Chekiev v. Unknown Party et al

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UNITED STATES DISTRICT COURT
DISTRICT OF ARIZONA
Aktanbek Chekiev,
Petitioner
-vs-
Unknown Party, et al.,
Respondents.
CV-26-1235-PHX-DJH (JFM)
Report & Recommendation
on Petition for Writ of Habeas Corpus
I. MATTER UNDER CONSIDERATION
Petitioner has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. §
2241 (Doc. 1). The Petitioner's Petition is now ripe for consideration. Accordingly, the
undersigned makes the following proposed findings of fact, report, and recommendation
pursuant to Rule 8(b), Rules Governing Section 2254 Cases, Rule 72(b), Federal Rules of
Civil Procedure, 28 U.S.C. § 636(b) and Rule 72.2(a)(2), Local Rules of Civil Procedure.
II. RELEVANT FACTUAL & PROCEDURAL BACKGROUND
A. FACTUAL AND PROCEDURAL BACKGROUND
The operative facts in this case are undisputed, if largely undocumented. (See
Petition at ¶¶ 1-4, 12-13, 19-22; Response at 1 and Exh. A (Not. Appear.).) Petitioner, a
native and citizen of Kyrgyzstan, Petitioner presented himself at the Hidalgo, Texas port
of entry. The Department of Homeland Security (DHS) classified him as an “arriving
alien.” On July 31, 2023 Petitioner was placed in removal proceedings, but was released
into the United States and ordered to appear before an immigration judge in Chicago,
Illinois on April 27, 2026. Petitioner obtained a work permit and was employed in the
United States as a truck driver. He has no criminal history.
Petitioner applied for asylum, withholding of removal and protection under the
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Convention Against Torture, all of which were denied.
At some unidentified point prior to January 3, 2025, Petitioner was re-detained
without a bond hearing, and is in the custody of Immigration and Customs Enforcement
(ICE) at the Florence Processing Center in Florence, Arizona. His requests for parole on
January 3, 2025 and June 3, 2025 have been denied, the latter on the basis of “ICE
discretion.”
On November 24, 2025, the Immigration Judge (IJ) denied Petitioner’s asylum
applications and the Petitioner subsequently appealed this decision to the Board of
Immigration Appeals (BIA) which remains pending. Doc. 1 at ¶ 21. Currently, Petitioner
is being held at the Florence Service Processing Center. Id. at ¶ 22.
B. PRESENT FEDERAL HABEAS PROCEEDINGS
Petition – Petitioner commenced the current case by filing through counsel his
Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 on February 21, 2026
(Doc. 1). Petitioner asserts his detention is pursuant to 8 U.S.C. § 1226(b). (Petition at ¶
10.) Petitioner further “claims his prolonged detention violates his Fifth Amendment due
process rights and he is entitled to immediate release or a custody redetermination
hearing.” (Order 2/24/26, Doc. 3 at 1.) Petitioner’s assertion of entitlement to Due Process
Clause protection of his liberty interests is founded upon Zadvydas v. Davis, 533 U.S. 678,
690 (2001), Reno v. Flores, 507 U.S. 292, 306 (1993), Wong Wing v. United States, 163
U.S. 228, 237-38 (1896), and Jones v. Blanas, 393 F.3d 918, 932 (9th Cir. 2004). (Petition
at ¶ 24-26.)
Response - On March 12, 2026, Respondents filed their Answer (“Response”)
(Doc. 10). Respondents1 argue: (1) Zadvydas dealt only with post-removal order detention
1 Respondents argue Respondent Warden Rosa is the only proper habeas respondent. The
undersigned does not address Respondents’ argument because: (1) Respondents concede
that the proper respondent has been joined; (2) the undersigned find the Petition to be
without merit, effectively mooting the issue; and (3) the Service Order directed service on
all of the Respondents, at least suggesting a finding by the District Judge that they were
proper respondents.
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and is inapplicable; (2) Petitioner is subject to the mandatory detention under 28 U.S.C. §
1225(b); (3) despite his (now terminated) parole Petitioner remains an “arriving alien”; (4)
arriving aliens like Petitioner have no due process right to release, citing Jennings v.
Rodriguez, 583 U.S. 281, 300–01,305–06 (2018), Dep’t of Homeland Sec. v.
Thuraissigiam, 591 103, 139 (2022), Shaughnessy v. United States ex rel. Mezei, 345 U.S.
206, 215 (1953) (herein Mezei), and Leng May Ma v. Barber, 357 U.S. 185, 187 (1958).2
Reply – No reply has been filed. Petitioner had 30 days from the filing of the
Response, or until April 13, 2026 to file a reply. However, on March 29, 2026, Petitioner
filed a Motion for Expedited Ruling (Doc. 14). The Court deemed the motion as a waiver
of the right to reply, and granted the motion for expedited ruling. (Order 3/30/26 Doc.
15.)
III. APPLICATION OF LAW TO FACTS
A. PETITIONER PROPERLY DETAINED UNDER § 1225(B)
In asserting proper venue, Petitioner asserts he is detained pursuant to 28 U.S.C. §
1226(b). (Petition at ¶ 10.) Respondents assert Petitioner is detained pursuant to 28 U.S.C.
§ 1225(b)(2)(A). (Response at 2/21.) Neither side provides any evidence to reflect ICE’s
originally asserted basis for detention. The undersigned finds no reason to conclude that
Respondents cannot now properly rely upon whatever statute is properly applicable.
Title 8 contains five primary statutes governing the detention of alien immigrants:
- § 1225 covers aliens seeking admission (either because they qualify, or based
on a request for asylum);
- although § 1225 does not provide for release, § 1182(d)(5) gives the Secretary
of Homeland Security discretion, “on a case-by-case basis for urgent
humanitarian reasons or significant public benefit” to parole into the country
2 Because Petitioner has not asserted a right to review of the termination of his previously
granted parole, the undersigned does not address Respondents’ arguments that arriving
aliens have no due process right to maintain grants of parole, citing Kwai Fun Wong v.
Immigr. & Naturalization Serv., 373 F.3d 952, 968 (9th Cir. 2004), abrogated on other
grounds, Pettibone v. Russell, 59 F.4th 449, 452-53 (9th Cir. 2023), and that under 8
U.S.C. § 1252(a)(2)(B)(ii) the Court lacks jurisdiction to undertake such review.
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aliens seeking admission;
- § 1226 covers admitted aliens during removal proceedings (with provisions for
release for some aliens) for whom the Attorney General has issued a warrant of
arrest, and provides for consideration of release on bond or other conditions;3
and
- § 1231 covers aliens ordered removed.
In Casas-Castrillon v. DHS, 535 F.3d 941 (9th Cir. 2008), the court observed that
Athe Attorney General's authority over an alien's detention shifts as the alien moves through
different phases of administrative and judicial review.@ Id. at 945. Generally these phases
include the period before there is a final removal order, a post-removal-order “removal
period,” and subsequent thereto.
Because Petitioner has apparently not been given a final order of removal, § 1231
is not applicable. Thus, to be authorized, Petitioner’s current detention must be under §
1225 or § 1226.
Which applies is of particular moment because any parole from detention under §
1225 arises only under § 1182(d)(5) under the discretion of the Secretary. Conversely, if
an alien is detained under § 1226, that detention is subject to the Attorney General’s
discretion to release the alien on bond or conditions, and the applicable regulations provide
a process for the alien to seek the exercise of that discretion, and administrative appeal
thereof. See 8 C.F.R. § 236.1(c) and (d).
In Jennings v. Rodriguez, 583 U.S. 281, 294 (2018), the Court summarized the pre-
removal detention statutes:
In sum, U.S. immigration law authorizes the Government to detain
certain aliens seeking admission into the country under §§ 1225(b)(1)
and (b)(2). It also authorizes the Government to detain certain aliens
already in the country pending the outcome of removal proceedings
under §§ 1226(a) and (c).
3 8 U.S.C. § 1226(c) makes detention mandatory and denies release to deportable aliens
with certain criminal convictions. Because there is no suggestion that Petitioner has such
convictions, the undersigned does not further discuss the application of these provisions
to Petitioner.
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583 U.S. at 289. The Court described the circumstances triggering detention under §
1225:
That process of [deciding who may enter and/or stay in the
country] generally begins at the Nation's borders and ports of entry,
where the Government must determine whether an alien seeking to
enter the country is admissible. Under [ ] 8 U.S.C. § 1225, an alien
who “arrives in the United States,” or “is present” in this country but
“has not been admitted,” is treated as “an applicant for admission.” §
1225(a)(1). Applicants for admission must “be inspected by
immigration officers” to ensure that they may be admitted into the
country consistent with U.S. immigration law. § 1225(a)(3).
As relevant here, applicants for admission fall into one of two
categories, those covered by § 1225(b)(1) and those covered by §
1225(b)(2).
* * *
Regardless of which of those two sections authorizes their
detention, applicants for admission may be temporarily released on
parole “for urgent humanitarian reasons or significant public benefit.”
§ 1182(d)(5)(A); see also 8 C.F.R §§ 212.5(b), 235.3 (2017). Such
parole, however, “shall not be regarded as an admission of the alien.”
8 U.S.C. § 1182(d)(5)(A). Instead, when the purpose of the parole has
been served, “the alien shall forthwith return or be returned to the
custody from which he was paroled and thereafter his case shall
continue to be dealt with in the same manner as that of any other
applicant for admission to the United States.” Ibid.
Jennings, 583 U.S. at 287-288.
Here, Petitioner is an applicant for admission who has never effected an entry into
the country, despite his temporary parole into the country. Thus Petitioner is properly
detained pursuant to 28 U.S.C. § 1225 and his sole statutory basis for release is under the
discretionary release under § 1182(d)(5).
It would be reasonable for a layman to assume the status of being “inside the United
States” extends to anyone not physically standing at the border, or detained in an
immigration lockup awaiting admission or removal. But that proposition was rejected
long ago. In Leng May Ma v. Barber, 357 U.S. 185 (1958) the Court addressed the status
of an alien paroled into the country pending determination of her admissibility.
It is important to note at the outset that our immigration laws have
long made a distinction between those aliens who have come to our
shores seeking admission, such as petitioner, and those who are
within the United States after an entry, irrespective of its legality. In
the latter instance the Court has recognized additional rights and
privileges not extended to those in the former category who are
merely ‘on the threshold of initial entry.’
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Id. at 187 (citations omitted). The Court addressed the status of the two different groups.
For over a half century this Court has held that the detention of an
alien in custody pending determination of his admissibility does not
legally constitute an entry though the alien is physically within the
United States. It seems quite clear that an alien so confined would not
be ‘within the United States' for purposes of s 243(h)…Our question
is whether the granting of temporary parole somehow effects a
change in the alien's legal status. In s 212(d)(5) of the Act [8 U.S.C.
§ 1182(d)(5)…the Congress specifically provided that parole ‘shall
not be regarded as an admission of the alien,’ and that after the return
to custody the alien's case ‘shall continue to be dealt with in the same
manner as that of any other applicant for admission to the United
States.'
Ma, 357 U.S. at 188.
Moreover, the Court found not only that a paroled alien was not “admitted,” they
were not even “within the United States.” Id. at 189. The Court described a grant of parole
as simply having one’s “prison bounds…enlarged” beyond the port of entry, and
concluded that Ma “was still in theory of law at the boundary line and had gained no
foothold in the United State[s].” Id. Thus, despite his parole away from the port of entry,
Petitioner has remained “at the boundary line” and not “in” the United States.
Accordingly, he is properly detained under § 1225(b).
B. DUE PROCESS RIGHTS SET BY CONGRESS
Petitioner asserts that even if properly detained under the statutes he has a
constitutional due process right to release, or at least a chance for release in a bond hearing
considering the risks of his release (e.g. of criminal activity or flight). He asserts this Court
should apply the general standard for evaluating due process claims under Mathews v.
Eldridge, 424 U.S. 319 (1976) (balancing individual’s liberty interest, risk of erroneous
deprivation, and government’s interests).
Petitioner’s argument presumes he is entitled to the ordinary protections of the Due
Process Clause. The Supreme Court says he is not.
The Court has long treated aliens seeking admission differently. In Nishimura Ekiu
v. United States, the Court was concerned with determining whether “foreigners who have
never been naturalized…shall be permitted to enter,” and concluded that actions of the
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executive “within powers expressly conferred by congress, are due process of law.” 142
U.S. 651, 660 (1892). In U.S. ex rel. Knauff v. Shaughnessy, the Court was concerned
with “the decision to admit or to exclude an alien” when it declared “[w]hatever the
procedure authorized by Congress is, it is due process as far as an alien denied entry is
concerned.” 338 U.S. 537, 543-44 (1950). In Landon v. Plasencia, the Court recognized:
“This Court has long held that an alien seeking initial admission to the United States
requests a privilege and has no constitutional rights regarding his application, for the
power to admit or exclude aliens is a sovereign prerogative.” 459 U.S. 21, 32 (1982).
More relevant to Petitioner’s claim for relief from detention, in Shaughnessy v.
United States ex rel. Mezei, the petitioning alien had (after a period of residence) left the
United States and spent 19 months “behind the iron curtain” before attempting to return to
the U.S. The Court found he was not challenging his exclusion, just his continued
detention on Ellis Island because other countries would not take him. 345 U.S. 206, 207
(1953). The Mezei Court quoted a 1950 case for the proposition that while aliens who had
already “passed through our gates, even illegally, may be expelled only after proceedings
conforming to traditional standards of fairness encompassed in due process of law...But
an alien on the threshold of initial entry stands on a different footing: ‘Whatever the
procedure authorized by Congress is, it is due process as far as an alien denied entry to the
country is concerned.’” Mezei, 345 U.S. at 212 (quoting U.S. ex rel. Knauff v.
Shaughnessy, 338 U.S. 537, 544 (1950)). The Court went on to determine whether Mezei
could be detained indefinitely on Ellis Island, concluding that Mezei was not deprived of
“any statutory or constitutional right.” 345 U.S. at 215-216.
Although Mezei is an old decision, it remains the law of the land. For example, in
Zadvydas, the Court distinguished Mezei in finding a right to a detention hearing for aliens
post-removal order. The Court discussed Mezei’s status as an “arriving alien” deemed
“stopped at the border.” Zadvydas, 533 U.S. at 693-694 (“this Court's …rejection of his
challenge to continued detention rested upon a basic territorial distinction,” i.e. his
detention on Ellis Island was not a “landing”) (citing Mezei, 345 U.S. at 215). See also Xi
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v. U.S. I.N.S., 298 F.3d 832, 837 (9th Cir. 2002) (recognizing Mezei describes due process
rights of arriving aliens regarding detention, but finding Zadvydas’s constitutional
construction of § 1231(a)(6) to apply to all post-removal order aliens, including arriving
aliens).
And, in Dep't of Homeland Sec. v. Thuraissigiam, the Supreme Court discussed the
due process rights of arriving aliens seeking admission. “[A]s 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.’”591 U.S. 103, 138 (2020) (quoting Nishimura Ekiu v. U.S., 142 U.S. 651,
660 (1892)). It is true that the facts of Thuraissigiam were limited to a challenge to the
admission decision, and were so disconnected from detention that the Thuraissigiam court
found no basis for habeas jurisdiction, and the decision contains no language extending its
holding beyond the admission decision. However, the Court’s analysis is a demonstration
of the enduring authority of Mezei.
Respondents cite Jennings v. Rodriguez, 583 U.S. 281, 300–01,305–06 (2018) for
the proposition that Petitioner has no constitutional right to release. However, Jennings
decided only whether the detention provisions in §§ 1225 and 1226 could be construed,
as a matter of constitutional avoidance, to provide for bond. The Court explicitly declined
to address the underlying constitutional issue.
Thus, under Mezei, Petitioner’s rights to release are limited to those provided by
Congress, i.e. discretionary release under § 1182(d)(5).
C. NO CONTROLLING AUTHORITY TO THE CONTRARY
The cases cited by Petitioner do not alter this analysis.
Petitioner cites Zadvydas v. Davis, 533 U.S. 678, 690 (2001). However, in
Zadvydas, the Court distinguished Mezei in finding a right to a detention hearing for aliens
post-removal order. The Court discussed Mezei’s status as an “arriving alien” deemed
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“stopped at the border.” Zadvydas, 533 U.S. at 693-694 (“this Court's …rejection of his
challenge to continued detention rested upon a basic territorial distinction,” i.e. his
detention on Ellis Island was not a “landing”) (citing Mezei, 345 U.S. at 215). With that
distinction in mind, the Zadvydas Court held that for deportable aliens, who had effected
an entry, post-removal order detention without a bond hearing was limited, and created a
six month window in which continued detention was presumptively constitution. In Xi v.
U.S. I.N.S., 298 F.3d 832, 837 (9th Cir. 2002), the Ninth Circuit recognized Mezei
describes the limits of due process rights of arriving aliens regarding detention, but found
Zadvydas’s constitutional construction of § 1231(a)(6) to apply to all post-removal order
aliens, including arriving aliens.
Of course, here, Petitioner is not being detained post-removal order pursuant to §
1231(a)(6). Rather, his removal is still being adjudicated administratively before the BIA.
Thus his current detention is pursuant to 8 U.S.C. § 1225(b). Accordingly, the statutory
provision construed by Zadvydas, and applied in Xi, has no application to Petitioner.
Indeed, in Jennings the Court declined to extend Zadvydas to an inadmissible alien,
because: (1) detention under § 1225(b) has a definite term (completion of proceedings);
(2) the detention is statutorily mandated, rather than permissive, and thus not ambiguous;
and (3) unlike § 1231(a)(6) detention, detention under § 1225(b) is subject to exceptions,
namely § 1182(b)(5). Jennings, 583 U.S. at 299-301. (The Jennings Court reached similar
conclusions with respect to detention under § 1226. Id. at 303-306.) Thus the Court found
no opportunity to apply the constitutional avoidance canon employed in Zadvydas.
Petitioner cites to Reno v. Flores, 507 U.S. 292, 306 (1993). Bur Reno dealt with
the due process of juvenile aliens who had been arrested on suspicion of being deportable
aliens. Id. at 294-295. Moreover, Reno engaged in no discussion of Mezei or the
restriction on due process rights of excludable aliens like Petitioner.
Similarly, Petitioner’s citation to Wong Wing v. United States, 163 U.S. 228, 237-
38 (1896) is unavailing because that case predated the 1950 holding in Mezei. Moreover,
there the Court was plainly concerned with those already domiciled in the country, not
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those, like Petitioner, “stopped at the border.”
The term ‘person,’ used in the fifth amendment, is broad enough to
include any and every human being within the jurisdiction of the
republic. A resident, alien born, is entitled to the same protection
under the laws that a citizen is entitled to. He owes obedience to the
laws of the country in which he is domiciled, and, as a consequence,
he is entitled to the equal protection of those laws.
Wong Wing, 163 U.S. at 242.
Finally, Petitioner cites to Jones v. Blanas, 393 F.3d 918, 932 (9th Cir. 2004) for
the proposition that civil detainees ““cannot be subjected to conditions that ‘amount to
punishment.’” But Petitioner proffers nothing to show that the conditions of his detention
extend beyond the legitimate purposes of his immigration detention, i.e. “[l]egitimate, non-
punitive government interests include ensuring a detainee's presence at trial, maintaining
jail security, and effective management of a detention facility.” 393 F.3d at 932.
At most, Petitioner makes the conclusory assertion he is detained in “a detention
center that could lead to his death.” (Petition at ¶ 28.) But he offers no facts or evidence
to support that contention.
The undersigned is aware that other district judges in the Ninth Circuit have
reached different conclusions. See Avakian v. Cantu, CV-26-00104-PHX-SHD-CDB,
Report and Recommendation, Doc. 17 at 18-19 (D.Ariz. 2026), adopted 2026 WL 746351,
at *2 (D. Ariz. Mar. 17, 2026) (detailing cases).
But at least some judges in this District have found no due process limitation on
detention under § 1225(b). See e.g. Ibarra-Perez v. Howard, CV-20-0739-PHX-DWL,
468 F. Supp. 3d 1156, 1177 (D. Ariz. 2020) (finding no limitation on detention of
admission-seeking alien during removal proceedings); Munoz v. Bondi, CV-25-02951-
PHX-MTL, 2026 WL 380610, at *1 (D. Ariz. Feb. 11, 2026) (same, citing Thuraissigiam’s
reference to rights limited to those provided by statute); Korneva v. Rokosky, CV-26-
01505-PHX-MTL, 2026 WL 851591, at *1 (D. Ariz. Mar. 11, 2026) (same). Cf. Avakian
v. Cantu, CV-26-00104-PHX-SHD, 2026 WL 746351, at *2 (D. Ariz. Mar. 17, 2026)
(finding opposition to claim of due process violation from prolonged detention under §
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1225(b) waived by failure to raise in response).
D. CONCLUSION
Accordingly, the undesigned concludes that Petitioner has no due process right to
release from his current detention under § 1225(b),4 except as provided by Congress, e.g.
under 8 U.S.C. § 1182(d)(5). Thus, the Court need not consider the application of the
Matthews factors or other due process analyses, to determine whether the facts of
Petitioner’s case justify release. Therefore, the Petition must be denied.
IV. RECOMMENDATION
IT IS THEREFORE RECOMMENDED Petitioner's Petition for Writ of Habeas
Corpus (Doc. 1) be DENIED.
V. EFFECT OF RECOMMENDATION
This recommendation is not an order that is immediately appealable to the Ninth
Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of
Appellate Procedure, should not be filed until entry of the district court's judgment.
However, pursuant to Rule 72(b), Federal Rules of Civil Procedure, the parties shall
have fourteen (14) days from the date of service of a copy of this recommendation within
which to file specific written objections with the Court. See also Rule 8(b), Rules
Governing Section 2254 Proceedings. Thereafter, the parties have fourteen (14) days
within which to file a response to the objections. Failure to timely file objections to any
findings or recommendations of the Magistrate Judge will be considered a waiver of a
party's right to de novo consideration of the issues, see United States v. Reyna-Tapia, 328
F.3d 1114, 1121 (9th Cir. 2003)(en banc), and will constitute a waiver of a party's right to
4 When Petitioner has a final order of removal, and his detention shifts to § 1231(a)(6), the
limitations in Xi may apply to afford him a right to a bond hearing.
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appellate review of the findings of fact in an order or judgment entered pursuant to the
recommendation of the Magistrate Judge, Robbins v. Carey, 481 F.3d 1143, 1146-47 (9th
Cir. 2007).
In addition, the parties are cautioned Local Civil Rule 7.2(e)(3) provides that
“[u]nless otherwise permitted by the Court, an objection to a Report and Recommendation
issued by a Magistrate Judge shall not exceed ten (10) pages.”
Dated: April 9, 2026
26-1235r RR 26 04 09 on HC.docx
James F. Metcalf
United States Magistrate Judge
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