The opinion
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
MOHAMAD AB-RAHIM,
Petitioner,
v. DECISION AND ORDER
6:26-CV-06005-EAW
TAMMY MARICH, in her official
capacity as Field Office Director, Buffalo
Field Office, U.S. Immigration and
Customs Enforcement, et al.,
Respondents.
Petitioner Mohamad Ab-Rahim (“Petitioner”) is a civil immigration detainee
alleging that he is being detained in United States Immigration and Customs Enforcement
custody pending removal proceedings in violation of the United States Constitution. (Dkt.
1). He seeks relief under 28 U.S.C. § 2241. (Id). Petitioner is being held at the Buffalo
Federal Detention Facility in Batavia, New York. (Id. at ¶ 5).
Petitioner is 33 years old, and a native of Afghanistan who entered the United States
at the southern border without inspection on or about January 23, 2023. (Id. at ¶¶ 8, 15).
Petitioner was encountered within 100 miles of the border and 14 days of entry (Dkt. 8 at
2), placed into full removal proceedings after demonstrating a credible fear of persecution
or torture, and was released with a Notice to Appear in Immigration Court on April 24,
2023 (Dkt. 1 at ¶¶ 16-18). On January 19, 2024, Petitioner submitted his application for
asylum and withholding of removal to the Executive Office for Immigration Review, and
shortly thereafter a hearing was scheduled for February 2, 2026. (Id. at ¶¶ 19-20). The
government contends that Petitioner is an arriving alien subject to expedited removal under
8 U.S.C. § 1225(b)(1), who was released on a one-year parole on March 23, 2023. (Dkt.
4). But the Notice to Appear attached to the petition does not designate Petitioner as an
arriving alien, and instead states that Petitioner is “an alien present in the United States
who has not been admitted or paroled.” (Dkt. 1-2 at 1).
On December 2, 2025, Petitioner was taken into custody outside his home and he
remains detains without bond or any bond hearing. (Dkt. 1 at ¶¶ 21-23). Petitioner has no
criminal history (id. at ¶ 24), and instead has been residing in the United States for over
three years with parole that expired almost two years ago, and with a pending asylum
application.
Petitioner filed the present petition on January 2, 2026. (Dkt. 1). Within days, the
Court issued a text order requiring the government to explain how this case could be
distinguished from the undersigned’s prior decisions finding that noncitizens who are
present in the United States without having been admitted or paroled, are subject to
detention under 8 U.S.C. § 1226, and not § 1225(b)(2). (Dkt. 2). The government
responded that this case did not arise under the Hurtado framework1 and instead Petitioner
1 As the undersigned explained in Quituizaca v. Bondi, No. 6:25-CV-6527-EAW,
2025 WL 3264440, at *3 (W.D.N.Y. Nov. 24, 2025), a policy directive issued under the
current executive administration led to a decision from the Board of Immigration Appeals
on September 5, 2025, in Matter of Jonathan Javier Yajure Hurtado, 29 L. & N. Dec. 216
(BIA), 2025 WL 2674169 (Sept. 5, 2025), which held that immigration judges lack
authority to hear bond requests of noncitizens present in the United States without
was an arriving alien subject to expedited removal under 8 U.S.C. § 1225(b)(1). (Dkt. 4).
Petitioner filed a reply, claiming incorrectly that a case decided by another district judge in
this District was “binding” on the undersigned. (Dkt. 6).
The government responded on January 8, 2026, contending among other things that
the facts in Dep’t of Homeland Sec. v. Thuraissigiam, 591 U.S. 103 (2020) “essentially
mirror those here” (Dkt. 8 at 2),2 but that also is not correct. Thuraissigiam involved a
habeas petition commenced by a noncitizen challenging the determination that he did not
possess a credible fear. Id. at 114-15. The Supreme Court reversed the Ninth Circuit’s
determination that 8 U.S.C. § 1252(e)(2) (limiting the scope of habeas corpus proceedings
for determinations made under 8 U.S.C. § 1225(b)(1)) violated the Suspension Clause. Id.
at 115-16. The Supreme Court also disagreed with the argument that the petitioner, who
had been stopped after making it 25 yards into the country before he was apprehended, had
due process rights outside the statutory rights provided under the law. Id. at 138-140. In
so holding, the Supreme Court reaffirmed its holding in Shaughnessy v. United States ex
rel. Mezei, that “aliens who have once passed through our gates, even illegally, may be
expelled only after proceedings conforming to traditional standards of fairness
encompassed in due process of law. . . . But an alien on the threshold of initial entry stands
inspection and admission because those individuals were classified under 8 U.S.C.
§ 1225(b)(2) and thus subject to mandatory detention. Like almost all courts to have
considered the issue, the undersigned has rejected Hurtado.
2 Petitioner filed a response to this submission from the government on January 9,
2026, but that response failed to address the government’s argument regarding
Thuraissigiam. (See Dkt. 9).
on a different footing: ‘Whatever the procedure authorized by Congress is, it is due process
as far as an alien denied entry is concerned.’” 345 U.S. 206, 208 (1953). As reiterated by
the Supreme Court in Thuraissigiam, “aliens who arrive at ports of entry—even those
paroled elsewhere in the country for years pending removal—are ‘treated’ for due process
purposes ‘as if stopped at the border.’” 591 U.S. at 139.
But in Thuraissigiam, the petitioner was never released from custody into the United
States, on parole or otherwise. And as the undersigned recently concluded “where a
petitioner’s re-arrest was not a continuation of the initial border encounter, but an
independent decision to detain the individual after the expiration of his parole, the detention
pursuant to that re-arrest arises under [8 U.S.C.] § 1226.” Ivonin v. Rhoney, No. 6:25-CV-
06673 EAW, 2026 WL 199283, at *4 (W.D.N.Y. Jan. 26, 2026).
Because of the undersigned’s decision in Ivonin, the undersigned issued text orders
allowing further briefing. (Dkt. 10; Dkt. 12; Dkt. 14). The government filed a letter in
response on January 28, 2026,3 attempting to distinguish Ivonin from this case because
Petitioner surreptitiously unlawfully entered the country, whereas the petitioner in Ivonin
followed the lawful process of appearing at a port of entry and obtaining parole. (Dkt. 11).
But the government has not cited any legal authority in support of its position, and it does
not appear supported by the law. See, e.g., Thuraissigiam, 591 U.S. at 108 (“An alien who
arrives at a ‘port of entry,’ i.e., a place where an alien may lawfully enter, must apply for
admission. An alien like respondent who is caught trying to enter at some other spot is
3 Petitioner filed a reply on January 28, 2026. (Dkt. 13).
treated the same way.” (citing 8 U.S.C. § 1225(a)(1), (3) (emphasis added)). In other
words, regardless of how a noncitizen presents at or near the border and requests asylum,
the statutory framework is the same once they pass a credible fear interview and are granted
parole.
Accordingly, for the same reasons the Court has previously articulated in Ivonin, the
petition is granted to the extent that Petitioner seeks a bond hearing, and a bond hearing
shall be conducted in accordance with the following terms:
1. Petitioner shall be granted a bond hearing before an immigration judge (“IJ”)
on or before February 10, 2026. If Petitioner requests a continuance that results in a bond
hearing date outside this deadline, such a continuance will comply with this Order as long
as the new date falls within a reasonable time period.
2. After considering the balancing test set forth in Mathews v. Eldridge, 424
U.S. 319 (1976), the Court concludes that the government shall have the burden to
demonstrate dangerousness or flight risk by clear and convincing evidence. See Lieogo v.
Freden, No. 6:25-CV-06615 EAW, 2025 WL 3290694, at *4-6 (W.D.N.Y. Nov. 26, 2025).
In deciding whether the government has met its burden of proof, the IJ must consider
whether less-restrictive alternatives to detention can reasonably address the government’s
interest in Petitioner’s continued detention.
3. If the IJ finds that the government has not met its burden, then in setting any
bond the IJ must consider Petitioner’s ability to pay and alternative conditions of release.
4. Thus, in order to continue Petitioner’s detention after any bond hearing, the
IJ must find by clear and convincing evidence and make findings that no condition or
combination of conditions of release can reasonably ensure Petitioner’s appearance and the
safety of the community—that is, even with conditions, Petitioner presents an identified
and articulable risk of flight or a threat to another person or the community.
5. Respondents are directed to file a status update with the Court on or before
February 12, 2026.
SO ORDERED. (1 oJ
BLIZABEYH 4 WOKEORD
Chief Judge
United States District Court
Dated: February 3, 2026
Rochester, New York
-6-