v. Kim, 538 U.S. 510, 516-17 (2003)).
II. Analysis
This petition presents two issues: (1) whether the duration of petitioner’s detention has

become unreasonable, and if so, (2) whether petitioner is eligible to be released on bond,
notwithstanding 8 C.F.R. § 208.2(c)(3)(i).
A. Detention
In Zadvydas v. Davis, 533 U.S. 678, 682 (2001), the Supreme Court held that, because
“indefinite detention of aliens [already ordered removed] would raise serious constitutional
concerns, [detention under 8 U.S.C. § 1231] contain[s] an implicit [six-month] ‘reasonable time’
limitation, the application of which is subject to federal court review.” In Black v. Decker, 103
F.4th 133, 138 (2d Cir. 2024), the Second Circuit extended Zadvydas to the detention of aliens
who had not yet been ordered removed, holding that an alien’s “right to due process precludes
his unreasonably prolonged detention under [8 U.S.C. §] 1226(c) without a bond hearing.”

Respondents argue (1) that Black does not apply to petitioner, and (2) even if Black
applies, petitioner’s detention is not unreasonable. The Court disagrees.
i. Applicability
Respondents first argue that Black simply does not apply to petitioner because Black
concerned aliens detained under § 1226(c), whereas petitioner is detained under § 1282(b). That
distinction is immaterial. In Black, the question was whether due process entitled an alien to a
bond hearing even though the statute authorizing the alien’s detention (§ 1226(c)) did not
contemplate release on bond. That’s the exact question that we have here: does due process
entitle petitioner to a bond hearing even though the statute authorizing his detention (§ 1282(b))
does not contemplate release on bond?
The only relevant distinction that can be made between the aliens in Black and the
petitioner here is that the former were criminals and the latter is not. That distinction does not

compel a different result. The Court agrees with petitioner that, “from a common-sense
perspective, if the due process principles articulated in Black apply to ‘criminal aliens’ who
Congress commanded ‘shall’ be detained, see 8 U.S.C. § 1226(c), then the same principles
logically apply to non-criminal detainees where there is no . . . ‘mandatory’ command of
detention,” such as petitioner. Accordingly, Black applies.
ii. Petitioner’s Detention
It is undisputed that petitioner has been detained for about a year, i.e., beyond “the six-
month, presumptively reasonable duration of detention.” Mathieu v. Dep’t of Homeland Sec.,
26-cv-4630, 2026 WL 1747084, at *4 (S.D.N.Y. June 17, 2026) (citing Zadvydas, 533 U.S. at
701). Thus, under Black, petitioner’s detention has become “presumptively unreasonable.” Raju

Ahmed v. Maldonado, No. 26-cv-3656, 2026 WL 2042849, at *4 (E.D.N.Y. July 15, 2026).
Respondents attempt to rebut that presumption by casting petitioner’s ongoing detention
as self-inflicted, i.e., that he remains detained only because he chose to appeal his removal order.
There is some intuitive appeal to respondents’ position, and there is at least one case from the
Second Circuit that supports that principle.
In Doherty v. Thornburgh, 943 F.2d 204, 211 (2d Cir. 1991), the Second Circuit found no
constitutional violation where an alien, already convicted of murder by the United Kingdom, was
detained without bond for eight years pending deportation or extradition, owing almost
exclusively to his own litigation conduct:
An examination of the causes of the length of this litigation and, consequently, of
Doherty’s detention, supports our conclusion. Over the course of the last eight
years, Doherty has exercised skillfully his rights under the deportation statute,
delaying and perhaps preventing the outcome sought by the government. He has
resisted deportation when it would result in his return to Great Britain, agreed to
deportation when it would not result in his return, and then resumed his resistance
to deportation when circumstances changed. Only in the face of the impending
elimination of [an applicable] exception did Doherty seek to expedite the
deportation process and, when it appeared that his destination of choice no longer
offered a haven from extradition, he sought relief from deportation, once again
slowing down the process. Although this litigation strategy is perfectly
permissible, we hold that Doherty may not rely on the extra time resulting
therefrom to claim that his prolonged detention violates substantive due process.

But Doherty was a narrow decision limited to the unique aspects of that case: despite the
petitioner’s “perfectly permissible” litigation conduct, it was beyond obvious that his intention
behind that conduct was delaying his deportation or extradition by any means necessary. Id. at
205, 211.
In other words, Doherty does not broadly stand for the proposition that any delay
attributable to an alien-petitioner’s litigation conduct cannot militate against the constitutionality
of the alien’s detention. Rather, Doherty is a cautionary tale about self-inflicted delay for the
mere sake of delay. Id. at 211 (“Were Doherty's lengthy detention largely the result of a
government strategy intended to delay, we might find a due process violation.”).
To be sure, Doherty does not govern this case, the Court need only look as far as Black,
where the Second Circuit held that the duration of an alien’s bondless detention violated due
process at the six-month mark, Black, 103 F.4th at 150, even though the petitioners “were long-
ago adjudicated to be removable, and their detentions continued only because of the normal
consideration of an alien’s appeal of adverse decisions,” Black v. Almodovar, 156 F.4th 171, 186
(2d Cir. 2025) (Menashi, J., dissenting from denial of reh’g en banc).
The Circuit’s ruling in Black, notwithstanding Doherty, confirms that even when an
alien’s detention is prolonged beyond the presumptively reasonable duration only by the alien’s
appeal, such detention is still presumptively unreasonable. Respondents have failed to rebut that
presumption here, and thus petitioner’s bondless detention has been unreasonably prolonged.

B. Bond
“If a district court concludes detention has been unreasonably prolonged, it may ‘order a
new bond hearing at which the Government will be called upon to justify continued detention.’”
Mahdawi v. Trump, No. 25-1113, _ F.4th _, 2026 WL 2090981, at *12 n.15 (2d Cir. July 21,
2026) (alterations adopted) (quoting Velasco Lopez v. Decker, 978 F.3d 842, 855 (2d Cir.
2020)). Respondents contend that nonetheless, petitioner cannot be released on bond because the
custody conditions of an alien in asylum-only proceedings are unreviewable by an immigration
court under 8 C.F.R. § 208.2(c)(3)(i). That’s wrong.
As the Second Circuit very recently reaffirmed, a detained alien can always seek release
on bond in “an administrative hearing pursuant to Matter of Joseph, 22 I. & N. Dec. 799 (B.I.A.

1999)”:
As the Supreme Court has recognized, a detained alien in a Joseph hearing is
“entitled to raise any nonfrivolous argument available to demonstrate that he was
not properly included in a mandatory detention category.” Demore, 538 U.S. at
514; see also 8 C.F.R. § 1003.19(h)(2)(ii) (2026). If the individual succeeds at the
hearing, an IJ will “consider the question of bond.” Joseph, 22 I. & N. Dec. at
806. The IJ can then order release on bond if the alien has “demonstrate[d] to the
satisfaction of the Immigration Judge that his release would not pose a danger to
property or persons, and that the respondent is likely to appear for any future
proceeding.” Matter of Salas Pena, 29 I. & N. Dec. 173, 174 (B.I.A. 2025).

Mahdawi, 2026 WL 2090981, at *11. This Court has already determined that petitioner’s
“mandatory [i.e., bondless] detention” is “not proper,” id. (quoting Demore, 538 U.S. at 514),
because it has become unreasonably prolonged. See supra. Thus, the only question for the
immigration judge is whether petitioner is a flight risk or danger to the community, i.e., the
typical considerations at a bond hearing. Accordingly, petitioner is entitled to a “burden-shifted
bond hearing . . . at which the Government bears the burden of showing, by clear and convincing
evidence, that he is either a danger to the community or a flight risk.” Mathieu, 2026 WL
1747084, at *3; see also Velasco Lopez, 978 F.3d at 855-57.
CONCLUSION
The petition is granted. Respondents must promptly provide petitioner with a bond
hearing, at which respondents bear the burden of showing, by clear and convincing evidence,
that petitioner poses a danger to the community or a flight risk.

SO ORDERED.
Buan UW. Cogan
Dated: Brooklyn, New York U.S.D.J.
July 24, 2026

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11412461. Public record. Not legal advice.