Khamitsaev v. Vasquez et al

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
LAREDO DIVISION
OLEG KHAMITSAEV,
Petitioner,
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§
§
§
§
§
§
v. 	CIVIL ACTION NO. 5:26-CV-00112
NORBAL VASQUEZ, ET AL.,1
Respondents.
MEMORANDUM OPINION AND ORDER
Petitioner is currently detained in federal immigration custody in Texas. Before
the Court is Petitioner’s Verified Petition for Writ of Habeas Corpus and Complaint for
Injunctive and Declaratory Relief, (Dkt. No. 1), Respondents’ Motion for Summary
Judgment, (Dkt. No. 10), and Respondents’ Supplemental Response to Verified Petition
for Writ of Habeas Corpus, (Dkt. No. 12). This case is about whether Petitioner, a
noncitizen designated as an arriving alien is entitled to procedural due process in the
form of an individualized determination regarding his civil detention after he’s spent
years free from detention in the United States. The Court finds that he is.
The Court finds that Petitioner’s deprivation of liberty without constitutionally
adequate procedures is a violation of his due process rights, and the failure to provide
due process warrants his release. For the reasons stated below, Petitioner’s Petition for
Writ of Habeas Corpus is granted in part. Respondents are ordered to release Petitioner
by July 21, 2026, at 5:00 p.m. The parties are ordered to notify the Court of the status
of Petitioner’s release by July 22, 2026, at 5:00 p.m.
I. BACKGROUND
A. Factual Background
Petitioner, a citizen of Russia, challenges his ongoing detention without a bond
1 Markwayne Mullin is automatically substituted for Kristi Noem in this case under Federal Rule
of Civil Procedure 25(d). Todd Blanche is substituted for Pamela Bondi, and David Venturella is substituted
for Todd Lyons under the same rule. The Clerk of Court is DIRECTED to substitute these parties on the
docket sheet.
United States District Court
Southern District of Texas
ENTERED
July 20, 2026
Nathan Ochsner, Clerk
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hearing. According to the petition, Petitioner entered the United States on October 29,
2022, when he sought entry into the United States. (Dkt. No. 1 at 13; Dkt. No. 10-1 at
1).2 He was served a Notice to Appear, identifying him as an arriving alien, and he was
released on humanitarian parole under 8 U.S.C. § 1182(d)(5)(A). (Dkt. No. 1 at 13; Dkt.
No. 1-2; Dkt. No. 10 at 2). His parole expired on October 28, 2023. (Dkt. No. 1 at 13). After
Petitioner was paroled, he traveled to Illinois, where he filed an asylum application. (Id.).
Petitioner complied with his parole and asylum application requirements and lived in
the United States for the subsequent two years. (Id.). While living in the United States,
he also obtained work authorization. (Dkt. No. 1-4 at 1).
Petitioner was re-detained by immigration officials on November 19, 2025, while
crossing through an immigration checkpoint. (Id. at 14). On December 12, 2025,
Petitioner was ordered removed. (Dkt. No. 1-6). However, Petitioner’s order of removal is
not final because he filed an appeal to the Board of Immigration Appeals (BIA), which
remains pending. (Dkt. No. 22-1). Petitioner represents that his re-detention has caused
his minor child to experience significant emotional distress, including “frequent episodes
of crying, recurrent nighttime awakenings accompanied by fear and nightmares, and
ongoing expressions of anxiety, including repeatedly asking when her father will be able
to return home.” (Dkt. No. 1 at 14).
B. Legal Background
On May 15, 2025, the BIA issued a published decision expanding mandatory
detention under 8 U.S.C. § 1225(b)(2)(A). See Matter of Q. Li, 29 I&N Dec. 66 (BIA 2025).
In Matter of Q. Li, a noncitizen was arrested by the Department of Homeland Security
(DHS) shortly after entering the United States, released on humanitarian parole under
8 U.S.C. § 1182(d)(5)(A), and then re-detained two years later at a DHS check-in
appointment. Id. at 67. The BIA held that applicants for admission who are arrested
without warrants while arriving in the United States and then placed in removal
proceedings are subject to mandatory detention under 8 U.S.C. § 1225(b)(2)(A). Id. at 71.
On July 8, 2025, DHS and the Department of Justice (DOJ) released interim
2 When citing to the page numbers of any document in the record, the Court will cite to the page
numbering of the Court’s internal CM/ECF docket system, and not to the page numbers in the underlying
documents.
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guidance, announcing a new legal position on detention authorities for noncitizens. The
guidance interpreted the mandatory detention provision of 8 U.S.C. § 1225 as applying
to the detention of all “applicants for admission,” including all noncitizens who have not
been admitted, whether they arrive at a port of entry or enter without inspection. This
position was adopted by the BIA in September 2025. Matter of Yajure Hurtado, 29 I. &
N. Dec. 216 (BIA 2025). Matter of Yajure Hurtado held that Immigration Judges (IJs)
lack authority to hear bond requests or to grant bond to all noncitizens who are present
in the United States without admission because they are subject to mandatory detention
under 8 U.S.C. § 1225(b)(2). Id.
In the months following the shift in policy, federal district courts across the
country found the Government’s interpretation at odds with the text of the statute and
ordered bond hearings, or release, for noncitizens subject to mandatory detention under
the policy. See, e.g., Barco Mercado v. Francis, No. 25-CV-6582, 2025 WL 3295903, at *4,
n.22 (S.D.N.Y. Nov. 26, 2025) (collecting cases). In February 2026, the Fifth Circuit held
that Section 1225(b)(2) applies to all applicants for admission, regardless of whether they
are actively “seeking admission” when they are detained. Buenrostro-Mendez v. Bondi,
166 F.4th 494, 502 (5th Cir. 2026). However, Buenrostro did not address the validity of
due process claims such as those raised by Petitioner in this case. See, e.g., Bonilla Chicas
v. Warden, No. 5:26-CV-131, 2026 WL 539475, at *4–5 (S.D. Tex. Feb. 20, 2026).
This Court has granted 	habeas relief 	to noncitizens subject to 	mandatory
detention under Section 1225(b)(2) when they have acquired protected liberty interests.
Lopez Moncebais v. Bondi, No. 5:26-CV-268, slip op. (S.D. Tex. Mar. 27, 2026). In Lopez
Moncebais, this Court found that Buenrostro does not foreclose due process challenges to
mandatory detention, a noncitizen subject to mandatory detention may bring an as-
applied due process challenge to 8 U.S.C. Section 1225(b)(2), Supreme Court precedent
does not foreclose that type of challenge, and liberty interests in freedom from detention
must be protected by due process of law, including individualized justification for civil
detention. See id. The Court then applied the balancing test from Mathews v. Eldridge
and found that the petitioner’s procedural due process rights had been violated. Id. at 13
(citing Mathews, 424 U.S. at 333). The Court ordered immediate release for the due
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process violation. Id. at 17.
II. LEGAL STANDARDS
A. 28 U.S.C. § 2241
A district court may grant a writ of habeas corpus if a petitioner is in federal
custody in violation of the Constitution or federal law. 28 U.S.C. § 2241. Historically, “the
writ of habeas corpus has served as a means of reviewing the legality of Executive
detention, and it is in that context that its protections have been strongest.” I.N.S. v. St.
Cyr, 533 U.S. 289, 301 (2001). Accordingly, a district court’s habeas jurisdiction includes
challenges to immigration-related detention. Zadvydas v. Davis, 533 U.S. 678, 687
(2001); see also Demore v. Kim, 538 U.S. 510, 517 (2003); Oyelude v. Chertoff, 125 F. App’x
543, 546 (5th Cir. 2005).
B. The Fifth Amendment Due Process Clause
The Fifth Amendment provides that “[n]o person shall . . . be deprived of life,
liberty, or property, without due process of law . . . .” U.S. Const. amend. V. Liberty
interests “may arise from the Constitution itself, by reason of guarantees implicit in
the word ‘liberty,’ . . . or [they] may arise from an expectation or interest created by
[ ] laws or policies.” Wilkinson v. Austin, 545 U.S. 209, 221 (2005) (discussing liberty
interests protected by the Fourteenth Amendment’s due process clause); see also
Douglass v. Nippon Yusen Kabushiki Kaisha, 46 F.4th 226, 238 (5th Cir. 2022)
(“Because the Due Process Clauses use the same language and guarantee individual
liberty in the same way, it makes sense that the standards developed in the
Fourteenth Amendment context must govern under the Fifth Amendment.”).
C. 8 U.S.C. Sections 1226 and 1225
Section 1226 provides the general process for arresting and detaining noncitizens
who are present in the United States and eligible for removal. 8 U.S.C. § 1226. The
Supreme Court has explained that Section 1226(a) “sets out the default rule: The
Attorney General may issue a warrant for the arrest and detention of an alien ‘pending
a decision on whether the alien is to be removed from the United States.’” Jennings v.
Rodriguez, 583 U.S. 281, 288 (2018) (quoting § 1226(a)). “[T]he Attorney General may
release an alien detained under § 1226(a) on bond or conditional parole.” Jennings, 583
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U.S. at 288 (citation modified). But “aliens who are covered by § 1225(b)(2) are detained
pursuant to a different process” and “‘shall be detained for a [removal] proceeding’ if an
immigration officer ‘determines that [they are] not clearly and beyond a doubt entitled to
be admitted’ into the country.” Id. (quoting § 1225(b)(2)(A)). Hence, “noncitizens detained
under Section 1225(b)(2) must remain in custody for the duration of their removal
proceedings, while those detained under Section 1226(a) are entitled to a bond hearing
before an [Immigration Judge (IJ)] at any time before entry of a final removal order.” See
Rodriguez v. Bostock, 779 F. Supp. 3d 1239, 1247 (W.D. Wash. 2025).
D. Rule 56 Motion for Summary Judgment
A “court shall grant summary judgment if the movant shows that there is no
genuine dispute of any material fact, and that the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). The Court must consider the record as a whole to
determine whether a genuine dispute exists. See Celotex Corp. v. Catrett, 477 U.S. 317,
322–23 (1986). However, the Court must view the facts in the light most favorable to the
non-moving party. Valderas v. City of Lubbock, 937 F.3d 384, 389 (5th Cir. 2019).
III. DISCUSSION
Petitioner filed the instant petition for a writ of habeas corpus, maintaining that
he is entitled to release from detention. He brings several claims for relief: unlawful
denial of release on bond in violation of the Immigration and Nationality Act (INA) and
bond regulations and violation of the Due Process Clause of the Fifth Amendment.
Petitioner’s due process claim is that Respondents have deprived him of his liberty
interest to be free from detention without due process of law in violation of the Fifth
Amendment. (Dkt. No. 12 at 7) (explaining the nature of Petitioner’s remaining due
process claim following the Fifth Circuit’s decision in Buenrostro). Petitioner requests,
among other things, that this Court issue an order requiring Respondents to release him
or, alternatively, to hold a bond hearing.
Respondents move for summary judgment, asserting that Petitioner is subject to
mandatory detention as an arriving alien and that his detention does not violate
procedural or substantive due process. Respondents also contend that Petitioner failed
to exhaust his administrative remedies. The Court principally addresses Petitioner’s due
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process claim and finds that his detention violates due process.3 The Court begins with
exhaustion.
A. Failure to Exhaust Remedies Does Not Preclude Petitioner’s Claims
Respondents first argue that the petition should be denied for failure to exhaust
administrative remedies. Petitioner contends that exhausting his remedies would be
futile under the BIA’s decision in Matter of Yajure Hurtado. Respondents argue that
Petitioner must request a custody redetermination before bringing his claim. They
contend that federal prisoners must exhaust all administrative remedies before filing a
Section 2241 habeas petition. Though, as Respondents acknowledge, the Fifth Circuit
carves out an exception to exhaustion based on patent futility. (Dkt. No. 10 at 3) (quoting
Fuller v. Rich, 11 F.3d 61, 62 (5th Cir. 1994)) (noting that the exception should “apply
only in extraordinary circumstances”). Respondents argue that the administrative
remedy here is not patently futile.
This 	Court, 	along 	with 	others, 	has 	previously 	analyzed 	exhaustion 	of
administrative remedies prior to filing Section 2241 habeas petitions regarding the
denial of bond hearings. See, e.g., Perdomo Flores v. Noem, No. 5:25-CV-162, slip op. at 5
(S.D. Tex. Nov. 25, 2025). As noted in those cases, there is no statutory requirement to
exhaust remedies for alien detention claims; rather, “[u]nder the INA exhaustion of
administrative remedies is only required by Congress for appeals on final orders of
removal.” Lopez-Arevelo v. Ripa, No. EP-25-CV-337, 2025 WL 2691828, at *6 (W.D. Tex.
Sep. 22, 2025) (quoting Garza-Garcia v. Moore, 539 F. Supp. 2d 899, 904 (S.D. Tex. 2007));
see also 8 U.S.C. § 1252(d)(1) (“A court may review a final order of removal only if . . . the
alien has exhausted all administrative remedies.” (emphasis added)).
Here, Petitioner is not asking the Court to review a final removal order, so there
is no statutory requirement to exhaust. Aside from statutory requirements, federal
prisoners generally must exhaust administrative remedies before filing Section 2241
habeas petitions. See, e.g., Gallegos-Hernandez v. United States, 688 F.3d 190, 194 (5th
Cir. 2012). However, exhaustion may be waived “where the attempt to exhaust such
remedies would itself be a patently futile course of action.” Id. (citing Fuller, 11 F.3d at
3 Because the Court grants Petitioner’s requested relief without consideration of his other claim,
the Court will decline to address the merits of that claim.
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62).
Because the BIA has held that IJs lack jurisdiction to hear claims like Petitioner’s,
it would be patently futile to require him to seek relief in immigration court on this issue.
Petitioner’s request would be futile because an IJ would not have the authority to hear
his claim under the BIA’s current caselaw. The Court finds that, to the extent that
prudential exhaustion of remedies would be required, it should be waived in this case.
Therefore, Respondents’ motion for summary judgment based on failure to exhaust
remedies is denied.
B. Petitioner’s Detention Violates Procedural Due Process
The remaining issue before the Court is whether Petitioner has a protected liberty
interest in his freedom from detention following his presence in the United States despite
his classification as an “arriving alien” and his expired humanitarian parole. This issue
is similar to the issue presented in Lopez Moncebais, as explained above. See supra at
Part I.B. Though, the instant facts are distinguishable. Petitioner entered at a port of
entry as an “arriving alien” and was granted parole, as opposed to Lopez Moncebais, who
entered without inspection and remained present in the United States for decades. This
distinction is important because noncitizens who are paroled into the country are subject
to the “entry fiction,” a legal fiction providing that those “who arrive at ports of entry—
even those paroled elsewhere in the country for years pending removal—are ‘treated’ for
due 	process 	purposes 	‘as 	if 	stopped 	at 	the 	border.’” 	Dep’t 	of 	Homeland 	Sec. 	v.
Thuraissigiam, 591 U.S. 103, 139 (2020).
Petitioner challenges his mandatory detention without a bond hearing. He asserts
that his ongoing detention is a deprivation of a protected liberty interest that has not
been 	justified 	by 	an 	individualized 	determination 	that 	he 	should 	be 	detained.
Respondents argue that his mandatory detention does not violate procedural due process.
First, they argue that any challenge to the mandatory detention provision is inherently
substantive instead of procedural. Second, they argue that, even if plausible, a procedural
due process claim would fail here because the Supreme Court denied a challenge to
mandatory detention in Demore, and procedural due process only extends so far as a
statute 	allows. 	538 	U.S. 	510. 	Finally, 	they 	argue 	that 	the Mathews 	factors 	are
inapplicable. 424 U.S. 319 (1976). Notably, these arguments are identical to the
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arguments considered—and rejected—in Lopez Moncebais.
At bottom, the Court must consider whether mandatory detention under 8 U.S.C.
§ 1225(b) violates procedural due process as it applies to Petitioner. First, the Court must
determine whether Petitioner could acquire a protected liberty interest in light of the
entry fiction. If a liberty interest could be acquired, the Court must then determine
whether Petitioner’s detention violates his rights under the Fifth Amendment Due
Process Clause after applying the Mathews factors. The Court concludes for the reasons
explained below that the mandatory detention of Petitioner, without any individualized
determination, is a deprivation of liberty that must be safeguarded with adequate
procedures.
1. The Entry Fiction and Other Precedent Do Not Bar Due Process
The Fifth Amendment provides that “[n]o person shall . . . be deprived of life,
liberty, or property, without due process of law . . . .” U.S. Const. amend. V (emphasis
added). This guarantee extends to every person in the United States, regardless of their
immigration status. Zadvydas, 533 U.S. at 693 (“[T]he Due Process Clause applies to all
‘persons’ within the United States, including aliens, whether their presence here is
lawful, unlawful, temporary, or permanent.”); see also A.A.R.P. v. Trump, 605 U.S. 91, 94
(2025) (explaining that due process protections apply to noncitizens). Due process
includes both procedural and substantive rights. Procedural due process promotes
fairness in government decisions “[b]y requiring the government to follow appropriate
procedures when its agents decide to ‘deprive any person of life, liberty or property.’’
Daniels v. Williams, 474 U.S. 327, 331 (1986). Substantive due process “bar[s] certain
government actions regardless of the fairness of the procedures used to implement them.”
Id.
Like 	in 	Lopez 	Moncebais, 	Respondents 	argue 	that 	Petitioner’s 	as-applied
constitutional challenge cannot be brought as a procedural due process claim because the
statute governing his detention does not entitle Petitioner to any procedures at all.
Respondents rely on Connecticut Department of Public Safety v. Doe, 538 U.S. 1 (2003),
and a string of similar cases. (Dkt. No. 6 at 5–7) (citing Reno v. Flores, 507 U.S. 292, 308
(1993); Michael H. v. Gerald D., 491 U.S. 110, 119–21 (1989); Duarte v. City of Lewisville,
858 F.3d 348 (5th Cir. 2017)). However, the rights and statutes involved in most of these
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cases are distinguishable from the instant procedural due process challenge. Doe, 538
U.S. 1 (permitting state regulation of the procedures to which convicted sex offenders are
entitled in the sex-offender registration process); Michael H., 491 U.S. 110 (rejecting a
procedural due process challenge to state law terminating a liberty interest in a parent’s
relationship with their child); Duarte, 858 F.3d 348 (applying Doe in finding that state
laws regulating where convicted sex offender can live do not trigger procedural due
process).
And in the fourth case, Reno v. Flores, Respondents’ alteration of the quote
overextends the Court’s meaning. Respondents imply that the Supreme Court there
denied the procedural due process claim because it essentially was a substantive due
process claim; and in fact, it’s what they attempt to argue here. However, the Court stated
in full: “This is just the ‘substantive due process’ argument recast in ‘procedural due
process’ terms, and we reject it for the same reasons.” Flores, 507 U.S. at 308 (emphasis
added). The Court’s conclusion was narrower and not as general as Respondents contend.
Because the Court had already denied the substantive due process claim, it relied on the
same reasons to deny the procedural due process claim. The Court did not proclaim
generally that this type of challenge is necessarily a substantive due process claim.
As held in Lopez Moncebais, the distinction between these cases relied on by
Respondents and the instant challenge fatally undermines Respondents’ arguments. The
challenge here is not one to determine the extent to which states can infringe somewhat
attenuated liberty interests of convicted sex offenders who “ha[ve] already had [ ]
procedurally safeguarded opportunit[ies] to contest [their convictions],” including liberty
interests like where they may live and whether or not they will be registered on a sex-
offender registry for their predicate conviction. Duarte, 858 F.3d at 352. The challenge
here is to mandatory detention of all noncitizens charged as inadmissible to the United
States, regardless of their flight risk, danger to society, or length of time residing in the
United States free from detention. The denial of the right to a hearing on the deprivation
of a noncitizen’s liberty is occurring at the inception of removal proceedings, even before
the noncitizen’s removability is determined. Unlike in the contexts of the cases relied on
by 	Respondents, 	this 	deprivation 	of 	liberty 	is 	occurring 	without 	“procedurally
safeguarded opportunity” to contest their detention. This context in which a liberty
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interest is being deprived distinguishes it from the cases relied on by Respondents.
Accordingly, the Court rejects Respondents’ arguments.
The Court next turns to the liberty interest. Respondents rely on two Supreme
Court cases: Demore v. Kim and Department of Homeland Security v. Thuraissigiam. In
Demore, the Supreme Court rejected a constitutional challenge to mandatory detention
of noncitizens with certain criminal convictions under 8 U.S.C. § 1226(c). 538 U.S. at
517–18. In considering a line of caselaw authorizing mandatory detention of noncitizens
in certain circumstances, the Court found that the mandatory detention of “a criminal
alien who has conceded that he is deportable,” is constitutionally permissible and falls in
line with these cases. Id. at 531 (citing Wong Wing v. United States, 163 U.S. 228 (1896);
Carlson v. Landon, 342 U.S. 524 (1952); Flores, 507 U.S. 292)). The Court there
ultimately denied the due process challenge to the Section 1226(c),4 finding that “[s]uch
detention necessarily serves the purpose of preventing deportable criminal aliens from
fleeing prior to or during their removal proceedings, thus increasing the chance that, if
ordered removed, the aliens will be successfully removed.” Demore, 538 U.S. at 527–28
(referencing “criminal alien[s]” twenty-eight times in the majority opinion).
Here, Demore is cited for the broader proposition that “[d]etention during removal
proceedings is a constitutionally permissible part of that process.” 538 U.S. at 531. It is
true that civil detention is authorized during removal proceedings when it “bears a
reasonable relation to the purpose” of the detention. See Zadvydas, 533 U.S. at 690
(citation modified). But, as in Lopez Moncebais, the Court finds that Demore does not
necessarily permit all conceivable mandatory detention policies for noncitizens, and it is
instead much narrower. While detention itself may be constitutionally permissible, that
is not to say that detention is unchecked by a noncitizen’s entitlement to due process
under the Fifth Amendment. Demore was narrowly focused on mandatory detention as a
result of criminal convictions. Demore does not validate mandatory detention for all
applicants for admission, even those like Petitioner who have no criminal record, and it
should not preclude due process challenges for detainees under Section 1225(b)(2). For
this reason, the Court finds that Petitioner’s challenge is not presently foreclosed by
4 Section 1226(c), titled Detention of Criminal Aliens, requires detention of inadmissible and
deportable aliens who have committed certain criminal offenses identified in statute. 8 U.S.C. § 1226(c).
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Demore or this line of precedent.
Next, Respondents argue that Petitioner’s procedural due process rights only
extend to rights “provided by statute” pursuant to Thuraissigiam. While Respondents do
not fully address this argument in the briefing, the Court will consider the general
argument that Petitioner’s rights are limited to the statute by virtue of the entry fiction.
In Thuraissigiam, the Supreme Court held that a noncitizen who recently crossed the
border 	without 	inspection 	lacked 	the 	constitutional 	due 	process 	right 	to 	review
procedures that were not provided by statute and is treated for due process purposes as
if stopped at the border. Thuraissigiam, 591 U.S. at 140. This is the entry fiction. In
Lopez Moncebais, the facts of Thurassigiam were distinguishable from the facts there, so
the Court did not analyze the issue at length. Here, however, the Court must determine
whether the entry fiction precludes Petitioner’s due process claim because he is classified
as an arriving alien and subject to the entry fiction despite his parole.5
“[P]arole creates something of legal fiction; although a paroled alien is physically
allowed to enter the country, the legal status of the alien is the same as if he or she were
still being held at the border waiting for his or her application for admission to be granted
or denied.” Duarte v. Mayorkas, 27 F.4th 1044, 1058 (5th Cir. 2022) (citation omitted).
Though, there are distinctions “between those [noncitizens] who have come to our shores
seeking admission . . . and those who are within the United States after an entry,
irrespective of its legality.” Leng May Ma v. Barber, 357 U.S. 185, 187 (1958). “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.’” Id.
(citation modified). “[O]nce [a noncitizen] enters the country, the legal circumstance
changes, for the Due Process Clause applies to all ‘persons’ within the United States,
including [noncitizens], whether their presence here is lawful, unlawful, temporary, or
permanent.” Zadvydas, 533 U.S. at 693. “The fundamental requirement of due process is
the opportunity to be heard ‘at a meaningful time and in a meaningful manner.’”
5 This issue has been considered by other district courts, which have found that the entry fiction
does not preclude the acquisition of protected liberty interests under these facts. See, e.g., Strunin v. Garcia,
No. 5:26-CV-00106, — F. Supp. 3d —, 2026 WL 958952, at *6 (S.D. Tex. Mar. 3, 2026); see also Baptiste v.
Bondi, No. CV 26-2586, 2026 WL 1684433, at *5, report and recommendation (D. Ariz. May 21, 2026)
(collecting cases). The Court finds the reasoning relied on in these cases persuasive and applies it here.
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Mathews, 424 U.S. at 333 (quoting Armstrong v. Manzo, 380 U.S. 545, 552 (1965)).
In light of these principles, Thuraissigiam and other entry fiction cases do not
preclude Petitioner’s entitlement to due process or acquisition of a protected liberty
interest. Importantly, “the Supreme Court has never applied the entry fiction doctrine to
a case like this—to constitutionally justify the detention of a person living freely, for
years, within the United States—and its expansion here cannot be justified.’” Strunin,
No. 5:26-CV-00106, 2026 WL 958952, at *7 (first quoting Torres v. Hermosillo, No. 2:25-
CV-2687, 2026 WL 145715, *4 (W.D. Wash. Jan. 20, 2026) (citation modified), then citing
Mata Velasquez v. Kurzdorfer, 794 F. Supp. 3d 128, 147, 151 (W.D.N.Y. 2025)). In
Strunin, the Court relief on Jennings to distinguish the petitioner’s challenge from
Thuraissigiam because he did not actually challenge his removability—just the process
received in connection with his detention. Strunin, No. 5:26-CV-00106, 2026 WL 958952,
at *7. The Court agrees with Strunin that the instant liberty interest is not limited by
Thuraissigiam 	because 	that 	holding 	only 	limits 	rights 	“regarding 	admission.”
Thuraissigiam, 591 U.S. at 141. Here, Petitioner’s challenge to his detention does not
concern his admission.
Further, Petitioner’s humanitarian parole into the United States and residence
here for years are distinguishable from Thuraissigiam, who was apprehended 25 yards
from the border. Extending the entry fiction argument this far would be an unreasonable
stretch of legal fiction. The entry fiction hinges on facts not present in this case: “[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.’” Thuraissigiam, 591 U.S. at 138 (quoting Nishimura
Ekiu v. United States, 142 U.S. 651, 660). Here, Petitioner has lived in the United States
for years with his wife and child; he complied with the Government’s requirements for
his humanitarian parole and asylum application; and he has been lawfully employed
while living here. Even if Petitioner is considered to be stopped at the threshold with
respect to his rights regarding admission, these facts do not warrant an extension of the
entry fiction to strip him of due process rights with respect to his present detention.
Due process applies to all persons. U.S. Const. amend. V (“ No person shall . . . be
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deprived of life, liberty, or property, without due process of law . . . .”); Mathews v.
Diaz, 426 U.S. 67, 77 (1976) (“There are literally millions of aliens within the jurisdiction
of the United States. The Fifth Amendment . . . protects every one of these persons from
deprivation of life, liberty, or property without due process of law.”). While the entry
fiction permissibly limits due process rights as to admission following Thuraissigiam,
that conclusion does not compel the limitation of Petitioner’s rights here. As one district
court put it, “[p]retending that Petitioner never entered the United States not only
subordinates fact to fiction, it disregards the plain meaning of the Due Process Clause,
which promises its protection to every ‘person’ within the United States.” Torres, 2026
WL 145715, at *4. Accordingly, the Court concludes that the entry fiction does not
preclude Petitioner from acquiring a protected liberty interest while living in the United
States free from detention.
2. Petitioner Has a Liberty Interest in Freedom from Detention
Now that the Court has determined that Petitioner’s due process rights are not
nullified by the entry fiction, the Court completes the due process analysis. Challenges
to procedural due process proceed in two parts: first, there must be a deprivation of a
protected interest in property or liberty, and second, there must be constitutionally
inadequate procedures prior to that deprivation. Meza v. Livingston, 607 F.3d 392, 399
(5th Cir. 2010). Liberty interests “may arise from the Constitution itself, by reason of
guarantees implicit in the word ‘liberty,’ . . . or [they] may arise from an expectation or
interest created by [ ] laws or policies.” Wilkinson, 545 U.S. at 221 (2005); Douglass, 46
F.4th at 238. Here, the Court finds that Petitioner clearly has a liberty interest at stake
because he is subject to detention in civil confinement. Freedom from detention is implicit
in the word liberty. By being detained after residing in the United States for years,
Petitioner was deprived of his liberty upon his detention.
Because the Court finds that there is a deprivation of a liberty interest, it next
determines whether constitutionally adequate procedures were used in connection with
the deprivation using the Mathews test.
3. The Mathews Factors Weigh in Favor of Petitioner
“The fundamental requirement of due process is the opportunity to be heard at a
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meaningful time and in a meaningful manner.” Mathews, 424 U.S. at 333. Mathews
established a three-factor balancing test to determine whether procedures prior to a
deprivation are constitutionally sufficient:
First, the private interest that will be affected by the official action; second,
the risk of an erroneous deprivation of such interest through the procedures
used, and the probable value, if any, of additional or substitute procedural
safeguards; and finally, the Government’s interest, including the function
involved and the fiscal and administrative burdens that the additional or
substitute procedural requirement would entail.
424 U.S. at 334–35. The Court considers the application of these factors here.
First, Petitioner has constitutionally protected liberty interests at stake. As
discussed above, Petitioner’s interest in liberty is strong and fundamental. Petitioner
entered in 2022 and has lived in the United States continuously for several years with
his wife and child. While living here, he has worked steadily using his employment
authorization document. He has no criminal history. When he entered the United States,
he was granted humanitarian parole and permitted to live here. Though his parole was
temporary, it facilitated his acquisition of equities that create a liberty interest.
The Court has previously found that a prior release like Petitioner’s strengthens
the liberty interest of a noncitizen because their release created an expectation that they
would be free from detention during the pendency of their removal proceedings. Bonilla
Barrios v. Noem, No. 5:26-cv-172, slip op. at 4 (S.D. Tex. Apr. 2, 2026). As the Court
explained there, liberty interests “may arise from an expectation or interest created by
state laws or policies.” Wilkinson v. Austin, 545 U.S. 209, 221 (2005). In this case,
Petitioner had an expectation, in addition to his residence since 2022, that he would be
free from detention or at least entitled to seek bond while his removal proceedings were
pending. He was released from detention in 2022 and spent several years out of custody
before he was re-detained at a checkpoint. That expectation interest strengthens his
liberty interest. These facts all support the finding that Petitioner has a strong liberty
interest.6 This factor weighs strongly in favor of Petitioner.
Second, the Court evaluates the risk of an erroneous deprivation of liberty through
6 As the Court discussed above, “[f]reedom from imprisonment . . . lies at the heart of the liberty
that [the Due Process] Clause protects.” Zadvydas, 533 U.S. at 690. Beyond the liberty interest in freedom
from detention, other liberty interests compound as noncitizens spend time living in the United States
without a deprivation of that liberty, particularly when that freedom extends for years while the noncitizen
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the procedures used. The risk inquiry is best framed as whether the mandatory detention
here risks a deprivation of liberty that is unjustified. See Carey v. Piphus, 435 U.S. 247,
259–60 (1978) (citation modified) (noting that procedural due process protections prevent
“mistaken or unjustified deprivation of life, liberty, or property” and “[s]uch rules
‘minimize substantively unfair or mistaken deprivations’”). Additionally, the balancing
test asks the Court to consider the “probable value, if any, of additional or substitute
safeguards.” Mathews, 424 U.S. at 334–35.
In analyzing the procedures that Petitioner received prior to or in connection with
his deprivation, the Court finds that insufficient procedures were provided to safeguard
his liberty interest. The procedure used includes Petitioner classification as an arriving
alien, despite his entry in 2022, and an immigration officer’s determination that he is “an
alien seeking admission” and “is not clearly and beyond a doubt entitled to be admitted.”
§ 1225(b)(2). This means that Respondents determined that Petitioner must be detained
because he could not prove, clearly and beyond a doubt, to an immigration officer that he
was not entitled to be admitted at the time he was detained. The limited and unilateral
procedure here creates a high risk of unjustified deprivation in light of Petitioner’s years
of presence in the United States. Generally, a custody redetermination, or bond hearing
in immigration court, safeguards the liberty interests of noncitizen detainees. See
§ 1226(a). However, the procedures here under Section 1225(b) create a high risk of
erroneous deprivation because the statute applies to all noncitizens who fall under Matter
of Q. Li without consideration of factors justifying detention or release, like years of
continuous presence and other equities.7 This factor also weighs in favor of Petitioner.
Third, any burden imposed on the Government does not outweigh Petitioner’s
has time to establish roots and connections in their community. See, e.g., Zafra, No. EP-25-CV-541, 2025
WL 3239526, at *4; see also supra n.8 (reasoning that “liberty interests in freedom from detention increase
as other liberty interests, like the freedom to earn a living and establish a home, extend for years without
a deprivation by the government”).
7 This is distinguishable from Demore. 538 U.S. 510. There the Supreme Court held that mandatory
detention under Section 1226(c) was permissible, but that statute only applied to “a limited class of
deportable aliens—including those convicted of an aggravated felony.” Id. at 518. Demore essentially held
that release on bond could be withheld from noncitizens convicted of a predicate criminal offense, which
presumably correlates to a risk of flight and danger. See id. at 513, 520 (noting that Congress was
“justifiably concerned that deportable criminal aliens who are not detained continue to engage in crime and
fail to appear for their removal hearings in large numbers”). No such evidence has been presented here with
respect to applicants for admission.
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interests described above. The Government has a weighty interest in ensuring a
noncitizen’s appearance at their removal proceedings, removing deportable noncitizens,
and enforcing immigration laws. However, those interests are not at odds with providing
bond hearings to noncitizens or providing justification for detention, and there is no
evidence in the record to believe that Petitioner would be a flight risk or danger.
Petitioner has no record of committing any crime and has significant ties to his
community after living in the United States for several years. While Section 1225(b) does
not provide that bond hearings may be given to arriving aliens, due process requires that
their detention must be justified. See Zadvydas, 533 U.S. at 690. “[G]overnment
detention violates [the Due Process Clause] unless the detention is ordered in . . . certain
special and ‘narrow’ nonpunitive ‘circumstances,’ where a special justification . . . ,
outweighs the ‘individual’s constitutionally protected interest in avoiding physical
restraint.’” Id. (citation modified). Thus, Petitioner’s interests in liberty and the risk he
faces of an erroneous deprivation outweigh the Government interest.
Having considered Petitioner’s petition, Respondents’ motion, and the law, the
Court finds that the balance of the factors establishes that the Government violated
Petitioner’s due process rights when it deprived Petitioner of his liberty interest without
due process of law. Even though Congress may make rules as to aliens that would be
unacceptable if applied to citizens, Demore, 538 U.S. at 522, Petitioner’s interest in
liberty after living in the United States for several years—free from detention—triggers
a liberty interest that makes his detention without any individualized determination
unacceptable. As Respondents are not entitled to judgment as a matter of law, their
motion for summary judgment is denied. Petitioner’s petition for a writ of habeas corpus
is granted as to his procedural due process claim.8
C. Remedy
A district court has equitable discretion in determining the appropriate remedy
“as law and justice require” for unlawful detention in a habeas petition. See Brown v.
Davenport, 596 U.S. 118, 127–28 (2022). The Court finds that the specific harm Petitioner
suffered—unlawful deprivation of liberty without due process—is remedied by granting
8 The Court will decline to address the merits of Petitioner’s other claim because it grants the relief
he requests on this ground.
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his immediate release, rather than ordering a bond hearing.9 Therefore, the Court,
exercising 	its equitable 	discretion in fashioning appropriate 	habeas relief, 	orders
Respondents to release Petitioner from custody. See Delgado Rodriguez, No. 4:26-650,
2026 WL 517983, at *4 (quoting Munaf v. Geren, 553 U.S. 674, 693 (2008)) (“The remedy
for unlawful detention ‘is, of course, release.’”); Reynoso Ochoa v. Vergara, No. 1:26-CV-
266, 2026 WL 482211, at *4 (same).
IV. CONCLUSION
For the foregoing reasons, Petitioner’s Verified Petition for Writ of Habeas Corpus
and Complaint for Injunctive and Declaratory Relief, (Dkt. No. 1), is GRANTED in part
and DENIED in part, and Respondents’ Motion for Summary Judgment, (Dkt. No. 10),
is DENIED.
Respondents are ORDERED to RELEASE Petitioner from custody by July 21,
2026, at 5:00 p.m., under reasonable conditions of release, and to submit a status report
to the Court confirming Petitioner’s release by July 22, 2026, at 5:00 p.m. Respondents
must notify Petitioner’s counsel of the exact time and location of Petitioner’s release no
less than two hours prior to Petitioner’s release from custody. Respondents are ordered
to return Petitioner’s identity documents and personal effects upon release.
All other relief requested by Petitioner is DENIED.
If Petitioner is re-detained, Petitioner must be afforded procedural due process as
guaranteed by the Due Process Clause of the Fifth Amendment.
A final judgment will follow.
9 The Court recognizes the weight of its decision to order Petitioner’s release from custody. When
the Court first began considering habeas petitions in the context of mandatory detention under Section
1225(b), it ordered bond hearings as an adequate remedy for detention that it found to be unlawful. See,
e.g., Padron Covarrubias, No. 5:25-CV-112, 2025 WL 2950097, at *5. However, that relief was in part
premised on the Court’s finding that Section 1226(a) was more applicable to each petitioner’s detention.
Ultimately, the Court determined that a hearing after unjustified deprivation of liberty does not cure the
deprivation. See, e.g., Lopez Moncebais, No. 5:26-CV-268, slip op. at 16 (Mar. 27, 2026). As such, the Court
finds that the same principle extends to this due process violation and it does not order a bond hearing.
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It is so ORDERED.
SIGNED on July 20, 2026.
______________________________
John A. Kazen
United States District Judge
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