Judge Holds Habeas Corpus Hearing Regarding Kseniia Petrova

Federal District Court Judge Christina Reiss held a hearing regarding the habeas corpus petition filed for Russian-born immigrant Kseniia Petrova who was detained by Customs and Border Protection for having undeclared preserved frog embryos in her luggage.

Reiss began by asking what the court would cover in the hearing. She needed clarification because Petrova’s attorney Gregory Romanovsky filed a habeas corpus petition in Vermont, where Ptrova was first taken after being detained, but the government filed a motion to dismiss for lack of jurisdiction because they transferred her to detention in Louisiana.

The hearing began by taking up the government’s motion to dismiss. Reiss had a lot of questions for the government.

In light of allegations that Petrova’s detention was unlawsful, Reiss wanted to know about the question of whether she could release Petrova. Neither side briefed about that. But she noted the recent ruling that ordered release of Rümeysa Öztürk, which Reiss said meant the court can consider detention versus release. Reiss said she was considering scheduling a hearing to consider that.

Reiss understood Immigration and Customs Enforcement said Petrova is a flight risk, but no judge had found similarly.

Reiss wanted to know what happened when Petrova arrived at Boston’s Logan Airport from France. Reiss wanted to know how competent her command of English was. She noted allegations by the government about how Petrova acted and claims that she was reluctant to answer, but she is young and being questioned by CBP is a “nerve-racking experience.”

Reiss wanted to know where a CBP officer gets authority on their own to revoke a visa, as CBP says it did. Also, specifically what were the biological samples Petrova brought into country?

Reiss wanted to hear from the parties about how exhaustion of administrative remedies intersects with habeas corpus actions, and how the case intersects with other court decisions such as Öztürk, Mahdawi, and 2nd Circuit Appeals Court cases.

Returning to the question of jurisdiction, Reiss said, two cases say that cases like this one are properly brought before the court in Vermont, so why would her court lose jurisdiction?

Department of Justice lawyers said Petrova’s only possible relief is to go before an immigration judge under the executive branch, not a federal judge like Reiss who operates in the judiciary branch. They were insistent about this.

Reiss and DOJ lawyers discussed the circumstances of Petrova’s detention. Petrova was detained when she got to baggage claim and agreed to go back to France from which she had arrived, but CBP said they could send her to Russia. Petrova said she feared returning to Russia. Then she was detained.

DOJ said Petrova has to exhaust remedies by first going through removal proceedings before an immigration judge.

Reiss asked whether the goal is to remove her to Russia. DOJ said that is for the immigration judge to decide. Reiss asked whether DOJ will ask in the immigration hearing to send Petrova to Russia. DOJ said yes, that is what they will pursue.

Reiss explored what this meant. Hypothetically, if a CBP officer lacks authority to do what he did [revoking Petrova’s visa and detaining her instead of confiscating the sample and levying a fine], DOJ was saying that issue must be taken up in immigration court. But the habeas corpus petition is only about detention, nothing else, so what is the intersection? Is there no window of time between detention and when removal proceedings began?

DOJ said now that new proceedings have begun in Louisiana, Petrova can file a habeas corpus petition there. DOJ said there is no live issue for federal court in Vermont to address.

Reiss asked what is the standard for Customs officials to decide whether something is a “biological hazard,” and if her court did not examine that question, who would do so and when?

DOJ said an immigration judge would not make that determination regarding whether Petrova’s sample was a biological hazard. Reiss said she thinks it is relevant because it raises a question of what Customs officers can do when a person does not declare an item at the border. Will they always have their visa revoked? Would they not usually just be fined?

DOJ said a material misrepresentation to a Customs official could lead to revocation of a visa. Reiss said she did not see that as a basis basis for revoking Petrova’s visa and detaining her. DOJ Said those are issues for the immigration judge to decide.

Reiss then turned to Petrova’s counsel Romanovsky. He began by saying the government reason for detaining Petrova has changed at least three times. One thing remained constant: Petrova was found inadmissible to the USA because of undeclared frog embryos. Under statute, that does not make her inadmissible to the USA.

Reiss asked, didn’t Romanovsky ask for Petrova to be put in removal proceedings?

Romanovsky replied yes, because he understood a removal order had been issued against her, but now he has learned there is no such removal order. Petrova is being held under 1225(B)(1). This is first time the government has said she is being removed under (B)(2) but that is not possible. The government has said she is being held for consideration of her asylum claim, which is the language of (B)(1). The government cannot switch to B(2) when they feel like it.

Reiss said she understood that will not happen, there will not be consideration of an asylum claim. Romanovsky replied that it will. She is being held for consideration of her asylum claim.

Reiss responded, so you contend she has no intention to immigrate to the USA?

Romanovsky said that is true.

Reiss asked, so why request asylum?

Romanovsky said Petrova was forced to apply because the government  wanted to deport her to Russia. It does not mean she has intention to immigrate here. It means she has an intention to have a life at all.

In response to other questions from Reiss, Romanovsky said there is no misrepresentation allegation as to grounds for admissibility, and there is a reason for that. Even if we assume Petrova lied to CBP, which she denies, it is not a misrepresentation to gain an immigration benefit. That’s why it is inapplicable, and it was never alleged.

All the scientists Romanovsky consulted said the substances Petrova carried are not dangerous. Reiss asked what is the definition of “biological”? Romanovsky said he did not have the precise definition in front of him but can get it for the court. Reiss said this is more like a hypothetical scorpion encased in plastic.

Romanovsky turned to the question of what authority Customs officers may have to cancel or revoke a visa. A regulation sets out circumstances in which they can do so. One says if the person has been ordered removed, which is not applicable in this instance. Another says if an immigrant withdraws their application for admission and is granted permission to withdraw…

Reiss responded that she assumed the government does not argue that Petrova was granted permission to withdraw because if she had been, then she would be in France now. Romanovsky said that was correct.

Reiss pointed out the habeas petition did not include a prayer for release. Romanovsky confirmed that was true, and that was because he understood a removal order had been issued against Petrova, but that turned out not to be true.

Reiss said she will probably set a bail hearing, but one of her remaining questions will be whether her court has authority to order release now that Petrova is in removal proceedings.

DOJ lawyers brought up more case citations to add to some they mentioned earlier.

Reiss asked for clarification. She asked whether DOJ were arguing that Petrova made material misrepresentations at the border. DOJ said no, that was not among the charges.

Reiss said Petrova’s visa was not revoked with anything to do with a removal proceeding. It was a customs violation, but when Reiss looks at the regulations, she does not see any authority for revoking the visa.

DOJ fell back on saying there are jurisdictional questions, and these are things for the immigration judge to consider.

Reiss pointed out Romanovsky said the proceedings could be years, and Petrova has brought a habeas claim that her detention is unlawful. DOJ said Petrova can bring habeas claims in Louisiana. Reiss countered that Petrova is in Louisiana only because the government moved her there.

DOJ reiterated their position that Petrova’s habeas claims are moot in Vermont, and the correct venue if she wants to bring a habeas petition is Louisiana. DOJ finished by asking Reiss to dismiss the habeas petition as moot. Reiss asked Romanovsky whether he agreed that counts 2 and 3 in the petition are moot. He said yes, they were only talking about count 1 now. Reiss took that under advisement.

Reiss said she thinks the facts have changed enough that the current habeas corpus petition does not accurately reflect Petrova claims and wants. Reiss left it to Romanovsky to decide whether to amend it. She scheduled a bail hearing for Wednesday 28 May 2025 at 10:00.

Click here for live-posting of the hearing by journalist Anna Bower.