# Kurzdorfer

> District Court, W.D. New York · March 19, 2026

URL: https://www.frixlaw.com/law-library/cases/11278188

## Case

- **Full name:** Nelson Omar Rivera Castillo v. 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
- **Court:** District Court, W.D. New York
- **Decided:** March 19, 2026
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11278188

## How later opinions describe it (automated extraction)

- 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”

## Opinion text

5 STATES DISTRIC >
UNITED STATES DISTRICT COURT SE FILED Coy
WESTERN DISTRICT OF NEW YORK S Px
ee MAR 1 9 2096
ly Worey gah
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.

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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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11278188. Public record. Not legal advice.