Nurbekov v. Rivas et al

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Elzhigit Nurbekov,
Petitioner,
v.
David R Rivas, et al.,
Respondents.
No. CV-25-04353-PHX-DWL
ORDER
This is a habeas corpus proceeding under 28 U.S.C. § 2241 that was referred to a
magistrate judge for the preparation of a report and recommendation (“R&R”). (Doc. 4.)
Following the referral, Petitioner also filed a motion for a temporary restraining order
(“TRO”). (Doc. 14.) On April 8, 2026, the R&R issued. (Doc. 18.) It concludes that the
habeas petition, as well as Petitioner’s motion for a TRO, should be denied. (Id.) Petitioner
has now filed objections to the R&R. (Doc. 19.)
Petitioner’s objections implicate 28 U.S.C. § 636(b)(1), which provides that when,
as here, a magistrate judge has issued an R&R regarding a dispositive matter and a party
has thereafter filed timely written objections, “[a] judge of the court shall make a de novo
determination of those portions of the [R&R] or specified proposed findings or
recommendations to which objection is made. A judge of the court may accept, reject, or
modify, in whole or in part, the findings or recommendations made by the magistrate judge.
The judge may also receive further evidence or recommit the matter to the magistrate judge
with instructions.” 28 U.S.C. § 636(b)(1). See also Fed. R. Civ. P. 72(b)(2)-(3). As the
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Ninth Circuit has explained, “[i]n providing for a de novo determination . . . Congress
intended to permit whatever reliance a district judge, in the exercise of sound judicial
discretion, chose to place on a magistrate’s proposed findings and recommendations. . . .
[D]istrict courts conduct proper de novo review where they state they have done so, even
if the order fails to specifically address a party’s objections.” United States v. Ramos, 65
F.4th 427, 433 (9th Cir. 2023) (cleaned up). See also id. at 434 (“[T]he district court ha[s]
no obligation to provide individualized analysis of each objection.”). Additionally, district
courts are not required to review any portion of an R&R to which no specific objection has
been made. See, e.g., Thomas v. Arn, 474 U.S. 140, 149-50 (1985) (“It does not appear
that Congress intended to require district court review of a magistrate’s factual or legal
conclusions, under a de novo or any other standard, when neither party objects to those
findings.”); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (“[T]he
district judge must review the magistrate judge’s findings and recommendations de novo
if objection is made, but not otherwise.”). Thus, district judges need not review an
objection to an R&R that is general and non-specific. See, e.g., Warling v. Ryan, 2013 WL
5276367, *2 (D. Ariz. 2013) (“Because de novo review of an entire R & R would defeat
the efficiencies intended by Congress, a general objection ‘has the same effect as would a
failure to object.’”) (citations omitted).
The Court has performed a de novo review of the R&R and agrees with its
conclusion that the habeas petition and TRO motion should be denied.1 Petitioner was
taken into immigration custody in November 2024, as he applied for admission at the
border, and has remained in immigration custody since that time while pursuing a claim of
1 Although Petitioner raises objections to certain factual statements and alleged
omissions in the R&R (Doc. 19 at 2-3), the outcome here does not turn on those disputed
facts. Nor is there any merit to Petitioner’s contention (Doc. 19 at 3-5) that Respondents
should be deemed to have waived or forfeited the grounds for denying relief identified in
the R&R. Among other things, Respondents’ response brief asserted that “Petitioner is not
entitled to any procedure beyond that which is prescribed by statute” and cited Shaughnessy
v. United States ex rel. Mezei, 345 U.S. 206 (1953), which is one of the cases on which the
R&R relies. (Doc. 11 at 2 n.2, 4.) At any rate, courts “have discretion to overlook forfeiture
in exceptional cases including when the issue presented is purely one of law.” United
States v. Valle, 940 F.3d 473, 480 n.7 (9th Cir. 2019). Such is the case here.
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asylum. (Doc. 18 at 1-2.) At issue is whether Petitioner has a constitutional right to a bond
hearing during the pendency of his removal proceeding. (Doc. 12 at 4 [“Petitioner is not
arguing a statutory right to release, or a right to a periodic bond hearing. Rather, his claim
is based in that basic notions of due process compel the conclusion that an unreasonably
prolonged detention under 8 U.S.C. § 1225(b) without an individualized bond hearing
violates due process.”].) The R&R acknowledges that some “district judges in the Ninth
Circuit” have found a constitutional right to a bond hearing in this circumstance but notes
that “at least some judges in this District”—including the undersigned in Ibarra-Perez v.
Howard, 468 F. Supp. 3d 1156 (D. Ariz. 2020)—have determined otherwise. (Doc. 18 at
8-9.) The R&R “concludes that Petitioner has no due process right to release on any basis
from his current detention under § 1225(b), except as provided by Congress.” (Id. at 9.)
The Court agrees with that conclusion for the reasons stated in the R&R, in Ibarra-Perez,
and in two other recent decisions addressing the same issue. Mamedova v. Noem, 2026
WL 1162282 (D. Ariz. 2026); Savin v. Rivas, 2026 WL 1162384 (D. Ariz. 2026).
Finally, to the extent Petitioner contends in his objections to the R&R that he is
pursuing an independent due process claim based on Respondents’ failure to adjudicate his
parole requests (Doc. 19 at 2, 4), no such claim is fairly raised in the habeas petition, which
only mentions the unresolved parole requests in passing (Doc. 1 ¶¶ 17, 25-26) and clarifies
that “[t]he sole issue here is whether unreasonably prolonged detention under § 1225(b)
without a bond hearing violates due process.” (Id. ¶ 37. See also Doc. 14 at 2 [TRO
motion: “Mr. Nurbekov has acknowledged his detention under 8 U.S.C. 1225(b). The sole
issue here is whether unreasonably prolonged detention under 8 U.S.C §1225(b) without a
bond hearing violates due process.”].)
…
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Accordingly,
IT IS ORDERED that:
1. The R&R (Doc. 18) is accepted.
2. The § 2241 petition (Doc. 1) is denied.
3. Petitioner’s motion for TRO (Doc. 14) is denied.
4. The Clerk shall enter judgment accordingly and terminate this action.
Dated this 12th day of May, 2026.
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