Abdyl-Salam

S DIST,

UNITED STATES DISTRICT COURT 6 Ricr CO»

WESTERN DISTRICT OF NEW YORK Pn

ee ET JUL 13 2026

GHULAM ABDYL-SALAM, Prsoren SE

ZERN DISTRICS

Petitioner,

v. 26-CV-1132 (JLS)

TODD BLANCHE, in his official

capacity as Acting Attorney General,

MICHAEL BALL, in his official

capacity as Acting Deputy Field Office

Director, Buffalo Field Office, U.S.

Immigration & Customs Enforcement,

PHILIP RHONEY, in his official

capacity as Acting Field Office Director,

Buffalo Field Office, U.S. Immigration

& Customs Enforcement, DAVID

VENTURELLA, in his official capacity

as Senior Official Performing the Duties

of the Director, U.S. Immigration and

Customs Enforcement, and

MARKWAYNE MULLIN, in his official

capacity as Secretary of Homeland

Security,

Respondents. !

DECISION AND ORDER

This Court has examined the Second Circuit’s recent decision in da Cunha v.

Freden, 175 F. 4th 61 (2d Cir. 2026). To the extent the holding therein conflicts with

this Court’s decisions in Rivera Castillo v. Rhoney, No. 25-CV-1065 (JLS), 2026 WL

775995 (W.D.N.Y. Mar. 19, 2026), and Ferreira Candido v. Bondi, No. 25-CV-867

' The caption has been updated pursuant to Federal Rule of Civil Procedure 25(d).

(JLS), 2025 WL 3123696 (W.D.N.Y. Nov. 7, 2025), this Court is bound to follow the

Second Circuit's da Cunha dictates.2 The balance of this Court’s analysis in Rivera

Castillo and Ferreira Candido bears reference and is incorporated here.

DISCUSSION

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

DETENTION.

As relevant here, in da Cunha, the Second Circuit ruled that:

1. “A noncitizen like [da Cunha] is unlawfully present, and thus an ‘applicant

for admission,’ but indisputably never sought or applied for lawful entry after

inspection and authorization, and is not doing so now. To the contrary, he

evaded immigration inspectors, snuck into the country, and today applies

only for non-admission forms of relief, including asylum and cancellation of

removal.” da Cunha, 175 F.4th at 75-76.

2. “Here, although [da Cunha] is an applicant for admission under the

statutory definition because he is present in the country and has never been

admitted, it simply cannot be said that he is ‘seeking admission,’ as he is not

requesting lawful entry into the United States. By total contrast, [da

Cunha] entered the interior unlawfully twenty years ago and is now seeking

only relief from removal. Therefore, because Section 1225(b)(2)(A) applies

2 The Court notes that the Government filed a petition for a writ of certiorari in a case

analogous to da Cuhna. See Lopez-Campos v. Raycraft, 175 F.4th 713 (6th Cir. 2026),

petition for cert. filed, (U.S. Jun. 22, 2026) (No. 25-1415).

only to a noncitizen who is both an ‘applicant for admission’ and ‘seeking

admission,’ it does not apply to [da Cunha].” Jd. at 74.

3. “Section 1225(b)(2)(A) does not apply to such noncitizens, who are present in

the United States after entering the country without inspection and

admission, and who were not apprehended while entering the country or

shortly thereafter.” Id. at 69.

4. “Together, Section 1225(b)(2) therefore applies only to (1) noncitizens who

are present and have not been admitted, and (2) are requesting (3) lawful

entry into the United States after inspection and authorization.” Id. at 74.

5. “Instead, Section 1225(b)(2)(A) applies to those noncitizens who present

themselves at a port of entry for admission, or who cross the physical border

into the United States but are apprehended at the ‘threshold of initial entry.”

Id. at 75 (quoting Dep? of Homeland Sec. v. Thuraissigiam, 591 U.S. 103,

107 (2020) (holding that a noncitizen “apprehended just 25 yards from the

border” had not effected an “entry”), and citing Leng May Ma v. Barber, 357

U.S. 185, 189 (1958) (treating noncitizens paroled into the country “as [if]

stopped at the boundary line”)) (citation modified).

In da Cunha, the Second Circuit drew a distinction between aliens who “snuck

into” the country and “evaded” detection for years (ruling that a bond hearing is

required) and aliens who were encountered at or near the border (where no bond

hearing is required).

Here, Petitioner is in the latter category. See Dkt. 1, at 3 J 1, 2. (‘Petitioner is

a native and citizen of Afghanistan ... [and] entered the United States on or about

February 13, 2023, near El Paso, Texas....”). In particular, he was released on

parole. See Dkt. 4-3, at 3; Dkt. 5, at 2.

As such, under da Cunha, “Section 1225(b)(2)(A) applies to those noncitizens

[like Petitioner here] who present themselves at a port of entry for admission, or who

cross the physical border into the United States but are apprehended at the ‘threshold

of initial entry.” da Cunha, 175 F.4th at 75 (citation modified).

Petitioner indeed was “seeking admission” into the United States when he

entered and was first encountered by government agents. He was at or near the

border intending to enter and remain here. He has voluntarily remained since (until

the commencement of his current detention), thereby continuing to “seek” admission to

the United States. How could it be otherwise? If he were not so seeking admission, he

would have given up and departed already and, certainly, would have so departed

after his release. In sum, Petitioner is not entitled to a bond hearing under the

statute.

3 Nevertheless, the Government’s current position is to oppose bond hearings only in

cases where the petitioner was encountered at or near the border and released on

parole.

II. 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.

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 v. Kim, 538 U.S. 510, 523 (2008) (quoting

Reno v. Flores, 507 U.S. 292, 306 (1993) (citation modified). But Petitioner is not

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

Court has 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 Zadvydas v. Davis, 533 U.S. 678, 711 (2001) (Kennedy, J.,

dissenting) (“Congress’ power to detain aliens in connection with removal or exclusion

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 safeguards;” and (3) the

“[glovernment’s interest, including the function involved and the . . . burdens that [any

other] procedural requirement would impose.” Jd. at 333, 335 (citation modified).

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 current 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) (citation modified).

Accordingly, to maintain a due process claim, a party first must have “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. 564, 571-72 (1972) (procedural due process)).4 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. Ait’y Gen. of U.S., 469 F.3d 94, 98 (8d

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 16-18. In Zadvydas, 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) (citation modified). 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. (citation modified) (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

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

facts. See Din, 576 US. at 92.

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,

(8) all while he holds the keys to his freedom from physical restraint by leaving the

country.5

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 (2025)

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

control.

(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 180 (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, 441-45 (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).6 Glucksberg requires—in addition to a “careful

6 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 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.” Id. at 903. The Court rejected

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 720-21

(citation modified). 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”).

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

her claim, noting that “procedural due process is an odd vehicle for [her] argument.”

Id. at 919.

10

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; “[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: “[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.” Jd.

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 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

11

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

pocket.” Jd. 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

Nor can Petitioner 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 ordered

removed” would “would raise serious constitutional concerns.” 533 U.S. at 682.7

7 Zadvydas addressed detention under Section 1231, which governs detention of aliens

subject to final orders of removal.

12

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 588 U.S. at 528.8 Zaduydas

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

(“Zadvydas distinguished the statutory provision it was there considering from

[Section] 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 (citation modified). The Jennings Court then concluded

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 [Section] 1225(b) must end as well.” Id. Until “that

8 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

(citation modified).

13

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

detention.”

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” is “continued detention . .. 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 (citation modified). That “purpose,” the Court said, was

“ensuring the appearance of aliens at future immigration proceedings.” Id. (citation

modified).

But the key principle of Zaduydas, requiring additional justification for

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

9 It is true that, in Demore, the Court described detention pending deportation as

“brief,” “limited,” and “short[ ].” Demore, 538 U.S. at 518, 528, 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).

14

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).10

Those circumstances bear no resemblance to detention of applicants for

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

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.

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

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

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

10 On June 15, 2026, the Supreme granted certiorari on the issue of whether there is a

point at which an alien’s detention under 8 U.S.C. § 1226(c), pending a decision on

removal, becomes “unreasonably prolonged,” such that due process requires a bond

hearing. See Black v. Decker, 103 F.4th 133 (2d Cir. 2024), cert. granted, Genalo v.

Black, 2026 WL 1718025 (U.S. Jun. 15, 2026) (No. 25-886).

15

against requiring parties” to “makf[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 (citation modified) (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, 943 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 8 months. 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 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).

16

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) (citation

modified). 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 (citation modified).

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.” Zadvydas, 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 (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

17

(1982) (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

v. Bell, 430 U.S. 787, 792 (1977). 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 political

branches of government as to be largely immune from judicial inquiry

or interference.

Diaz, 426 U.S. at 81 n.17 (citation modified).

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

18

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 (1958) (citation

modified).!! 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

11 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.” But a very narrow claimed right is

at issue in this case.

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

prerogative.” Landon v. Plasencia, 459 U.S. 21, 32 (1982) (citation modified). 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.5.12

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.

12 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 Department

of Homeland Security 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 12138, 1218 (10th Cir. 2001) (quoting

Gisbert v. U.S. Attorney Gen., 988 F.2d 1487, 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.

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For example, in 19538, 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.” Mezei, 345

U.S. at 212 (citation modified). See also U.S. ex rel. Knauff v. Shaughnessy, 338 US.

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’).

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” (citation modified). See

also 8 C.F.R. § 235.3(6)(1)Gi) (same).!8 In fact, immigration judges are prohibited by

13 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.”

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regulation from holding bond hearings for arriving aliens. See 8 C.F.R. §

1003.19(h)(2)@)(B) (“[A]n immigration judge may not redetermine conditions of

custody imposed by the Service with respect to. . . [a]Jrriving 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 [Section] 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 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”)

(citation modified).

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Accordingly, Petitioner has received all the process he is due.!4 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).15

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

14 Velasco Lopez v. Decker, 978 F.3d 842 (2d Cir. 2020), and Black v. Decker, 103 F.4th

133 (2d Cir. 2024) cert. granted, Genalo v. Black, 2026 WL 1718025 (U.S. Jun. 15,

2026) (No. 25-886), 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. 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.

15 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

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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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.

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.

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CONCLUSION

For the reasons stated above, Petitioner is detained under 8 U.S.C.

§ 1225(b)(2)(A) and is not otherwise entitled to a bond hearing. Respondents’ motion

to dismiss, Dkt. 4, is granted, and the petition is denied.

The Clerk of Court shall close this case.

SO ORDERED.

Dated: July 138, 2026 :

Buffalo, New York ( □ AT

ORITED re ee ma

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