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UNITED STATES DISTRICT COURT SE FILED Coy

WESTERN DISTRICT OF NEW YORK S Px

ee MAR 1 9 2096

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NELSON OMAR RIVERA CASTILLO, So7= W. MOELLER, CL owt

RN DISTRICLS

Petitioner,

v. 25-CV-1065 (JLS)

PHILIP RHONEY, in his official

capacity as Acting Field Office Director

of the Buffalo Field Office of U.S.

Immigration and Customs Enforcement;

JAMES BAUSCH, in his official

capacity as Acting Deputy Field Office

Director, Buffalo Federal Detention

Facility,

Respondents.!

DECISION AND ORDER

This case presents the question whether an alien who came to the United

States illegally, remains in the country illegally, and is thereby “seeking admission”

under 8 U.S.C. § 1225, has a protected liberty interest to remain free from detention

while contesting his removal—all while he retains the keys to his liberty if he were

to agree to that removal.

In particular, Petitioner challenges his detention pending removal

proceedings on two grounds. First, he argues that his detention is not pursuant to

Section 1225, which governs those “seeking admission,” and allows detention

1 Philip Rhoney and James Bausch have assumed their respective roles in the

caption and are substituted automatically in place of their predecessors pursuant to

Federal Rule of Civil Procedure 25(d).

without a bond hearing. This Court decided that statutory issue in Candido, and

that result applies here too: Section 1225 applies and provides for no bond hearing.

Next, he argues that his Section 1225 detention has become prolonged—at

two years—such that the Fifth Amendment’s due process clause now requires a

bond hearing. But a petitioner like this one, who is “seeking admission” under

Section 1225, does not have a due process right to a bond hearing for several

independent reasons, discussed below. The Petition is, therefore, dismissed.

BACKGROUND

Petitioner Nelson Omar Rivera Castillo is a citizen and national of Honduras.

See Dkt. 4-2 at 1-2.2, On April 5, 2023, he was convicted of Attempted Assault in the

Second Degree in violation of N.Y. Penal Law §§ 110 and 120.05, a felony. See id. at

2. He was sentenced to one-to-three years of imprisonment and taken into New

York State Department of Corrections and Community Supervision (““DOCCS”)

custody. See id.

On or around May 23, 2023, U.S. Immigration and Customs Enforcement

(“ICE”) officials encountered Petitioner while he was detained at Ulster

Correctional Facility serving his criminal sentence. See id. at 2. ICE determined

that Petitioner entered the United States at an unknown date and time, without

being admitted or paroled by a U.S. Immigration Officer. See id. There is no

evidence that Petitioner has any lawful status in the United States. In fact, he

2 Page numbers refer to the CM/ECF generated numbering in the header of each

page.

provided a sworn statement to an Immigration Officer stating that he entered the

United States illegally. See id. As a result of the encounter with Petitioner, the

Department of Homeland Security (“DHS”) issued a Notice to Appear charging

Petitioner as removable and issued a warrant for his arrest. See id. at 1-3. DHS

took custody of Petitioner from DOCCS on March 6, 2024. See Dkt. 15.

On July 16, 2024, an Immigration Judge issued a decision denying a request

by Petitioner for protection under the regulations implementing the Convention

against Torture. See Dkt. 1 at 14. Petitioner appealed to the Board of Immigration

Appeals (“BIA”). See id. at 14-16. On January 10, 2025, the BIA remanded

Petitioner’s case to the Executive Office for Immigration Review (“EOIR”) for

further development of the factual record and additional analysis. See id. On June

4, 2025, the Immigration Judge again denied Petitioner’s applications for relief and

ordered Petitioner removed. See Dkt. 4-3 at 1-2. Petitioner then appealed that

decision to BIA on July 7, 2025, and his appeal remains pending. See Dkt. 4-3 at 1-

2. Petitioner has been detained in DHS custody for two years during this process.

On October 20, 2025, Petitioner filed a petition with this Court seeking a writ

of habeas corpus pursuant to 28 U.S.C. § 2241. Dkt. 1. Petitioner alleges that,

“DHS has not yet conducted a bond hearing to determine whether [his] continued

detention is justified.” Id. 8. He also argues that his “immigration detention is

unreasonably prolonged because [he has] been detained for more than six months

without a bond hearing... Id. { 9. Petitioner asserts one cause of action alleging

that his “ongoing detention” violates the Fifth Amendment to the United States

Constitution. See id. at 11. He asks this Court to direct Respondents to release him

from “further unlawful detention” and enjoin Respondents from “unlawfully

detaining [him] any further” or, in the alternative, order a bond hearing. Id. at 12.

Respondents moved to dismiss the Petition, arguing that “there is no

indication that [Petitioner] has attempted to exhaust administrative remedies” and

that, because Petitioner “is currently detained under 8 U.S.C. § 1225(b)(2)(A)” he is

“ineligible for release under 8 U.S.C. § 1226(a).” Dkt. 4-4 at 2. Petitioner replied.

Dkt. 6. The parties then filed supplemental briefing regarding Petitioner’s

prolonged-detention argument. Dkt. 16, 17.

DISCUSSION

I. JURISDICTION

Habeas corpus review is available to persons “in custody in violation of the

Constitution or laws or treaties of the United States.” See 28 U.S.C. § 2241(c)(3).

Jurisdiction over substantive challenges to final deportation, exclusion, and removal

orders resides with the circuit courts; district courts lack jurisdiction over the

merits of such orders. See Gittens v. Menifee, 428 F.3d 382, 384 (2d Cir. 2005)

(holding that the REAL ID Act “eliminates habeas jurisdiction over final orders of

deportation, exclusion, and removal, providing instead for petitions of review ...,

which circuit courts alone can consider”). But district courts review claims that pre-

removal detention is unconstitutional. See Demore v. Kim, 538 U.S. 510, 516-17

(2003).

In this case, Petitioner claims that his detention is unconstitutional based on

its duration. Specifically, he claims that his now two-year detention without an

individualized bond hearing, in which the Government bears the burden of proof,

violates his procedural due process rights under the Fifth Amendment. See, e.g.,

Dkt. 1 at 12.

Respondents argue that 8 U.S.C. §§ 1252(b)(9) and (g) strip this Court of

jurisdiction. See Dkt. 4-4 at 3-8. But they concede that “this Court has rejected this

argument in the past’—and raise it here only “to preserve any rights on appeal.”

See id. at 3n.2. Indeed, in Candido, this Court concluded that, “because [the

petitioner] does not challenge the Attorney General’s decision or action ‘to

commence proceedings, adjudicate cases, or execute removal orders,’ Section 1252(g)

does not strip this Court of jurisdiction to address his petition.” No. 25-CV-867

(JLS), 2025 WL 3484932, at *1 (W.D.N-Y. Dec. 4, 2025) (citing 8 U.S.C. § 1252(g);

Velasco Lopez v. Decker, 978 F.3d 842, 850 (2d Cir. 2020)).

Further, the “very text of § 1252(b) sets out requirements only ‘[w]ith respect

to review of an order of removal under subsection (a)(1).” Ozturk v. Hyde, 136 F.4th

382, 399 (2d Cir. 2025) (quoting 8 U.S.C. § 1252(b)). And “[n]o such order of

removal is at issue here.” Id. In “any event, the Supreme Court has rejected the

proposed approach, holding that Ԥ 1252(b)(9) does not present a jurisdictional bar

where those bringing suit are not asking for review of an order of removal, the

decision to seek removal, or the process by which removability will be determined.”

Id. (quoting Dep’t of Homeland Sec. v. Regents of the Univ. of California, 140 S. Ct.

1891, 1907 (2020)). This Court, therefore, confirms that it has jurisdiction over

Petitioner’s claim.?

II. STATUTORY BACKGROUND

In 1952, Congress enacted the Immigration and Nationality Act (“INA”),

which “established a comprehensive federal statutory scheme for regulation of

immigration and naturalization and set the terms and conditions of admission to

the country and the subsequent treatment of aliens lawfully in the country.”

Chamber of Com. of U.S. v. Whiting, 563 U.S. 582, 587 (2011) (internal citation and

quotation marks omitted). The INA has been amended several times—including in

1996 when Congress, concerned largely with the “number of aliens in removal

proceedings who did not appear for their hearings,” passed the Illegal Immigration

Reform and Immigrant Responsibility Act (“ITRIRA”). Velasco Lopez, 978 F.3d at

848 (citing Omnibus Consolidated Appropriations Act, Pub. L. No. 104-208, 110

Stat. 3009 (1996)). Through the INA, as amended, “Congress has established a

substantial, comprehensive, and intricate remedial scheme in the context of

immigration.” Arar v. Ashcroft, 585 F.3d 559, 572 (2d Cir. 2009).

The statute “authorizes the Government to detain certain aliens seeking

admission into the country under §§ 1225(b)(1) and (b)(2).” Jennings v. Rodriguez,

3 Respondents also argue that the “Court should deny the petition as there is no

indication that [Petitioner] has attempted to exhaust administrative remedies.” See

Dkt. 4-4 at 2. Exhaustion, however, is not required here because such efforts would

be futile.

583 U.S. 281, 289 (2018).4 It also “authorizes the Government to detain certain

aliens already in the country pending the outcome of removal proceedings under

§§ 1226(a) and (c).” Id.

The “statutory scheme governing the detention of aliens in removal

proceedings is not static; rather, the Attorney General’s authority over an alien’s

detention shifts as the alien moves through different phases of administrative and

judicial review.” Casas-Castrillon v. Dep’t of Homeland Sec., 535 F.3d 942, 945 (9th

Cir. 2008). Accordingly, when “an alien has a final removal order that is not subject

to a judicial stay, detention authority shifts to 8 U.S.C. § 1231(a).” Rodriguez Diaz

v. Garland, 53 F.4th 1189, 1197 (9th Cir. 2022) (citing Jennings, 583 U.S. at 298).5

Ill. SECTION 1225 IS THE STATUTORY BASIS FOR PETITIONER’S

DETENTION

At the outset, Petitioner argues that his detention is governed by Section

1226(c). See Dkt. 16 at 4-5. According to Petitioner, the “warrant pursuant to

which DHS arrested Petitioner only authorizes detention pursuant to INA § 236

4 Section 1225 will be discussed in more detail below.

5 The “post-removal-period detention statute applies to certain categories of aliens

who have been ordered removed, namely, inadmissible aliens, criminal aliens,

aliens who have violated their nonimmigrant status conditions, and aliens

removable for certain national security or foreign relations reasons, as well as any

alien ‘who has been determined by the Attorney General to be a risk to the

community or unlikely to comply with the order of removal.” Zadvydas v. Davis,

533 U.S. 678, 688 (2001) (quoting 8 U.S.C. § 1231(a)(6) (1994 ed. Supp. V)). It “says

that an alien who falls into one of these categories ‘may be detained beyond the

removal period and, if released, shall be subject to [certain] terms of supervision.”

Id. at 689.

(i.e. 8 U.S.C. § 1226).” Id. at 4. He explains that Section 1226(a) “gives the

Attorney General the authority to issue warrants to arrest and detain noncitizens,”

while Section 1226(c) “directs the Attorney General to ‘take into custody’ non-

citizens that have committed certain crimes while present in the United States

pending removal proceedings.” Jd. He claims, therefore, that “he is being detained

pursuant to [Section] 1226(c)(1)(C).” Id. at 5.

Respondents contend that Petitioner’s detention is governed by Section

1225(b). See Dkt. 4-4 at 8. They explain that aliens—like Petitioner—who “have

not been admitted or inspected and paroled are defined as applicants for admission

under [Section] 1225(a)(1).” See id. (citing Candido, No. 25-CV-867 (JLS), 2025 WL

3484932, at *1). Petitioner, “as an applicant for admission (specifically, an alien

present without admission),” was “placed directly into removal proceedings under 8

U.S.C. § 1229a.” Id. Accordingly, in Respondents’ view, he is “subject to detention

pursuant to 8 U.S.C. § 1225(b)(2)(A) and ineligible for bond.” Id.

Petitioner is indeed detained under Section 1225, which provides for

detention, without a bond hearing, during removal proceedings. As this Court

determined in December 2025 in Candido, “Section 1225(b)(2)(A) provides for

detention pending removal proceedings: ‘[I]n the case of an alien who is an

applicant for admission, if the examining immigration officer determines that an

alien seeking admission is not clearly and beyond a doubt entitled to be admitted,

the alien shall be detained for a proceeding under [S]ection 1229a of this title.”

Candido, No. 25-CV-867 (JLS), 2025 WL 3484932, at *1 (quoting 8 U.S.C. §

1225(b)(2)(A)). “Applicant for admission” includes those “who [have] not been

admitted or who arrive[] in the United States (whether or not at a designated port

of arrival)....” 8 U.S.C. § 1225(a)(1) (citation modified). Again, as this Court

explained in Candido, a fair reading of the statute, in context, requires detention of

aliens, such as Petitioner, who have not been admitted.

In particular, as this Court reasoned in Candido, “seeking admission” is not a

limitation or a separate classification. Rather, as discussed below, the terms are

synonyms—a conclusion based on a fair reading of the statute and the ordinary

meaning of its terms.

First, the alteration in terms is repeated in similar fashion, such that “[al]ll

aliens ... who are applicants for admission or otherwise seeking admission or

readmission to or transit through the United States shall be inspected by

immigration officers.” 8 U.S.C. § 1225(a)(8) (citation modified).

Moreover, the “term ‘application for admission’ has reference to the

application for admission into the United States and not to the application for the

issuance of an immigrant or nonimmigrant visa.” 8 U.S.C. § 1101(a)(4) (definitions

that apply to Chapter 12, which includes Section 1225). Indeed, the “terms

‘admission’ and ‘admitted’ mean, with respect to an alien,® the lawful entry of the

alien into the United States after inspection and authorization by an immigration

6 “Alien” means “any person not a citizen or national of the United States.” 8 U.S.C.

§ 1101(a)(4).

officer.” 8 U.S.C. § 1101(a)(13)(A) (definitions that apply to Chapter 12, which

includes Section 1225).7

The statutory scheme thus reveals that the terms “applicant for admission”

and “seeking admission” are synonymous.’ As such, one who enters the country

unlawfully is an “applicant for admission” subject to detention without a bond

hearing—and is not someone other than that under the statute who might be

entitled to Section 1226 treatment. In other words, detention under Section

1225(b)(2)(A) is not reserved for aliens “seeking admission,” as if that were a

different category from “applicants for admission.”

Second, “applicant” and “seeker” are, indeed, accepted synonyms. See

ROGET’S II: THE NEW THESAURUS 45 (8rd ed. 1995); Synonyms of applicant,

MERRIAM-WEBSTER THESAURUS, https://www.merriam-

webster.com/thesaurus/applicant (last visited March 19, 2026).

7 Similarly, an “alien lawfully admitted for permanent residence in the United

States shall not be regarded as seeking an admission into the United States for

purposes of the immigration laws unless the alien . . . is attempting to enter at a

time or place other than as designated by immigration officers or has not been

admitted to the United States after inspection and authorization by an immigration

officer.” 8 U.S.C. § 1101(a)(13)(C) (vi).

8 In a different context, the Fourth Circuit recognized the interchangeable nature of

these terms. See Jimenez-Rodriguez v. Garland, 996 F.3d 190, 194 n.2 (4th Cir.

2021) (“As for the limitation of these waivers to those ‘seeking admission,’ the INA

states that ‘an alien present in the United States who has not been admitted shall

be deemed for purposes of this chapter an applicant for admission’.... Because

Jimenez-Rodriguez was never lawfully admitted, he qualifies as someone ‘seeking

admission’... .”) (citation modified)).

10

Moreover, “seek” is defined as “to ask for” or “request.” Definition of seek,

MERRIAM-WEBSTER DICTIONARY, https://www.merriam-webster.com/dictionary/seek

(last visited Dec. 3, 2025). And “applicant” means “[s]omeone who requests

something.” Applicant, BLACK’S LAW DICTIONARY (11th ed. 2019).

And third, there is no “material variation” in meaning between these two

terms; as such, there is no reason to apply interpretive canons. See ANTONIN SCALIA

& BRYAN A. GARNER, READING LAW: THE INTERPRETATION OF LEGAL TEXTS 170 (2012)

(‘A word or phrase is presumed to bear the same meaning throughout a text; a

material variation in terms suggests a variation in meaning.”).? Rather, “[w]Jords

are to be understood in their ordinary, everyday meanings—unless the context

indicates that they bear a technical sense.” Id. at 69 (Canon 6: Ordinary-Meaning

Canon). And the “words of a governing text are of paramount concern, and what

they convey, in their context, is what the text means.” Jd. at 56 (Canon 2:

Supremacy-of-Text Principle).

In sum, the statutory structure, the fact that the terms are synonyms, the

immaterial alteration, and ordinary meaning all point to the conclusion that

Section 1225(b)(2)(A) speaks of only one type of alien—one who has not been

admitted or who “arrives”—and does not create a subset only as to which the

9 “(M]ore than most other canons,” this canon of the presumption of consistent

usage “assumes a perfection of drafting that, as an empirical matter, is not often

achieved.” Id. “[D]rafters .. . often (out of a misplaced pursuit of stylistic elegance)

use different words to denote the same concept.” Id.

11

statute actually applies. See this Court’s prior decision in Candido v. Bondi, No.

25-CV-867 (JLS), 2025 WL 34849382, at *8 (W.D.N.Y. Dec. 4, 2025).

Here, Petitioner is an “applicant for admission” within the meaning of

Section 1225(a)(1). He entered the United States at an unknown location on an

unknown date. See Dkt. 4-2 at 2-8. He has never been admitted. See id. And there

is no indication that he has any lawful status in the United States or a claim to U.S.

citizenship. See id.

Section 1225(b)(2)(A) does not require a bond hearing and, instead, permits

Respondents to proceed without one here.!° In fact, because Petitioner has not

been “admitted” into the United States, his argument that he is not also “seeking

admission” creates his own extra-statutory status. Under such status, after some

undetermined period of time of merely residing unlawfully in the United States, he

no longer is “seeking admission” and, thereby, converts himself to bond-eligible

under Section 1226,1! by nothing more than remaining in the country unlawfully.

10 In contrast, the Government reserves Section 1226 to aliens who have been

admitted.

11 Under Section 1226(a)(2)(A), upon “a warrant issued by the Attorney General, an

alien may be arrested and detained pending a decision on whether the alien is to be

removed from the United States” but the Attorney General “may release the alien”

on “bond of at least $1,500 ....” Section “1226(c) directs that the government ‘shall

detain’ noncitizens who are charged with removability based on a prior conviction

on specified criminal grounds or on allegations of involvement with terrorism. It

makes no explicit provision for an initial or other bond hearing during the period of

detention and places no limit on the duration of detention under its authority.”

Black v. Decker, 108 F.4th 133, 137 (2d Cir. 2024). But, under Black, such a bond

hearing is possible.

12

Relevant here, too, is the Supreme Court’s observation that, with “a few

exceptions ..., the Attorney General may ‘for urgent humanitarian reasons or

significant public benefit’ temporarily parole aliens detained under [Sections]

1225(b)(1) and (b)(2),” and that the “express exception to detention implies that

there are no other circumstances under which aliens detained under [Section]

1225(b) may be released.” Jennings, 583 U.S. at 300 (2018) (quoting 8 U.S.C.

§ 1182(d)(5)(A), and citing ANTONIN SCALIA & BRYAN A. GARNER, READING LAW: THE

INTERPRETATION OF LEGAL TEXTS 107 (2012)) (citation modified).!?

For all of these reasons, the Court remains satisfied that the statute does not

require a bond hearing here. This result is also consistent with the primacy of the

political branches in this area of law.!3 A contrary result ignores these substantive

12 The particular canon cited from Scalia and Garner’s text was the “Negative—

Implication Canon,” under which the “expression of one thing implies the exclusion

of others (expressio unius est exclusio alterius).” Id.

13 The Supreme Court’s holding in Demore aligns with its prior recognition that “the

responsibility for regulating the relationship between the United States and [its]

alien visitors [is] committed to the political branches of the Federal Government.”

Mathews v. Diaz, 426 U.S. 67, 81 (1976). Indeed, “[o]ver no conceivable subject is

the legislative power of Congress more complete.” Reno v. Flores, 507 U.S. 292, 305

(1993) (citation modified). Because decisions regarding immigration “may implicate

[the United States’] relations with foreign powers, and [because] a wide variety of

classifications must be defined in the light of changing political and economic

circumstances, such decisions are frequently . .. more appropriate [for] either the

Legislature or the Executive than [for] the Judiciary.” Diaz, 426 U.S. at 81. See

also United States v. Valenzuela-Bernal, 458 U.S. 858, 864 (1982) (“The power to

regulate immigration—an attribute of sovereignty essential to the preservation of

any nation—has been entrusted by the Constitution to the political branches of the

Federal Government.”).

That Court, therefore, has “underscore[d] the limited scope of judicial inquiry” into

issues related to immigration legislation. Fiallo v. Bell, 480 U.S. 787, 792 (1977).

13

principles, and also mandates perfection in legislative drafting, which courts also

must not demand. See, e.g., Torres v. Lynch, 578 U.S. 452, 472 (2016)

(acknowledging “little doubt that Congress could have drafted [a different provision

of the INA] with more precision than it did,” that “the same could be said of many

(even most) statutes,” and that the Court has “long been mindful of that fact when

interpreting laws”).'4

The power over matters related to “aliens is of a political character and therefore

subject only to narrow judicial review.” Id. (citation modified). In particular:

Any policy toward aliens is vitally and intricately interwoven with

contemporaneous policies in regard to the conduct of foreign relations,

the war power, and the maintenance of a republican form of

government. Such matters are so exclusively entrusted to the

political branches of government as to be largely immune from

judicial inquiry or interference.

Diaz, 426 U.S. at 81 n.17 (citation modified). Courts must employ “a narrow

standard of review of decisions made by the Congress or the President” regarding

immigration. See id. at 81-82.

14 Instead of “expecting (let alone demanding) perfection in drafting,” the Supreme

Court has “routinely construed statutes to have a particular meaning even as [it]

acknowledged that Congress could have expressed itself more clearly.” Id. The

question “is not: Could Congress have indicated (or even did Congress elsewhere

indicate) in more crystalline fashion” that the statutory provision has a particular

meaning? Id. at 472-73. Rather, the question is “simply: Is that the right and fair

reading of the statute before us?” Id.

14

As discussed in Candido, this Court has considered decisions from other

courts on this issue and is persuaded by some!5 but not persuaded by others.16

Again, the fact that more district courts nevertheless have decided this statutory

issue differently from this Court is neither binding nor persuasive.

For all of these reasons, Petitioner is an “applicant for admission” subject to

mandatory detention under Section 1225(a)(1) and (b)(2)(A), and is ineligible for

bond under the statute.

IV. PETITIONER’S DETENTION COMPORTS WITH THE FIFTH

AMENDMENT

Petitioner also challenges the constitutionality of his detention under the

Fifth Amendment’s Due Process Clause, arguing that it has become prolonged.

Petitioner’s argument fails.

15 See Buenrostro-Mendez v. Bondi, 166 F.4th 494 (5th Cir. 2026) (after “reviewing

carefully the relevant provisions and structure of the Immigration and

Naturalization Act, the statutory history, and Congressional intent, [the court]

conclude[d] that the government’s position is correct”); see, e.g., Altamirano Ramos

v. Lyons, No. 2:25-cv-9785-SVW-AJR, 2025 WL 3199872 (C.D. Cal. Nov. 12, 2025);

Vargas Lopez v. Trump, No. 8:25CV526, 2025 WL 2780351 (D. Neb. Sept. 30, 2025);

Chavez v. Noem, No. 3:25-cv-2525-CAB-SBC, 2025 WL 2730228 (S.D. Cal. Sept. 24,

2025); Sandoval v. Acuna, No. 6:25-cv-1467, 2025 WL 3048926 (W.D. La. Oct. 31,

2025); Pena v. Hyde, Civil Action No. 25-11983-NMG, 2025 WL 21089138 (D. Mass.

July 28, 2025).

16 See, e.g., Aluarez Ortiz v. Freden, No. 25-CV-960-LJV, 2025 WL 3085032

(W.D.N.Y. Nov. 4, 2025); J.U. v. Maldonado, No. 25-CV-4836 (OEM), 2025 WL

2772765 (E.D.N.Y. Sept. 29, 2025); Savane v. Francis, No. 1:25-cv-6666-GHW, 2025

WL 2774452 (S.D.N.Y. Sept. 28, 2025); Lopez Benitez v. Francis, No. 25 Civ. 5937

(DEH), 2025 WL 2371588 (S.D.N.Y. Aug. 13, 2025).

15

The Fifth Amendment provides that no person shall be (1) “deprived of,”

(2) “liberty,” (3) “without due process of law.” U.S. CONST. amend V.

It is “well established that the Fifth Amendment entitles aliens to due

process of law in deportation proceedings.” Demore, 538 U.S. at 528 (quoting Reno,

507 U.S. at 306) (internal quotation marks omitted). But Petitioner is not

complaining about the conduct of his deportation proceedings. Moreover, the

Supreme Court has also recognized that, “detention during deportation proceedings

[is] a constitutionally valid aspect of the deportation process.” Id. Indeed,

“deportation proceedings ‘would be in vain if those accused could not be held in

custody pending the inquiry into their true character.” Id. (quoting Wong Wing v.

United States, 163 U.S. 228, 235 (1896)). See also Zaduydas, 533 U.S. at 711

(Kennedy, J., dissenting) (“Congress’ power to detain aliens in connection with

removal or exclusion . . . is part of the Legislature’s considerable authority over

immigration matters.”).

Equally clear are the “constraints on governmental decisions [that] deprive

individuals of ‘liberty’ or ‘property’ interests within the meaning of the Due Process

Clause of the Fifth... Amendment.” Mathews v. Eldridge, 424 U.S. 319, 332

(1976). To determine the safeguards necessary to ensure that a petitioner receives

“the opportunity to be heard at a meaningful time and in a meaningful manner,”

the Court considers: (1) “the private interest that will be affected by the official

action;” (2) “the risk of an erroneous deprivation of [that] interest through the

procedures used, and the probable value, if any, of additional procedural

16

safeguards;” and (3) the “[g]overnment’s interest, including the function involved

and the .. . burdens that [any other] procedural requirement would impose.” Jd. at

333, 335 (internal quotation marks and citation omitted). That analysis animates

the Court’s thinking throughout, and is done explicitly below.

As noted above, Petitioner’s detention is mandatory under 8 U.S.C.

§ 1225(b)(2)(A). His resulting due process claim now fails for several reasons. First,

he lacks a protected liberty interest in being released into the United States—all

while he has the power to end his detention by withdrawing his defense to removal

proceedings and consenting to removal. Second, whatever process that is due is

provided by statute—which requires neither release nor a bond hearing. Lastly, the

Mathews factors would, in any event, provide no relief here, when Congress has

prescribed his mandatory detention. For each of these independent reasons, the

due process argument fails and the Petition must be dismissed.

A, Petitioner Lacks a Constitutionally Protected Interest

While “the amount and quality of process that [the Supreme Court’s]

precedents have recognized as ‘due’ under the Clause has changed considerably

since the founding, it remains the case that no process is due if one is not deprived

of ‘life, liberty, or property.” Kerry v. Din, 576 U.S. 86, 90 (2015) (internal citations

omitted) (emphasis added). Accordingly, to maintain a due process claim, a party

must first “plausibly allege a protected liberty interest.” Baez v. Pinker, 673 F.

App’x 50, 52 (2d Cir. 2016) (citing Washington v. Glucksberg, 521 U.S. 702, 721

(1997) (substantive due process); Board of Regents of State Colls. v. Roth, 408 U.S.

17

564, 571-72 (1972) (procedural due process)).!’ Indeed, it is “axiomatic that a

cognizable liberty .. . interest must exist in the first instance for a procedural due

process claim to lie.” Mudric v. Att’y Gen. of U.S., 469 F.3d 94, 98 (3d Cir. 2006)

(citing Roth, 408 U.S. at 569).

This Court’s due process analysis, therefore, “must begin with a careful

description of the asserted right.” Reno, 507 U.S. at 302. And to articulate

Petitioner’s proffered liberty interest is to refute its existence.

In particular, Petitioner, an unadmitted alien, challenges his “physical

confinement” in DHS custody. See Dkt. 1 at 8. In Zaduydas, the Supreme Court

considered due process claims pertaining to aliens “who were admitted to the

United States but subsequently ordered removed.” 533 U.S. at 682. In that

scenario, like the one presented here, the alien can be said to “claim[] a

constitutional right of supervised release into the United States.” Id. at 702 (Scalia

and Thomas, JJ., dissenting) (emphasis added). And that claim “can be repackaged

as freedom from ‘physical restraint’ or freedom from ‘indefinite detention,’ but it is[,]

at bottom[,] a claimed right of release into this country by an individual who

concededly has no legal right to be here.” Jd. (internal citation omitted) (emphasis

in original).

More precisely, Petitioner's proffered “private interest” is “not liberty in the

abstract, but liberty in the United States by someone [not] entitled to remain in this

17 Petitioner “could not conceivably claim” deprivation of “life or property” on these

facts. See Din, 576 U.S. at 92.

18

country but eligible to live at liberty in his native land.” Parra v. Perryman, 172

F.3d 954, 958 (7th Cir. 1999) (emphasis in original). In other words, Petitioner

claims a constitutionally protected right to (1) release from custody; (2) into the

United States; (3) all while he holds the keys to his freedom from physical restraint

by leaving the country.'8

The Constitution protects no such liberty interest. As discussed below, the

Supreme Court’s precedents, including Zadvydas, Demore, and Jennings, establish

that: (1) a removable alien does not have a liberty interest in being released into the

United States while removal proceedings are pending; and (2) detention under

Section 1225(b) has a definite termination point and, therefore, does not implicate

the due process concerns associated with indefinite detention. Accordingly,

Petitioner has not been deprived of a protected liberty interest. His due process

claim, therefore, must fail.

1. Petitioner Does Not Have Protected Liberty Interest in Release

into the United States

There is no basis in the Supreme Court’s precedents—or elsewhere in this

nation’s history and traditions—to expand the meaning of “liberty” to encompass

the interest Petitioner suggests.

Indeed, at the outset, “liberty,” as “originally understood . .. likely referred

only to freedom from physical restraint.” Gutierrez v. Saenz, 606 U.S. 305, 325

18 That is fundamentally different from a detention over which Petitioner has no

control.

19

(2025) (Thomas, J. dissenting). In the eighteenth century, William Blackstone

defined “the right of personal liberty” as “the power of loco-motion, of changing

situation, or removing one’s person to whatsoever place one’s own inclination may

direct; without imprisonment or restraint, unless by due course of law.” WILLIAM

BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND 1380 (1765). Following

Blackstone, “[s]tate decisions interpreting [state due process] provisions between

the founding and the ratification of the Fourteenth Amendment almost uniformly

construed the word ‘liberty’ to refer only to freedom from physical restraint.”

Obergefell v. Hodges, 576 U.S. 644, 724-25 (2015) (Thomas, J., dissenting) (citing C.

Warren, The New “Liberty” Under the Fourteenth Amendment, 39 Harv. L. Rev.

431, 441-445 (1926)).

But this case is not simply a case about criminal pretrial detention or other

straightforward infringements on freedom from physical restraint. Instead,

Petitioner himself, an applicant for admission, controls whether or not he is

detained. He can free himself by agreeing to depart. The claimed interest is unique

and, as such, an analogous measuring tool that is based on history and tradition is

needed, and may be found in the context of the Supreme Court’s adjacent

“fundamental rights” caselaw.

For example, Glucksberg supports this thought process. See e.g., Dep't of

State v. Munoz, 602 U.S. 899 (2024).19 Glucksberg requires—in addition to a

19 Munoz considered a right “in a category of one: a substantive due process right

that gets only procedural due process protection.” 602 U.S. at 911. In particular,

the Court applied Glucksberg in a situation where a citizen claimed that her “right

20

“careful description of the asserted fundamental liberty interest”—that the

purported right be “objectively, deeply rooted in this Nation’s history and tradition.”

521 U.S. at 720-721 (internal citation and quotation marks omitted). That test

helps assess the claimed liberty interest here.

Petitioner identifies no historical law—or any other aspect of this country’s

history or traditions—that supports an unadmitted alien’s claimed constitutional

liberty interest in release into the United States (or a bond hearing) while he holds

the keys to his freedom while trying to avoid removal.

Indeed, early immigration laws concerning detention lend no support to

Petitioner’s position. From the outset, the first federal immigration laws have

generally authorized detention of aliens who are subject to removal. See HILLEL R.

SMITH, CONG. RSCH. SERV. R45915, IMMIGRATION DETENTION: A LEGAL OVERVIEW 5

(2019). The first law on alien detention was the Alien Enemies Act in 1798, which

subjected certain aliens from “hostile” nations during times of war to being detained

and removed. See id. (citing Alien Enemies Act, 5 Cong. ch. 66, §§ 1, 2, 1 Stat. 577

(1798)). See also Land of the Free? Immigration Detention in the United States, 64

Fed. Law. 46, 48 (2017) (noting that the Alien Enemies Act “became the first (and

oldest) statute authorizing alien detention’).

to live with her noncitizen spouse in the United States is implicit in the ‘liberty’

protected by the Fifth Amendment. . .[and] the denial of her husband’s visa

deprived her of this interest, thereby triggering her right to due process.” Jd. at

903. The Court rejected her claim, noting that “procedural due process is an odd

vehicle for [her] argument.” Id. at 919.

21

Starting in 1875, “Congress enacted a series of laws restricting the entry of

certain classes of aliens (e.g., those with criminal convictions), and requiring the

detention of aliens who were excludable under those laws until they could be

removed.” SMITH, supra at 5 (citing Page Act of 1875, 43 Cong. ch. 141, § 5, 18 Stat.

477 (1875); Immigration Act of 1882, 47 Cong. ch. 376, § 2, 22 Stat. 214 (1882);

Immigration Act of 1891, 51 Cong. ch. 551, § 8, 26 Stat. 1084, 1085 (1891); An Act to

Facilitate the Enforcement of the Immigration and Contract-Labor Laws of the

United States, 52 Cong. ch. 206, § 5, 27 Stat. 569, 570 (1893)).

In construing the Government’s detention authority, the Supreme Court in

1896 declared that, “[w]e think it clear that detention or temporary confinement, as

part of the means necessary to give effect to the provisions for the exclusion or

expulsion of aliens, would be valid.” Wong Wing, 163 U.S. at 235. And as noted

above, the Court explained that, “[p]roceedings to exclude or expel would be vain if

those accused could not be held in custody pending the inquiry into their true

character, and while arrangements were being made for their deportation.” Id.

Over the next few decades (leading up to enactment of the INA), Congress

“continued to enact laws generally mandating the detention and exclusion of

proscribed categories of aliens seeking entry into the United States, as well as

aliens physically present in the United States who became subject to removal.”

SMITH, supra at 6 (citing Immigration Act of 1903, 57 Cong. Ch. 1012, § 21, 32 Stat.

1213, 1218 (1903); Immigration Act of 1907, 59 Cong. Ch. 1134, §§ 20, 21, 24, 34

22

Stat. 898, 904-06 (1907); Immigration Act of 1917, 64 Cong. Ch. 29, §§ 16, 19, 39

Stat. 874, 886, 889 (1917)).

No aspect of this historical landscape supports Petitioner’s purported liberty

interest. Petitioner has not been deprived of any protected liberty interest. To the

extent he seeks “freedom from physical restraint,” he may “withdraw his defense of

the removal proceeding and return to his native land, thus ending his detention

immediately.” Parra, 172 F.3d at 958. In other words, he holds “the keys in his

pocket.” Id. But it stretches the concept of liberty “too far” to suggest that

Petitioner is deprived of liberty when he is not released into the United States—all

while he holds the keys to his freedom, yet fights his removal.

2. Petitioner Does Not Have a Protected Liberty Interest in

Freedom from “Prolonged” Detention

Petitioner also cannot establish a protected liberty interest based on the

duration of his detention in DHS custody. There is no suggestion that his detention

is divorced from ongoing, good-faith removal proceedings. And as discussed below,

Petitioner’s detention has a definite termination point—the conclusion of his

removal proceedings. In the meantime, he may obtain release by consenting to

removal to his native country rather than continuing to contest removal. These

circumstances differ materially from the sort of potentially indefinite detention that

the Supreme Court instructs may, at some point, raise due process concerns.

For example, in Zadvydas, the Supreme Court concluded that, “indefinite

detention of aliens” who “were admitted to the United States but subsequently

23

ordered removed” would “would raise serious constitutional concerns.” 533 U.S. at

682.20

Two years later, in Demore, the Court distinguished detention of criminal

aliens under Section 1226(c) from the indefinite detention discussed in Zadvydas.

In particular, the Court concluded that Section 1226(c) detention is permissible

because it is neither “indefinite” nor “potentially permanent.” See 538 U.S. at 528.21

Zadvydas itself recognized the same distinction. There, the Court distinguished

Section 1231 from Section 1226(c) based on the indefiniteness of the detention:

“importantly,” the Court said, “post-removal-period detention, unlike detention

pending a determination of removability or during the subsequent 90-day removal

period, has no obvious termination point.” Zadvydas, 533 U.S. at 697. See also

Demore, 538 U.S. at 529 (“Zadvuydas distinguished the statutory provision it was

there considering from § 1226 on these very grounds.”).

Zadvydas also recognized that aliens, like Petitioner here, “who have not yet

gained initial admission to this country|,] would present a very different question”

than “aliens who were admitted to the United States but subsequently ordered

removed.” 533 U.S. at 682 (emphasis added). The Jennings Court then concluded

20 Zadvuydas addressed detention under Section 1231, which governs detention of

aliens subject to final orders of removal.

21 The Court later emphasized in Jennings that Demore “made clear” that the

“definite termination point—and not some arbitrary time limit devised by courts—

marks the end of the Government’s detention authority under § 1226(c).” 583 U.S.

at 304 (internal quotation marks omitted).

24

that Sections “1225(b)(1) and (b)(2) . . . mandate detention of applicants for

admission until certain proceedings have concluded.” 583 U.S. at 297. And once

“those proceedings end, detention under § 1225(b) must end as well.” Jd. Until

“that point, however, nothing in the statutory text imposes any limit on the length

of detention.” Id.22

Zadvydas also instructs that “an alien may be held in confinement until it

has been determined that there is no significant likelihood of removal in the

reasonably foreseeable future.” 533 U.S. at 701. In other words, only “once removal

is no longer reasonably foreseeable, continued detention is no longer authorized by

statute.” Id. at 699. Due process considerations arise once removal is no longer

foreseeable because, “where detention’s goal is no longer practically attainable,

detention no longer bears a reasonable relation to the purpose for which the

individual was committed.” Id. at 690 (internal quotation marks and alterations

omitted). That “purpose,” the Court said, was “ensuring the appearance of aliens at

future immigration proceedings.” Jd. (internal citation omitted).

But the key principle of Zadvydas requiring additional justification for

detention that no longer serves its purpose does not apply in the case of applicants

22 Tt is true that, in Demore, the Court described detention pending deportation as

“brief,” “limited,” and “short[].” Demore, 538 U.S. at 513, 523, 526. But nothing in

Demore mandates any specific form of brevity; nor does Demore define that term.

Instead, the Demore Court recognized that detention pending a determination of

removability has a “definite termination point.” Jd. at 529. In short, it is the

indefiniteness of the detention—not its mere length—that implicates the Due

Process Clause. The “why, in other words, is more important than how long.”

Banyee v. Garland, 115 F.4th 928, 932 (8th Cir. 2024) (emphasis in original).

25

for admission whose removal proceedings are ongoing. Under the circumstances of

Zadvydas—where “removal proceedings had ended, a final order of removal had

issued, the statutory removal period had expired, and there still was no likelihood of

effectuating the removal—the detention no longer appeared to serve the purpose of

facilitating ongoing removal proceedings.” Black v. Almodovar, 156 F.4th 171, 183

(2d Cir. 2025) (Menashi, J., dissenting from the denial of rehearing en banc) (citing

Demore, 538 U.S. at 527).

Those circumstances bear no resemblance to detention of applicants for

admission during removal proceedings. Detention under Section 1225(b)(2)(A) 1s

authorized—and required—if the “examining immigration officer determines that

an alien seeking admission is not clearly and beyond a doubt entitled to be

admitted.” And as the Jennings Court noted, detention under Section 1225(b) must

end when certain proceedings have concluded.

At bottom, the duration of Petitioner's detention has resulted from his

continued attempts to avoid removal and remain in this country. He is, in essence,

his own gatekeeper. As noted above, Petitioner chose to appeal an Immigration

Judge’s denial of his request for protection under the regulations implementing the

Convention against Torture. See Dkt. 1 at 14-16. Following BIA’s remand of the

case, and the Immigration Judge’s subsequent removal order, Petitioner again filed

an appeal with BIA, which remains pending. See Dkt. 4-3 at 1-2.

Petitioner, of course, may avail himself of all “process” available to him in his

removal proceedings—including requesting extensions of time, adding claims or

26

bases for relief from removal, and appealing all adverse decisions. But he cannot

expect resulting delay in his removal proceedings to give birth to a due process

claim. If a petitioner could delay enough and thereby earn release, he could defeat

the process. See Demore, 538 U.S. at 531 n.14 (concluding “there is no

constitutional prohibition against requiring parties” to “mak[e] . . . difficult

judgments,” such as whether to risk a lengthier detention by exercising their right

to appeal); id. at 531 n.15 (considering the delay resulting from the alien’s request

for a continuance of his removal hearing so he could obtain relevant documents).

Indeed, the Second Circuit has held that, “[a]lthough this litigation strategy

is perfectly permissible,” an alien “may not rely on the extra time resulting

therefrom to claim that his prolonged detention violates substantive due process.”

Doherty v. Thornburgh, 943 F.2d 204, 211 (2d Cir. 1991).

The fact is that an alien detained under Section 1225(b) “has the keys in his

pocket’ and can ‘end his detention immediately’ by ‘withdrawing his defense and

returning to his native land.” Banyee, 115 F.4th at 933 (alterations omitted)

(quoting Parra, 172 F.3d at 958). And as the Second Circuit noted in another

context, “from the outset of his detention, [the petitioner] has possessed, in effect,

the key that unlocks his prison cell.” Doherty, 948 F.2d at 212.

Here, too, if Petitioner “had agreed to deportation in the first place, he would

not have been detained” for the past two years. See id. He controls whether he is

detained or not. Indeed, it is “a perverse interpretation of the Due Process Clause”

under which Congress, by affording an unadmitted alien “more process to contest

27

his removal and to seek immigration relief, thereby invalidates its own authority to

detain the alien until the process concludes.” See Black, 156 F.4th at 186 (Menashi,

J., dissenting from the denial of rehearing en banc) (emphasis in original).

In sum, the length of Petitioner’s detention does not violate due process.

There is no indication that Petitioner’s pending removal proceedings are a sham, or

that Respondents are otherwise unlikely to effectuate his removal—if ordered and

upheld—in the reasonably foreseeable future. What “is important is that,

notwithstanding [any] delay, deportation remains a possibility.” Banyee, 115 F.4th

at 933) (internal citation omitted). And because detention under Section 1225(b)

“has a definite termination point” at “the conclusion of removal proceedings,”

removal remains possible throughout Section 1225(b) detention. Jennings, 583 U.S.

at 304 (internal quotation marks omitted).

This conclusion adheres to the Supreme Court’s instruction that “an alien

may be held in confinement until it has been determined that there is no significant

likelihood of removal in the reasonably foreseeable future.” Zaduydas, 533 U.S. at

701.

The Court’s holding in Demore aligns with its prior recognition that “the

responsibility for regulating the relationship between the United States and [its]

alien visitors [is] committed to the political branches of the Federal Government.”

Diaz, 426 U.S. at 81. Indeed, “[o]ver no conceivable subject is the legislative power

of Congress more complete.” Flores, 507 U.S. at 305 Gnternal quotation marks and

citations omitted). Because decisions regarding immigration “may implicate [the

28

United States’] relations with foreign powers, and [because] a wide variety of

classifications must be defined in the light of changing political and economic

circumstances, such decisions are frequently . . . more appropriate [for] either the

Legislature or the Executive than [for] the Judiciary.” Diaz, 426 U.S. at 81. See

also Valenzuela-Bernal, 458 U.S. at 864 (citing Diaz, 426 U.S. at 81) (“The power to

regulate immigration—an attribute of sovereignty essential to the preservation of

any nation—has been entrusted by the Constitution to the political branches of the

Federal Government.”).

Indeed, imagine a scenario where the number of aliens surges, increasing the

volume of removal proceedings and, thereby, slowing the pace at which those

proceedings move. If duration alone warrants bond hearings, that scenario

arrogates this very sovereignty issue to the judiciary—and to the aliens themselves

by virtue of their chosen litigation strategy. The Constitution does not require that

outcome.

As a result of these broad concerns, the Supreme Court has “underscore[d]

the limited scope of judicial inquiry” into issues related to immigration

legislation. Fiallo, 430 U.S. at 792. The power over matters related to “aliens is of

a political character and therefore subject only to narrow judicial review.” Id.

(citation omitted). In particular:

[A]ny policy toward aliens is vitally and intricately interwoven with

contemporaneous policies in regard to the conduct of foreign relations,

the war power, and the maintenance of a republican form of

government. Such matters are so exclusively entrusted to the

29

political branches of government as to be largely immune from

judicial inquiry or interference.

Diaz, 426 U.S. at 81 n.17 Gnternal quotation marks and citations omitted).

Against this careful backdrop, courts must pay particular attention to the

constitutional interests, governance concerns, and individual rights involved in

these weighty questions. Indeed, courts must employ “a narrow standard of review

of decisions made by the Congress or the President” regarding immigration and

must exercise “the greatest caution” in evaluating constitutional claims that

implicate those decisions. See id. at 81-82.

Under these circumstances, Petitioner does not have a Constitutionally

protected liberty interest.

B. Any Process Due to Petitioner is Provided by Statute

Even assuming the existence of a relevant, protected liberty interest,

Petitioner has received all the process that he is due. As discussed above, Petitioner

is an “applicant for admission” under Section 1225(a)(1) and is detained pursuant to

Section 1225(b)(2)(A). Accordingly, for the reasons below, any process due to

Petitioner is limited to the procedure authorized by Congress, which requires

neither release nor a bond hearing.

Once an “alien lawfully enters and resides in this country[,] he becomes

invested with the rights guaranteed by the Constitution to all people within our

borders.” Kwong Hai Chew v. Colding, 344 U.S. 590, 598 n.5 (1953) (emphasis

30

added).23 But the Supreme Court “has long held that an alien seeking initial

admission to the United States requests a privilege and has no constitutional rights

regarding his application, for the power to admit or exclude aliens is a sovereign

prerogative.” Landon v. Plasencia, 459 U.S. 21, 32 (1982) (emphasis added).

Indeed, the “Bill of Rights is a futile authority for the alien seeking admission for

the first time to these shores.” Kwong Hai Chew, 344 U.S. at 598 n.5.24

23 Indeed, “[m]Jere lawful presence in the country creates an implied assurance of

safe conduct and gives him certain rights; they become more extensive and secure

when he makes preliminary declaration of intention to become a citizen, and they

expand to those of full citizenship upon naturalization.” Id. The Court is aware

that the Supreme Court has recognized due process rights in aliens’ removal

proceedings, see, e.g., Demore, 538 U.S. at 523 (“It is well established that the Fifth

Amendment entitles aliens to due process of law in deportation proceedings”)

(quoting Reno, 507 U.S. at 305), and that certain rights apply to all “persons.” Buta

very narrow claimed right is at issue in this case.

24 The Court rejects any argument that Petitioner is not “seeking admission”

because he was not apprehended the instant he attempted to enter the country. In

Dep’t of Homeland Sec. v. Thuraissigiam, the Supreme Court rejected an argument

that an alien who “succeeded in making it 25 yards into U.S. territory before he was

caught” should be “treated more favorably” than if he had been stopped at the

border. 591 U.S. 103, 139 (2020). Like “an alien detained after arriving at a port of

entry,” Petitioner must be treated as if he “is ‘on the threshold” of initial entry. Id.

at 140 (quoting Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 212

(1953)). In other words, although Petitioner had been “physically present in the

United States” for a period of time prior to apprehension by DHS, he “is ‘legally

considered to be detained at the border and hence as never having effected entry

into this country.” Sierra Immigr. & Naturalization Serv., 258 F.3d 1213, 1218

(10th Cir. 2001) (quoting Gisbert v. U.S. Attorney Gen., 988 F.2d 1437, 1440 (5th

Cir.), amended by 997 F.2d 1122 (5th Cir. 1993)). To conclude otherwise “would

undermine the ‘sovereign prerogative” of governing admission to this country and

create a perverse incentive to enter at an unlawful rather than a lawful location.”

Thuraissigiam, 591 U.S. at 140 (quoting Landon, 459 U.S. at 32). The duration of

time evading removal does not change the result.

31

More than a century ago, the Supreme Court “wrote that[,] as to ‘foreigners

who have never been naturalized, nor acquired any domicil or residence within the

United States, nor even been admitted into the country pursuant to law,’ ‘the

decisions of executive or administrative officers, acting within powers expressly

conferred by Congress, are due process of law.” Thuraissigiam, 591 U.S. at 138

(quoting Nishimura Ekiu v. United States, 142 U.S. 651, 660 (1892)). Since then,

the Court “has often reiterated this important rule.” Id.

For example, in 1953, the Court emphasized that “an alien on the threshold

of initial entry” stands on a “different footing” than “aliens who have once passed

through our gates”—and explained that, “[w]hatever the procedure authorized by

Congress is, it is due process as far as an alien denied entry is concerned.” Mezet,

345 U.S. at 212 (internal citation and quotation marks omitted). See also U.S. ex

rel. Knauff v. Shaughnessy, 338 U.S. 537, 544 (1950) (“Whatever the procedure

authorized by Congress is, it is due process as far as an alien denied entry is

concerned”). Accordingly, when “a noncitizen attempts to unlawfully cross the

border,” his “constitutional right to due process does not extend beyond the rights

provided by statute.” Petgrave v. Aleman, 529 F. Supp. 3d 665, 676 (S.D. Tex. 2021).

Any process due to Petitioner, therefore, is limited to “the procedure

authorized by Congress.” Mezei, 345 U.S. at 212. See also Augustin v. Sava, 735

F.2d 32, 36 (2d. Cir. 1984) (“Although aliens who petition for admission have no

constitutional rights regarding their applications, they do have such statutory

rights as Congress grants”).

32

Section 1225(b)(2)(A), with limited exceptions irrelevant here, mandates

detention of aliens in removal proceedings: “in the case of an alien who is an

applicant for admission, if the examining immigration officer determines that an

alien seeking admission is not clearly and beyond a doubt entitled to be admitted,

the alien shall be detained for a proceeding under section 1229a of this title”

(emphasis added). See also 8 C.F.R. § 235.3(b)(1)Gi) (same).25 In fact, immigration

judges are prohibited by regulation from holding bond hearings for arriving aliens.

See 8 C.F.R. § 1003.19(h)(2)G)(B) (“[A]n immigration judge may not redetermine

conditions of custody imposed by the Service with respect to. . . [a]rriving aliens in

removal proceedings, including aliens paroled after arrival pursuant to section

212(d)(5) of the Act.”).

Indeed, the Supreme Court has confirmed that, read “most naturally,”

Section 1225(b)(2) “mandate[s] detention of applicants for admission until certain

proceedings have concluded.” Jennings, 583 U.S. at 297. And once “those

proceedings end, detention under § 1225(b) must end as well.” Jd. Until “that

point, however, nothing in the statutory text imposes any limit on the length of

detention.” Id. And Section 1225(b)(2) does not say “anything whatsoever about

bond hearings.” Id. See also Nieto v. Ceja, No. 1:24-CV-02821-DDD-NRN, 2025

WL 4087626, at *7 (D. Colo. June 12, 2025) (“[P]rocedural due process does not

25 In addition, 8 U.S.C. § 1182(d)(5) authorizes the Secretary of Homeland Security,

“in his discretion,” to parole noncitizens applying for admission to the United States

“on a case-by-case basis for urgent humanitarian reasons or significant public

benefit.”

33

afford inadmissible arriving aliens subject to prolonged detention a right to release

or a bond hearing prior to the conclusion of removal proceedings. . . . The statutory

procedures authorized by Congress here dictate that [the petitioner] be detained

unless she is admitted or paroled... and the parole statute commits the decision of

whether to parole an inadmissible arriving alien to the discretion of the Secretary

of Homeland Security”) Gnternal citations omitted)).

Accordingly, Petitioner has received all the process he is due.26 And because

the relevant statute requires neither release nor a bond hearing, Petitioner’s

procedural due process claim fails for this reason too.

C. Petitioner Also Fails Under Mathews v. Eldridge

Finally, to the extent a potential due process claim remains for further

evaluation, this Court recognizes that, as a general proposition, deciding what

process is due ordinarily requires interest balancing under the framework outlined

in Mathews v. Eldridge, 424 U.S. 319, 334 (1976).27

26 Velasco Lopez v. Decker, 978 F.3d 842 (2d Cir. 2020), and Black v. Decker, 103

F.4th 133 (2d Cir. 2024), do not control here. Those cases address detention under

Sections 1226(a) and (c). The Second Circuit has never held that aliens detained

pursuant to Section 1225(b)—and are “seeking admission”—are entitled to bond

hearings after any period of detention. Section 1226 can be limited, as the

Government does, to admitted aliens. And those decisions do not articulate a

historical liberty interest of the sort that Petitioner claims here. Finally, to the

extent these cases are somehow read to require a Mathews analysis here, that

follows.

27 See, e.g., Black, 103 F.4th at 150; Velasco Lopez, 978 F.3d at 842. In this Court’s

view, however, Zadvydas and Demore have already done whatever balancing is

necessary. See, e.g., Zadvydas, 533 U.S. at 682, 701 (linking a “reasonable time’

limitation” to “the likelihood of removal in the reasonably foreseeable future”);

Demore, 538 U.S. at 528 (explaining that, “when the Government deals with

34

The Mathews factors favor Respondents. First, while Petitioner asserts an

interest in freedom from imprisonment, the “private interest here is not liberty in

the abstract, but liberty in the United States” by someone who has not been

admitted to the country but remains eligible to live at liberty in his native land. See

Parra, 172 F.3d at 958. And any interest Petitioner may have in freedom from

imprisonment is outweighed by the fact that “the Government may constitutionally

detain deportable aliens during the limited period necessary for their removal

proceedings.” Demore, 538 U.S. at 526. Moreover, because Petitioner’s detention

has a definite end point, any private interest will only be affected for a limited time.

Second, the risk of erroneous deprivation of liberty here is slight. There is no

evidence to suggest that the ordinary process is deficient in mitigating the risk of, or

has led to, an error. Nor does Petitioner claim he is not the person who ICE sought

to detain. Additionally, Petitioner was convicted of assault in the second degree—a

felony—for which he was sentenced to incarceration. See Dkt. 4-2 at 2. This

demonstrates that Petitioner poses a risk of danger to the community—and his

willful disregard for the law also renders him a flight risk.

deportable aliens, the Due Process Clause does not require it to employ the least

burdensome means,” so it is sufficient if “detention necessarily serves the purpose of

preventing deportable aliens from fleeing prior to or during their removal

proceedings”). And the Demore majority opted for a bright-line rule: the

government can detain an alien for as long as deportation proceedings are still

“pending.” 538 U.S. at 527. Nevertheless, an analysis of the Mathews factors does

not alter the outcome.

35

Lastly, the Government has a substantial interest in ensuring that

deportable aliens appear for immigration proceedings. Indeed, the “public interest

is substantial given the high flight rate of those released on bail.” Parra, 172 F.3d at

958. The Government also has a substantial interest in this and many like cases in

preventing risk to the community by releasing potentially dangerous aliens from

detention.

In sum, even if some Governmental deprivation—and some relevant and

context-specific liberty rights—existed here, the amount of corresponding process

that would be due to Petitioner on this release question under the three-factor,

“flexible,” and “situation[al]” approach outlined in Mathews remains the amount

provided for by Congress.

CONCLUSION

For these reasons, the relief requested in the Petition for a writ of habeas

corpus is denied. The Petition is dismissed. The Clerk of Court shall close this

case.

SO ORDERED.

Dated: March 19, 2026

Buffalo, New York gS

JOHN L. SINATRA, JR. □□

UNITED STATES DISTRICT JUDG

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