The opinion
Ties DISTRICF
ES FILED Oy
UNITED STATES DISTRICT COURT = JUL 23 2026
WESTERN DISTRICT OF NEW YORK
$eeeeeSSSSSSSSSSSS Lip NORE wy were SLE
STERN DISTRO!
WARDIS AGUILAR-VILLALOBOS,
Petitioner,
v. 26-CV-604 (JLS)
TODD BLANCHE, in his official
capacity as Acting Attorney General:
MARKWAYNE MULLIN, in his official
capacity as Secretary of Homeland
Security; MICHAEL BALL, in his
official capacity as Acting Deputy Field
Office Director, Buffalo Field Office,
U.S. Immigration & Customs
Enforcement; and PHILIP RHONEY, in
his official capacity as Acting Field
Office Director, Buffalo Field Office,
U.S. Immigration & Customs
Enforcement,
Respondents. !
DECISION AND ORDER
Petitioner Wardis Aguilar-Villalobos is a native and citizen of El Salvador who
has filed a habeas corpus proceeding before this Court pursuant to 28 U.S.C. § 2241.
Dkt. 1 at 10, 44. Respondents moved to dismiss the petition. Dkt. 11. This is not the
first time that Petitioner has filed a habeas corpus proceeding before this Court. See
Agutlar-Villalobos v. Kurzdorfer, 812 F. Supp. 3d 279 (W.D.N.Y. 2025). In Petitioner’s
previous case, this Court denied Petitioner’s habeas corpus petition, holding that
' The caption has been updated pursuant to Federal Rule of Civil Procedure 25(d).
Petitioner’s immigration detention was not unreasonably prolonged in violation of
Fifth Amendment due process. Id. at 288. This Court reasoned that Petitioner was
detained as a “certain other alien’ under 8 U.S.C. § 1225(b), who, under the statutory
and regulatory framework, is treated as an ‘arriving alien.” Id. at 285.
Even if this were not the case, 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 (JLS), 2025 WL 3123696 (W.D.N.Y. Nov. 7, 2025), this Court
would be bound to follow the Second Circuit’s da Cunha dictates.2
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 The Court notes that the Government filed a petition for a writ of certiorari in a case
analogous to da Cuhna. See Petition for Writ of Certiorari, Raycraft v. Lopez-Campos,
No. 25-1415 (U.S. Jun. 22, 2026), Dkt. No. 1.
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
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't 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, if da Cunha applied, Petitioner would be in the latter category. See Dkt.
1, at 2 (explaining how in 2012, Petitioner was detained by Border Patrol and released
on bond); Dkt. 23, at 1 (“Petitioner Aguilar-Villalobos entered the United States in
2012 and was released on bond”); see also Aguilar-Villalobos, 812 F. Supp. at 285
(“Petitioner entered the United States at the United States-Mexico Border. . .[, and]
was detained within 100 miles of the border and within 14 days of his entry into the
United States—and then established a credible fear of persecution and was referred
for further consideration of his asylum application.”).3
3 Petitioner argues that because he was not paroled, his detention could not be
classified as a Section 1225(b) case. This argument may have arisen because in most
of its recent cases, the Government has only been opposed to a bond hearing in cases
where the petitioner was encountered at or near the border and released on parole. In
the instant case, however, the Government elaborates that it is opposed to a bond
hearing for Petitioner because its position is based not on “how an alien is released
from detention” but on how an alien “enters the United States.” See Dkt. 25. This
position comports with Section 1225(b)(1)(B)(ii), which indicates that “ fa]f the officer
determines at the time of the interview that an alien has a credible fear of persecution
As such, under da Cunha, “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.”
da Cunha, 175 F.4th at 75 (citation modified),
Even if Section 1225(b)(1)(B)(ii) did not apply, Petitioner certainly would have
been “seeking admission” into the United States under Section 1225(b)(2)(A) 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 either
Section 1225(b)(1)(B)(ii) or Section 1225(b)(2)(A).
If. 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.
It is indisputable that Petitioner has been detained for a long time. In 2022,
Petitioner was convicted of “attempted gun possession” in New York state court and
sentenced to “30 months” of imprisonment. Dkt. 1, at 2. He was ordered deported by
..., the alien shall be detained for further consideration of the application of asylum.”
§ 1225(b)(1)(B)Gi) (emphasis added). This position also comports with this Court’s
previous finding in Aguilar-Villalobos. 812 F. Supp. at 285.
an immigration judge on February 26, 2023. Id. at 25. Petitioner appealed this
decision on March 13, 2023, to the Board of Immigration Appeals. Id. This appeal
was denied on August 1, 2024. Id. On August 10, 2024, Petitioner appealed his case
to the Second Circuit Court of Appeals. Id, The Second Circuit granted him a stay of
removal pending review. Id.; see also Dkt. 23, at 1 (Petitioner has “a stay motion
granted before the Second Circuit on his withholding of removal case.”). Due to this
procedural history, Petitioner has been detained for several years. Dkt. 23, at 1.
Nonetheless, 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 (2003) (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 ata 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.” Id. 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. 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 confinement in
immigration detention. See Dkt. 1, at 28-29. 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, Ju.,
4 Petitioner “could not conceivably claim” deprivation of “life or property” on these
facts. See Din, 576 U-S. at 92.
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
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.5
The Constitution protects no such liberty interest. As discussed below, the
Supreme Court’s precedents, including Zaduydas, 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.
° That is fundamentally different from a detention over which Petitioner has no
control.
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)
(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 130 (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.
10
For example, Glucksberg supports this thought process. See, e.g., Dep't of State
uv. Munoz, 602 U.S. 899 (2024). Glucksberg requires—in addition to a “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 720-21
(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. R459 15, 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
a
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
her claim, noting that “procedural due process is an odd vehicle for [her] argument.”
Id. at 919.
11
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
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.” Td.
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. 12138, 1218
12
(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
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.
13
For example, in Zaduydas, 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
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 US. at 528.8 Zadvydas
itself recognized the same distinction. There, the Court distinguished Section 1231
from Section 1226(c) based on the indefiniteness of the detention: “unportantly,” 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, 588 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
7 Zadvydas addressed detention under Section 1231, which governs detention of aliens
subject to final orders of removal.
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).
14
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
point, however, nothing in the statutory text imposes any limit on the length of
detention.” Jd.9
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).
ee
9 It 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.” Id. 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).
15
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 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).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.
10 On June 15, 2026, the Supreme granted certiorari on the issue of whether there isa
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).
16
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, 588 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 (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
17
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).
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
18
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) (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
uv. 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.
19
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
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) (citation
modified).!! But the Supreme Court “has long held that an alien seeking initial
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
20
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) (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
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.
'2 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. 108, 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 1218, 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.
21
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.” Mezei, 345
U.S. at 212 (citation modified). 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’).
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
22
also 8 C.F.R. § 235.3(b)(1)(ii) (same).13 In fact, immigration judges are prohibited by
regulation from holding bond hearings for arriving aliens. See 8 C.F.R. §
1003.19(h)(2)qG)(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 [Section] 1225(b) must end as well.” Id. Until “that point, however,
nothing in the statutory text imposes any limit on the length of detention.” Jd. 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).
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.”
23
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
ee
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,
24
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.
25
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. 11, is granted, and the petition is denied.
The Clerk of Court shall close this case.
SO ORDERED.
Dated: July 23, 2026
Buffalo, New York iy , fi
/ — -
\JOHN. SINATRA, JR.
UNITED STATES DISTRICT JUDGE
26