Mamedova v. Noem et al

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Angelina Mamedova,
Petitioner,
v.
Kristi Noem, et al.,
Respondents.
No. CV-25-04619-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. 11.)
On April 2, 2026, the R&R issued. (Doc. 23.) It concludes that although Petitioner is not
entitled to immediate release from immigration custody, she is entitled to a bond hearing,
such that her amended habeas petition should be granted in part. (Id. at 25.)
Although neither side filed objections to the R&R, the Court retains authority to
reject or modify the recommended disposition. See 28 U.S.C. § 636(b)(1)(C) (“A judge of
the court may accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge.”). See also Thomas v. Arn, 474 U.S. 140,
154 (1985) (“[W]hile the statute does not require the judge to review an issue de novo if
no objections are filed, it does not preclude further review by the district judge, sua sponte
. . . .”); Decker v. Berryhill, 856 F.3d 659, 663 (9th Cir. 2017) (“A district court’s authority
to review a magistrate judge’s [R&R] is not conditioned on a party’s making an
objection.”). With the utmost respect to the Magistrate Judge, the Court concludes this is
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one of those rare instances where rejection of the R&R’s recommended disposition is
warranted despite the absence of objections.
As set forth in the R&R, Petitioner is a citizen of Russia who applied for admission
to the United States in October 2024 at the DeConcini Port of Entry in Nogales, Arizona.
(Doc. 23 at 3.) After being detained and being issued a notice of expedited removal,
Petitioner expressed a fear of returning to Russia and was referred for a credible fear
interview, which she subsequently passed. (Id. at 3-4.) Even so, in March 2025, an
Immigration Judge (“IJ”) denied Petitioner’s claims for asylum, withholding of removal,
and protection under the Convention Against Torture. (Id. at 4.) In July 2025, the Board
of Immigration Appeals (“BIA”) dismissed Petitioner’s appeal. (Id.) In August 2025,
Petitioner filed a timely petition for review with the Ninth Circuit. (Id.) In October 2025,
the Ninth Circuit issued a stay of removal pending appeal. (Id.) In February 2026,
Petitioner’s petition for review became fully briefed. (Id.) Petitioner estimates “it may
take up to three years” from when she filed her petition for review—that is, until August
2028—for the Ninth Circuit to rule. (Id.) Against this backdrop, Petitioner argues that her
“detention has become prolonged” and/or is “excessive, arbitrary and punitive in violation
of the Due Process Clause.” (Id. at 5.)
As the R&R correctly notes, Petitioner’s continued detention under these
circumstances is statutorily mandated, as 8 U.S.C. § 1225(b)(1)(B)(ii) provides that an
alien who is placed in expedited removal proceedings but expresses a credible fear of
persecution “shall be detained for further consideration of the application for asylum.”
(Doc. 23 at 8.) The disputed issue is whether this statutorily mandated civil detention is
nevertheless unconstitutional, at least as applied to Petitioner.
In Ibarra-Perez v. Howard, 468 F. Supp. 3d 1156 (D. Ariz. 2020), this Court
addressed a similar issue. There, an alien who was “taken into DHS custody” in January
2020 and “detained under 8 U.S.C § 1225(b)” filed a habeas petition arguing, inter alia,
that “his prolonged detention without a custody redetermination hearing violates the Due
Process Clause of the Fifth Amendment.” Id. at 1160-61. The Court disagreed and denied
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the habeas petition. After canvassing the relevant Ninth Circuit and Supreme Court
authorities, the Court stated:
[I]t is permissible under 8 U.S.C. § 1225(b) to detain an arriving alien who
has expressed a credible fear of persecution and/or who is subject to removal
because he is not clearly entitled to admission. As for how long such
detention may last, although the Ninth Circuit suggested in Rodriguez II
[Rodriguez v. Robbins, 715 F.3d 1127 (9th Cir. 2013)] and Rodriguez III
[Rodriguez v. Robbins, 804 F.3d 1060 (9th Cir. 2015)] that prolonged
detention under § 1225(b) would raise constitutional concerns when applied
to a specific subgroup of arriving aliens—namely, LPRs [lawful permanent
residents] who previously resided in the United States—it did not question
the constitutionality of the prolonged detention of arriving aliens in
Petitioner’s circumstances. Instead, it seemed to reaffirm that, under
[Barrera-Echavarria v. Rison, 44 F.3d 1441 (9th Cir. 1995) (en banc)], such
detention is constitutionally permissible while an asylum/removal
proceeding is pending. Nor has the Ninth Circuit issued any [subsequent]
decisions that overrule those earlier holdings.
Id. at 1175-76 (cleaned up). Later, the Court added:
[T]he Court must do its best to discern and apply the law of the Ninth Circuit
as it currently stands. As discussed, Barrera-Echavarria suggests it is
constitutionally permissible to require Petitioner to remain in custody for the
duration of his removal proceeding. If anything, the Ninth Circuit seemed to
ratify that understanding of Barrera-Echavarria in Rodriguez II and
Rodriguez III. And neither the Supreme Court’s decision in [Jennings v.
Rodriguez, 583 U.S. 281 (2018)] nor the Ninth Circuit’s remand order in
Rodriguez V [Rodriguez v. Marin, 909 F.3d 252 (9th Cir. 2018)] casts any
doubt upon the continued validity of those portions of Barrera-Echavarria,
Rodriguez II, and Rodriguez III. Thus, . . . Petitioner is not entitled to a bond
hearing under current Ninth Circuit law.
Id. at 1177 (cleaned up).
In reaching this conclusion, the Court acknowledged that some district courts—
including the court in Banda v. McAleenan, 385 F. Supp. 3d 1099 (W.D. Wash. 2019)—
had come out the other way and concluded that aliens being detained under § 1225(b) may,
at least after a certain period of time in immigration custody, be entitled as a matter of due
process to a bond hearing. Id. at 1177. But the Court identified reasons why it respectfully
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disagreed with those decisions, including that they “did not cite or discuss Barrera-
Echavarria, the ‘entry fiction,’ or the portions of Rodriguez II and Rodriguez III that seem
to adopt Barrera-Echavarria’s logic as it pertains to arriving aliens who are detained under
§ 1225(b) and are subject to the entry fiction.” Id. at 1177 n.25.1 Finally, the Court
emphasized that its denial of habeas relief was “not an approval of indefinite detention.
The statute under which Petitioner is being detained authorizes his detention only ‘until
specified events take place,’ i.e., until the resolution of the current removal proceeding.
And if Petitioner’s removal ceases to become reasonably foreseeable, Petitioner will have
other potential avenues for seeking release.” Id. (citation omitted).
Two days after Ibarra-Perez was decided, the Supreme Court decided Department
of Homeland Security v. Thuraissigiam, 591 U.S. 103 (2020). There, an alien apprehended
near the border was “detained . . . for expedited removal” pursuant to § 1225(b). Id. at 114.
After an IJ found that the alien lacked a credible fear of persecution and denied his asylum
claim, the alien filed a habeas petition seeking to challenge, on various grounds, the
unfavorable credible-fear determination. Id. at 114-15. The disputed issue in
1 Likewise, to the extent the R&R concludes that “the entry fiction doctrine is
inapplicable to challenges [to] a petitioner’s length of detention” because it “applies to
admissions, not as-applied constitutional challenges based on length of detention” (Doc.
23 at 2, 11), the Court respectfully disagrees. In Shaughnessy v. United States ex rel. Mezei,
345 U.S. 206 (1953), the Supreme Court invoked the entry fiction as one reason for
concluding that the habeas petitioner in that case—an alien who had been detained on Ellis
Island for more three years upon attempting to enter the country—did not have a
constitutional right to a bond hearing. Id. at 215-16 (concluding that “we do not think that
[the petitioner’s] continued exclusion deprives him of any statutory or constitutional right”
in part because “he is treated as if stopped at the border,” and contrasting the petitioner’s
situation with that of “resident aliens temporarily detained pending expeditious
consummation of deportation proceedings”). See also Barrera-Echavarria, 44 F.3d at
1449-50 (“Barrera argues that Mezei is inapposite because it involved only the legality of
continued exclusion under the special provisions of the Passport Act, and not the legality
of Mezei’s detention. This interpretation, however, is incorrect: while the Court spoke in
terms of exclusion, its holding necessarily included a determination that Mezei’s detention
was legal as well.”) (citation omitted); Palma v. Arteta, 2026 WL 697015, *11-12
(S.D.N.Y. 2026) (“[T]he entry distinction applies with full force in challenges to a non-
entered alien’s detention. Mezei, after all, involved a non-entered alien who sought release
from detention on bond, and the Supreme Court rejected his challenge because he was ‘an
alien on the threshold of initial entry.’ It makes little sense to distinguish the Government’s
power with respect to a non-entered alien’s ‘application for admission’ from its power with
respect to such an alien’s detention. The power to exclude and the power to detain pending
exclusion go hand in hand.”) (cleaned up).
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Thuraissigiam was the constitutionality of a statutory provision barring judicial review of
such claims—the Ninth Circuit held this provision was unconstitutional but the Supreme
Court reversed, explaining that “[w]hile aliens who have established connections in this
country have due process rights in deportation proceedings, the Court long ago held that
Congress is entitled to set the conditions for an alien’s lawful entry into this country and
that, as a result, an alien at the threshold of initial entry cannot claim any greater rights
under the Due Process Clause. [Petitioner] attempted to enter the country illegally and was
apprehended just 25 yards from the border. He therefore has no entitlement to procedural
[due process] rights other than those afforded by statute.” Id. at 107.
In the Court’s view, Thuraissigiam underscores the conclusion reached in Ibarra-
Perez. Indeed, “[w]hile Thuraissigiam was decided in the admission context, it cited and
reaffirmed the continuing vitality of Mezei, which addressed the issue of detention.”
Gonzales Garcia v. Rosen, 513 F. Supp. 3d 329, 333 (W.D.N.Y. 2021). Accordingly, since
Thuraissigiam was decided, many district courts—albeit not all (and perhaps not even
most) district courts—have concluded that an arriving alien subject to statutorily mandated
detention under §§ 1225(b)(1) or 1225(b)(2) does not have a constitutional right to a bond
hearing. See, e.g., Korneva v. Rokosky, 2026 WL 851591, *1 (D. Ariz. 2026); Palma v.
Arteta, 2026 WL 697015, *11-12 (S.D.N.Y. 2026); Leon Alcazar v. Cantu, 2025 WL
2548698, *12-14 (D. Ariz. 2025), adopted by 2025 WL 2304357 (D. Ariz. 2025);
Mendoza-Linares v. Garland, 2024 WL 3316306, *2 (S.D. Cal. 2024); Petgrave v. Aleman,
529 F. Supp. 3d 665, 676-79 (S.D. Tex. 2021); Gonzales Garcia, 513 F. Supp. 3d at 336.
See generally Doe v. Bondi, 2025 WL 3516292, *5-6 (D. Colo. 2025) (surveying the
relevant authorities, noting that “[s]ome courts have held that, at some point, due process
requires a noncitizen subject to prolonged detention under Section 1225(b) be given an
individualized bond hearing before an immigration judge . . . [b]ut other courts have held
that due process imposes no time limit or hearing requirement when an alien is subject to
mandatory detention under Section 1225(b) while removal proceedings are pending,” and
concluding that “procedural due process does not afford inadmissible arriving aliens
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subject to prolonged detention a right to release or a bond hearing prior to the conclusion
of removal proceedings”). Having carefully considered the latest authorities on this topic,
as well as the R&R’s analysis and the parties’ arguments, and acknowledging the existence
of a split in authority on the issue, the Court still concludes there is no constitutional right
to a bond hearing in this context. This conclusion is also consistent with the Ninth Circuit’s
recent observation that, “after the Supreme Court’s decisions in Jennings and [Johnson v.
Arteaga-Martinez, 596 U.S. 573 (2022)], it remains undetermined whether the Due Process
Clause requires additional bond procedures under any immigration detention statute.”
Rodriguez Diaz v. Garland, 53 F.4th 1189, 1201 (9th Cir. 2022).
Nor does this case fall within either of the potential exceptions identified in Ibarra-
Perez. First, this is not a situation involving “indefinite” detention because the duration of
Petitioner’s detention has a known endpoint that is subject to external constraints—namely,
the conclusion of her pending Ninth Circuit case. Cf. Prieto-Romero v. Clark, 534 F.3d
1053, 1064-65 (9th Cir. 2008) (rejecting prolonged detention claim where the delay in
removal was caused by the petitioner’s request for “[j]udicial review, [which] unlike the
administrative process the government invoked in [a different case], is subject to strict
procedural rules” that serve as an “independent, external constraint” and provide
“satisfactory assurance that [the process] will be resolved with reasonable expedition”)
(cleaned up). Second, Petitioner has not established that her removal has ceased being
“reasonably foreseeable.” That exception is sometimes invoked when an alien has been
granted withholding of removal from her home country and the government has not
established a reasonable likelihood of removal to a third country. See, e.g., Chen v. Noem,
2026 WL 962606, *2 (D. Ariz. 2026) (granting habeas petition filed by Chinese detainee
where “China will not be considered as a removal destination (due to the withholding
order),” “all third-party states have refused to accept her as a deportee,” and “Respondents
indicate[d] they are no longer even responsible for attempting to identify a potential third
country to which Petitioner might be removed”) (cleaned up). But here, Petitioner has not
been granted withholding of removal to her home country or otherwise attempted to show
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why such removal is unforeseeable.
Accordingly,
IT IS ORDERED that:
1. The R&R’s recommended disposition (Doc. 23) is accepted in part and
rejected in part.
2. The amended habeas petition (Doc. 4) is denied.
3. The Clerk shall enter judgment accordingly and terminate this action.
Dated this 28th day of April, 2026.
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