Case Name in Immigration Case - Unavailable

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
ANTONIO ANGEL CASTILLO and JUAN
JOSE LEON LOZA,
Petitioners,
vs. 	No. CIV 25-1074 JB/JFR
MARY DE ANDRA YBARRA, DORA A.
CASTRO, KRISTI NOEM, PAMELA JO
BONDI, SIRCE OWEN, EXECUTIVE
OFFICE FOR IMMIGRATION REVIEW,
OTERO IMMIGRATION COURT,
Respondents.
MEMORANDUM OPINION AND ORDER SUSTAINING IN PART AND
OVERRULING IN PART THE OBJECTIONS TO THE MAGISTRATE JUDGE’S
PROPOSED FINDINGS AND RECOMMENDED DISPOSITION
THIS MATTER comes before the Court on the Respondents’ Objections to the Proposed
Findings and Recommended Disposition, filed December 5, 2025 (Doc. 11)(“Objections”). The
Honorable John Robbenhaar, United States Magistrate Judge for the United States District Court
for the District of New Mexico, files the Magistrate Judge’s Proposed Findings and Recommended
Disposition, on November 21, 2025 (Doc. 8)(“PFRD”). 	The PFRD notifies the parties of their
ability to file Objections within fourteen days and that the failure to file Objections waives
appellate review. 	See PFRD at 27. 	On December 5, 2025, the Respondents -- Mary De Anda-
Ybarra, Kristi Noem, Pamela Bondi, Sirce Owen, the Executive Office for Immigration Review,
and the Otero Immigration Court, collectively “the Federal Respondents”1 -- file their Objections
1 Dora Castro, the Warden of the Otero County Processing Center does not work for the
United States of America, and the attorneys working for the United States who file the Objections
to the PFRD do not represent Castro. 	Castro indicates, however, that Castro adopts all of the
Federal Respondents’ positions and argument in these habeas cases.
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to the PFRD. See Objections at 1. The primary issues that the Objections present are: (i) whether
the United States properly detains the Petitioners under § 1225(b)(2), or instead the United States
must detain the Petitioners under § 1226(a) and afford the Petitioners a bond hearing; (ii) whether
the United States violates the Petitioners’ due process rights because of their mandatory detention
under § 1225(b)(2); (iii) whether, if the United States affords the Petitioners a bond hearing, the
United States bears the burden of proving by clear-and-convincing evidence that Petitioners are a
danger to the community or a flight risk; (iv) whether the PFRD recommends relief that the
Petitioners do not seek in their TRO filings, by recommending injunctive relief requiring
compliance with the applicable due process requirements; (v) whether the Court should enjoin the
Respondents from removing the Petitioners from the United States during the pendency of the
habeas proceedings; and (vi) whether the PFRD characterizes Respondents’ discretionary stay
request correctly. 	The Court concludes that: (i) the United States does not properly detain the
Petitioners under § 1225(b)(2), but instead must detain the Petitioners under § 1226(a); (ii) the
United States could violate Castillo’s due process rights, depending on certain facts not currently
before the Court, but does not violate Loza’s due process rights because of the mandatory detention
under § 1225(b)(2); (iii) the Court determines it is not appropriate here to reach the question of
whether the United States bears the burden at a future bond hearing on a habeas petition; (iv) the
PFRD does recommend relief that the Petitioners do not seek in their TRO filings, and the Court
declines to afford relief not sought in the TRO; (v) the Court does not enjoin the Respondents from
removing the Petitioners from the United States during the pendency of the habeas proceedings;
and (vi) the Court concludes that the PFRD does not accurately reflect the Respondents’
discretionary stay request.
FACTUAL BACKGROUND
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No party objects to the PFRD’s factual background. Finding that the facts that Magistrate
Judge Robbenhaar states, therefore, are not clearly erroneous, the Court therefore adopts the
PFRD’s facts. 	See Alexander v. Kirkpatrick, 435 F. Supp. 3d 1216, 1221-22 (D.N.M.
2020)(Browning, J.)(“Because the parties have not objected to it, the Court does not review the
PFRD de novo, but rather reviews [the PFRD] to determine if it is clearly erroneous, arbitrary,
obviously contrary to law, or an abuse of discretion.”).
Loza is forty-nine years old and a Mexican citizen and national. See PFRD at 4. He first
arrives in the United States around August, 1999, without inspection. See PFRD at 4. Loza resides
in New Mexico, where he owns two restaurants -- one in Artesia, New Mexico and the other in
Ruidoso, New Mexico -- that, in total, employs twenty-five people. 	See PFRD at 4. 	Loza has
three children who are United States citizens, two of whom he financially supports while they
attend college. See PFRD at 4. On August 16, 2025, Loza “was detained at a check point located
in the interior of the United States,” and the United States holds Loza since his detainment at the
Otero County Processing Center in Chaparral, New Mexico. See PFRD at 4. The United States
deems Loza to be an “applicant for admission” ineligible for a bond hearing under 8 U.S.C. §
1225(b)(2). See PFRD at 4.
Castillo is thirty-three years old and a Mexican citizen and national. See PFRD at 4. He
first arrives in the United States as a minor in 2001, without inspection, and is raised in El Paso,
Texas, until he is eighteen years old. See PFRD at 4. At an unspecified date, Castillo’s abusive
stepfather escorts Castillo to the international bridge between the United States and Mexico, and
kicks Castillo out of the country. See PFRD at 5. Castillo reenters the United States on July 1,
2023. 	See PFRD at 5. 	On December 29, 2024, Castillo is encountered at the El Paso County
Detention Facility following an arrest for Burglary of Habitation. See Motion to Dismiss Class
Action Complaint and Petition for Writ of Habeas Corpus, at 3, filed December 23, 2025 (Doc.
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21). Shortly thereafter, on January 3, 2025, the United States detains Castillo. See PFRD at 5.
Castillo’s burglary charges are dismissed on March 2025. See PFRD at 5. Pursuant to Castillo’s
request, an IJ holds a custody redetermination review on April 28, 2025. See PFRD at 5. The IJ
denies Castillo bond based on the ultimately incorrect basis that Castillo has been arrested for
domestic violence charges. See PFRD at 5. Castillo appeals this determination to the BIA on April
29, 2025. 	See PFRD at 5. 	On August 20, 2025, the BIA holds that the IJ’s denial was clearly
erroneous, because Castillo has never been arrested for domestic violence, and remands the bond
matter to the IJ to continue exercising jurisdiction and issue a new order. See PFRD at 5. Pursuant
to the BIA order, Castillo has another bond hearing on August 28, 2025. See PFRD at 5. During
this hearing, DHS argues for the first time that the IJ does not have jurisdiction because Castillo is
deemed an applicant for admission and is not eligible for a bond. See PFRD at 6. The IJ finds
that it has jurisdiction, and further finds that Castillo proves, by clear-and-convincing evidence,
that he is neither a danger to society nor a flight risk. See PFRD at 6. 	Accordingly, the IJ orders
that Castillo be released on a $20,000.00 bond. See PFRD at 6. 	On August 29, 2025, however,
DHS files Form EOIR-43 (Notice of Intent to Appeal Custody Redetermination), which invokes
automatic-stay provisions under 8 C.F.R. § 1003.19(i)(2). 	See PFRD at 6. 	On September 10,
2025, DHS files Form EOIR-43 (Notice of Intent to Appeal Custody Redetermination),
supplementing the form with a brief arguing that the IJ lacks jurisdiction to hear bond requests or
to grant bond to any alien present in the United States without admission. See PFRD at 6. On
December 5, 2025, the BIA sustains DHS’ appeal and vacates the IJ’s August 28, 2025 decision
granting release on bond under § 1226(a), deciding that the IJ lacked authority to hear Castillo’s
request for a bond because Castillo is an applicant for admission subject to mandatory detention
under § 1225(b)(2). 	See Matter of Antonio Adrian Castillo, No. Redacted, at 1, (B.I.A. Dec. 5,
2025)(unpublished), filed December 23, 2025 (Doc. 21).
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LAW REGARDING OBJECTIONS TO PROPOSED FINDINGS AND
RECOMMENDATIONS
District courts may refer dispositive motions to a Magistrate Judge for a recommended
disposition. See Fed. R. Civ. P. 72(b)(1) (“A magistrate judge must promptly conduct the required
proceedings when assigned, without the parties' consent, to hear a pretrial matter dispositive of a
claim or defense. . . .”). Rule 72(b)(2) governs objections: “Within 14 days after being served with
a copy of the recommended disposition, a party may serve and file specific written objections to
the proposed findings and recommendations.” Fed. R. Civ. P. 72(b)(2). Finally, when resolving
objections to a Magistrate Judge's proposal, “[t]he district judge must determine de novo any part
of the magistrate judge's disposition that has been properly objected to. The district judge may
accept, reject, or modify the recommended disposition; receive further evidence; or return the
matter to the magistrate judge with instructions.” Fed. R. Civ. P. 72(b)(3). Similarly, 28 U.S.C. §
636 provides:
A judge of the court shall make a de novo determination of those portions of the
report 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).
“The filing of objections to a magistrate's report enables the district judge to focus attention
on those issues -- factual and legal -- that are at the heart of the parties' dispute.” United States v.
One Parcel of Real Prop., With Bldgs., Appurtenances, Improvements, and Contents, 73 F.3d 1057,
1059 (10th Cir.1996)(“One Parcel”)(quoting Thomas v. Arn, 474 U.S. 140, 147 (1985)). As the
United States Court of Appeals for the Tenth Circuit notes, “the filing of objections advances the
interests that underlie the Magistrate's Act, including judicial efficiency.” One Parcel, 73 F.3d at
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1059 (citing Niehaus v. Kan. Bar Ass'n, 793 F.2d 1159, 1165 (10th Cir.1986); United States v.
Walters, 638 F.2d 947, 950 (6th Cir. 1981)).
The Tenth Circuit holds “that a party's objections to the magistrate judge's report and
recommendation must be both timely and specific to preserve an issue for de novo review by the
district court or for appellate review.” 	One Parcel, 73 F.3d at 1060. 	“To further advance the
policies behind the Magistrate's Act, [the Tenth Circuit], like numerous other circuits, have adopted
‘a firm waiver rule’ that ‘provides that the failure to make timely objections to the magistrate's
findings or recommendations waives appellate review of both factual and legal questions.’” One
Parcel, 73 F.3d at 1059. In addition to requiring specificity in objections, the Tenth Circuit states
that “[i]ssues raised for the first time in objections to the magistrate judge's recommendation are
deemed waived.” Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996). See United States v.
Garfinkle, 261 F.3d 1030, 1031 (10th Cir. 2001)(“In this circuit, theories raised for the first time
in objections to the magistrate judge's report are deemed waived.”). In an unpublished opinion,
the Tenth Circuit states that “the district court correctly held that [a petitioner] had waived [an]
argument by failing to raise it before the magistrate.” Pevehouse v. Scibana, 229 Fed. Appx. 795,
796 (10th Cir.2007).2
2 Pevehouse v. Scibana is an unpublished opinion, but the Court can rely on an unpublished
Tenth Circuit opinion to the extent its reasoned analysis is persuasive in the case before it. See 10th
Cir. R. 32.1(A) (“Unpublished decisions are not precedential, but may be cited for their persuasive
value.”). The Tenth Circuit has stated:
In this circuit, unpublished orders are not binding precedent, . . . and we have
generally determined that citation to unpublished opinions is not favored. However,
if an unpublished opinion or order and judgment has persuasive value with respect
to a material issue in a case and would assist the court in its disposition, we allow
citation to that decision.
United States v. Austin, 426 F.3d 1266, 1274 (10th Cir. 2005)(citing In re Citation of Unpublished
Opinions/Orders & Judgments, 151 F.R.D. 470 (10th Cir. 1993)). 	The Court concludes that
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In One Parcel, the Tenth Circuit, in accord with other Courts of Appeals, expands the
waiver rule to cover objections that are timely but too general. See One Parcel, 73 F.3d at 1060.
The Supreme Court of the United States -- in the course of approving the United States Court of
Appeals for the Sixth Circuit's use of the waiver rule -- notes:
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. The House and Senate Reports
accompanying the 1976 amendments do not expressly consider what sort of review
the district court should perform when no party objects to the magistrate's report.
See S.Rep. No. 94-625, pp. 9-10 (1976)(hereafter Senate Report); H.R.Rep. No. 94-
1609, p. 11 (1976), U.S.Code Cong. & Admin. News 1976, p. 6162 (hereafter
House Report). There is nothing in those Reports, however, that demonstrates an
intent to require the district court to give any more consideration to the magistrate's
report than the court considers appropriate. Moreover, the Subcommittee that
drafted and held hearings on the 1976 amendments had before it the guidelines of
the Administrative Office of the United States Courts concerning the efficient use
of magistrates. Those guidelines recommended to the district courts that “[w]here
a magistrate makes a finding or ruling on a motion or an issue, his determination
should become that of the district court, unless specific objection is filed within a
reasonable time.” See Jurisdiction of United States Magistrates, Hearings on S.
1283 before the Subcommittee on Improvements in Judicial Machinery of the
Senate Committee on the Judiciary, 94th Cong., 1st Sess., 24 (1975)(emphasis
added)(hereafter Senate Hearings). The Committee also heard Judge Metzner of the
Southern District of New York, the chairman of a Judicial Conference Committee
on the administration of the magistrate system, testify that he personally followed
that practice. See id., at 11 (“If any objections come in, . . . I review [the record]
and decide it. If no objections come in, I merely sign the magistrate's order.”). The
Judicial Conference of the United States, which supported the de novo standard of
review eventually incorporated in § 636(b)(1)(C), opined that in most instances no
party would object to the magistrate's recommendation, and the litigation would
terminate with the judge's adoption of the magistrate's report. See Senate Hearings,
at 35, 37. Congress apparently assumed, therefore, that any party who was
dissatisfied for any reason with the magistrate's report would file objections, and
those objections would trigger district court review. There is no indication that
Congress, in enacting § 636(b)(1)(C), intended to require a district judge to review
a magistrate's report to which no objections are filed. It did not preclude treating
the failure to object as a procedural default, waiving the right to further
consideration of any sort. We thus find nothing in the statute or the legislative
Pevehouse v. Scibana has persuasive value with respect to a material issue, and will assist the Court
in its disposition of the matters now before it.
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history that convinces us that Congress intended to forbid a rule such as the one
adopted by the Sixth Circuit.
Thomas v. Arn, 474 U.S. at 150-52 (emphasis in original).
The Tenth Circuit also notes, “however, that ‘[t]he waiver rule as a procedural bar need not
be applied when the interests of justice so dictate.’” One Parcel, 73 F.3d at 1060 (quoting Moore
v. United States, 950 F.2d 656, 659 (10th Cir.1991)(“We join those circuits that have declined to
apply the waiver rule to a pro se litigant's failure to object when the magistrate's order does not
apprise 	the 	pro 	se 	litigant 	of 	the 	consequences 	of 	a 	failure 	to 	object 	to 	findings 	and
recommendations.”). 	Cf. Thomas v. Arn, 474 U.S. at 154 (noting that, while “[a]ny party that
desires plenary consideration by the Article III judge of any issue need only ask,” a failure to object
“does not preclude further review by the district judge, sua sponte or at the request of a party, under
a de novo or any other standard”). In One Parcel, the Tenth Circuit notes that the district judge
decides sua sponte to conduct a de novo review despite the objections’ lack of specificity, but the
Tenth Circuit deems the issues waived on appeal, because waiver advances the interests underlying
the waiver rule. See 73 F.3d at 1060-61 (citing cases from other Courts of Appeals where district
courts elect to address merits despite potential application of waiver rule, but Courts of Appeals
opt to enforce waiver rule).
Where a party files timely and specific objections to the Magistrate Judge's PFRD, on
“dispositive motions, the statute calls for a de novo determination, not a de novo hearing.” United
States v. Raddatz, 447 U.S. 667, 674 (1980). “[I]n providing for a ‘de novo determination’ rather
than de novo hearing, Congress intended to permit whatever reliance a district judge, in the
exercise of sound judicial discretion, chose to place on a magistrate judge's proposed findings and
recommendations.” United States v. Raddatz, 447 U.S. at 676, (quoting 28 U.S.C. § 636(b) and
citing Mathews v. Weber, 423 U.S. 261, 275 (1976)). The Tenth Circuit requires a “district court
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to 	consider 	relevant 	evidence 	of 	record 	and 	not 	merely 	review 	the 	magistrate 	judge's
recommendation” when conducting a de novo review of a party's timely, specific objections to the
magistrate judge's report. In re Griego, 64 F.3d 580, 583-84 (10th Cir. 1995). “When objections
are made to the magistrate's factual findings based on conflicting testimony or evidence . . . the
district court must, at a minimum, listen to a tape recording or read a transcript of the evidentiary
hearing.” Gee v. Estes, 829 F.2d 1005, 1008-09 (10th Cir. 1987).
A district court must “clearly indicate that it is conducting a de novo determination” when
a party objects to the Magistrate Judge's report “based upon conflicting evidence or testimony.”
Gee v. Estes, 829 F.2d at 1009. On the other hand, a district court fails to meet the requirements
of 28 U.S.C. § 636(b)(1) when it indicates that it gave “considerable deference to the magistrate's
order.” Ocelot Oil Corp. v. Sparrow Indus., 847 F.2d 1458, 1464 (10th Cir. 1988). A district court
need not, however, “make any specific findings; the district court must merely conduct a de novo
review of the record.” Garcia v. City of Albuquerque, 232 F.3d 760, 766 (10th Cir.2000). “[T]he
district court is presumed to know that de novo review is required. Consequently, a brief order
expressly stating the court conducted de novo review is sufficient.” 	Northington v. Marin, 102
F.3d 1564, 1570 (10th Cir. 1996)(citing In re Griego, 64 F.3d at 583-84). “[E]xpress references to
de novo review in its order must be taken to mean it properly considered the pertinent portions of
the record, absent some clear indication otherwise.” Bratcher v. Bray-Doyle Indep. Sch. Dist. No.
42, 8 F.3d 722, 724 (10th Cir. 1993). The Tenth Circuit holds that a district court properly conducts
a de novo review of a party's evidentiary objections when the district court's “terse” order contains
one sentence for each of the party's “substantive claims” and does “not mention his procedural
challenges to the jurisdiction of the magistrate to hear the motion.” Garcia v. City of Albuquerque,
232 F.3d at 766. The Tenth Circuit explains that brief district court orders that “merely repeat[ ]
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the language of § 636(b)(1) to indicate its compliance” are sufficient to demonstrate that the district
court conducts a de novo review:
It is common practice among district judges in this circuit to make such a statement
and adopt the magistrate judges' recommended dispositions when they find that
magistrate judges have dealt with the issues fully and accurately and that they could
add little of value to that analysis. We cannot interpret the district court's statement
as establishing that it failed to perform the required de novo review.
In re Griego, 64 F.3d at 584.
Notably, because “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,” United States v. Raddatz, 447 U.S. at 676 (emphasis omitted), a district court
“may accept, reject, or modify, in whole or in part, the findings or recommendations made by the
magistrate,” 28 U.S.C. § 636(b)(1). See Bratcher v. Bray-Doyle Indep. Sch. Dist. No. 42, 8 F.3d
at 724-25 (holding that the district court's adoption of the Magistrate Judge's “particular
reasonable-hour estimates” is consistent with the de novo determination that 28 U.S.C. § 636(b)(1)
and United States v. Raddatz require).
Where no party objects to the Magistrate Judge's PFRD, the Court reviews, as a matter of
course and in the interests of justice, the Magistrate Judge's recommendations. In Pablo v. Soc.
Sec. 	Admin., 	No. 	CIV 	11-0132 	JB/ACT, 	2013 	WL 	1010401 	(D.N.M. 	February 	27,
2013)(Browning, J.), the plaintiff fails to respond to the Magistrate Judge's PFRD, and thus waives
his right to appeal the recommendations, but the Court nevertheless conducts a review. See 2013
WL 1010401, at *1, *4. 	The Court generally does not, however, “review the PFRD de novo,
because the parties have not objected thereto, but rather review[s] the recommendations to
determine whether they are clearly erroneous, arbitrary, obviously contrary to law, or an abuse of
discretion.” Pablo v. Soc. Sec. Admin., 2013 WL 1010401, at *4. 	The Court, thus, does not
determine independently what it would do if the issues had come before the Court first, when there
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is no objection, but rather adopts the PFRD where “‘the Court cannot say that the Magistrate
Judge's recommendation . . . is clearly erroneous, arbitrary, obviously contrary to law, or an abuse
of discretion.’” Pablo v. Soc. Sec. Admin., 2013 WL 1010401, at *3 (quoting Workheiser v. City
of Clovis, No. CIV 12–0485 JB/GBW, 2012 WL 6846401, at *3 (D.N.M. December 28,
2012)(Browning, J.). See Alexandre v. Astrue, No. CIV 11-0384 JB/SMV, 2013 WL 1010439, at
*4 (D.N.M. February 27, 2013)(Browning, J.)(“The Court rather reviewed the findings and
recommendations . . . to determine if they are clearly erroneous, arbitrary, obviously contrary to
law, or an abuse of discretion. The Court determines that they are not, and will therefore adopt the
PFRD.”); Trujillo v. Soc. Sec. Admin., No. CIV 12-1125 JB/KBM, 2013 WL 1009050, at *5
(D.N.M. February 28, 2013)(Browning, J.)(adopting the proposed findings and conclusions, and
noting: “The Court did not review the ARD de novo, because Trujillo has not objected to it, but
rather reviewed the . . . findings and recommendation to determine if they are clearly erroneous,
arbitrary, obviously contrary to law, or an abuse of discretion, which they are not.”). This review,
which is deferential to the Magistrate Judge's work when there is no objection, nonetheless
provides some review in the interest of justice, and seems more consistent with the waiver rule's
intent than no review at all or a full-fledged review. Accordingly, the Court considers this standard
of review appropriate. See Thomas v. Arn, 474 U.S. at 151 (“There is nothing in those Reports,
however, that demonstrates an intent to require the district court to give any more consideration to
the magistrate's report than the court considers appropriate.”). The Court is reluctant to have no
review at all if its name is going at the bottom of the order adopting the Magistrate Judge's PFRD.
LAW REGARDING 8 U.S.C. § 1225
Before jumping to § 1225(b)(2), it is important to zoom to 30,000 feet or more, and look
at the United States and § 1225 as a whole. The United States is the third-largest country in terms
of land mass, and it has an approximately 5,525-mile border with Canada, see U.S. Department of
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Homeland Security, Considerations for United States -- Canada Border Traffic Disruption
Management, at 2 (2012), and 1,954-mile border with Mexico, U.S. Customs and Border
Protection, Smart Wall Map, https://www.cbp.gov/border-security/along-us-borders/smart-wall-
map (last visited Jan. 1, 2026). Other entry points are Puerto Rico, the United States Virgin Islands,
Guam, and other island territories. See U.S. Department of the Interior, Insular Areas of the United
States 	and 	Freely 	Associated 	States 	(last 	visited 	Jan. 	1, 	2026),
https://www.doi.gov/library/internet/insular.3 In addition, aliens may seek entry into the United
States in many ways, including stowing away in vehicles, and at many places, like the waters of
the Rio Grande or the Arizona deserts. 	See Fact Sheet, Modes of Entry for the Unauthorized
migrant Population, Pew Research Center (May 22, 2006), https://www.pewresearch.org/race-and-
ethnicity/2006/05/22/modes-of-entry-for-the-unauthorized-migrant-population/.
Each day the United States Customs and Border Protection (“CBP”) must process over a
million individuals. U.S. Customs and Border Protection, On a Typical Day in Fiscal Year 2024,
CVP . . ., (“2024 CBP Statistics”), https://www.cbp.gov/newsroom/stats/typical-day-fy2024 (last
visited Jan. 8, 2025)(stating that CBP processes “1,150,387 passengers and pedestrians” on a
typical day).4 That figure encompasses “4,267 nationwide enforcement encounters between ports
3 	Other 	notable 	United 	States 	territories 	include 	the 	American 	Samoa 	and 	the
Commonwealth of the Norther Mariana Islands. See U.S. Department of the Interior, Insular Areas
of the United States and Freely Associated States://www.doi.gov/library/internet/insular (last
visited Jan. 1, 2026), https.
4 The CBP does not just process individuals. On a typical day, CBP processes “3.8 million
de minimis shipments”; “88,582 truck, rail, and sea containers”; and “270,800 incoming privately
owned vehicle.” 2024 CBP Statistics. De minimis shipments are articles free of duty and of any
tax imposed on or by reason of importation, because the retail value in the country of shipment
does not exceed $800.00. 	See U.S. Custom and Boarder Protection, Section 321 Programs, the
Trade 	Facilitation 	and 	Trade 	Enforcement 	Act, 	Trade, 	https://www.cbp.gov/trade/trade-
enforcement/tftea/section-321-programs (last visited Jan. 28, 2026)(citing 19 U.S.C. § 1321).
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of entry” each day and “3,682 nationwide enforcement encounters at ports of entry” each day.
2024 CBP Statistics.5 Extrapolating these numbers mean that, in 2024, CBP encounters over 400
million passengers and pedestrians, and, of those, there are almost three million enforcement
“encounters,” or 0.69% of the arriving people, where the individual is not a citizen or does not
have a lawful reason for entering the country.
In contrast to the CBP, which conducts screening at a scale involving hundreds of millions
of arriving individuals, the Enforcement and Removal Operations (“ERO”), within the United
States Immigration and Customs Enforcement (“ICE”), operates in an enforcement environment
with lower volume.6 In 2024, ICE makes approximately 179,282 arrests, of which the ERO makes
“113,431” administrative arrests, including “33,243” “at-large” arrests. 2024 ICE Report at 2-3.7
The 	difference 	in 	volume 	drives 	the 	practical 	reality 	between 	inspections 	and 	removal
determinations. 	The scale and immediacy of inspection and admission determinations justify
rapid, on-the-spot judgments that may be based on incomplete information. Mandatory removal
5 “Enforcement encounters” include U.S. Border Patrol (“USBP”) Title 8 Apprehensions,
Office of Field Operations (“OFO”) Title 8 Inadmissibles, and Title 42 Expulsions, and this pharse
does not include citizens and individuals CBP admit through other lawful means. 	See CBP,
Nationwide 	Encounters 	Fiscal 	Year 	2025, 	https://www.cbp.gov/newsroom/stats/nationwide-
encounters-fy2025 (last visited Jan. 9, 2025).
6 The Homeland Security Act of 2002 “created ICE by merging the investigative and
interior enforcement elements of the former U.S. Customs Service and the Immigration and
Naturalization Service.” ICE, Annual Report Fiscal Year 2024, at 8 (2024)(“2024 ICE Report”).
Within ICE, the ERO’s mission is to protect “the homeland by arresting and removing noncitizens
who undermine the safety of U.S. communities and the integrity of U.S. immigration laws . . . .
[A]nd its primary areas of focus are interior enforcement operations, management of the agency’s
detained and non-detained populations, and removal efforts.” 2024 ICE Report at 9. \
7 Administrative arrests occur when the ERO arrests an alien for a violation of the INA
with or without a criminal history. See 2024 ICE Report at 15. At-large arrests, which are a subset
of administrative arrests, occur when the ERO arrests an alien “within the community.” 2024 ICE
Report at 15. 	In contrast to at-large arrests, “custodial arrests” occur when law enforcement
transfers custody of an alien in jail or prison to the ERO. 2024 ICE Report at 15.
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and deportation decisions, by contrast, carry greater consequence, and therefore lack the same
justification for summary determinations.
Courts often are quick to criticize Congress -- the most important political branch in our
democratic government -- for the way it writes laws. Given the magnitude of writing a statute that
governs the inspection of every citizen and alien’s entry into the United States, the Court
approaches 	the 	task 	of 	interpreting 	Congress’ work 	with 	an 	appreciation 	for 	the 	task’s
extraordinary complexity. 	Congress does not write §§ 1225 and 1226 against a small or static
backdrop. 	They reflect Congress’ effort to regulate admission decisions across vast borders,
innumerable entry points, and an enormous volume of daily inspections.
1. 	History of 8 U.S.C. § 1225.
In 1996, Congress passes the Illegal Immigration Reform and Immigrant Responsibility
Act of 1996, 110 Stat. 3009-546 (“IIRIRA”), which amends the Immigration and Nationality Act,
66 Stat. 166 (“INA”). Reno, 525 U.S. at 473. The legislative history indicates that, in enacting
IIRIRA, Congress seeks to “strengthen and tighten” immigration laws, addressing two interrelated
concerns. Arevalo v. Ashcroft, 344 F.3d 1, 4 (1st Cir. 2003). First, Congress identifies a structural
inequity in the pre-1996 regime where aliens who avoid ports of entry and enter the United States
unlawfully receive more extensive procedural protections in deportation proceedings than those
who present themselves for inspection through lawful channels. See Hing Sum v. Holder, 602 F.3d
1092, 1100 (9th Cir. 2010)(“Hing Sum”)(discussing that the IIRIRA eliminates the “‘entry
doctrine’” where aliens who enter the United States “without inspection could take advantage of
the greater procedural and substantive rights affording in deportation proceedings, while aliens
who presented themselves at a port of entry for inspection are subject to more summary exclusion
proceeding”). Second, Congress confronts a problem of administrative scale. See Am. Immigr.
Laws. Ass’n v. Reno, 199 F.3d 1352, 1354 (D.C. Cir. 2000)(“ Am. Immigr. Laws. Ass’n”). 	By
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1996, immigration officers are conducting inspections in the tens of millions annually, yet existing
law permits broad opportunities to contest admissibility determinations through hearings,
producing delay and strain on limited adjudicatory resources. See Am. Immigr. Laws. Ass’n, 199
F.3d at 1354-55.8 Congress enacts the IIRIRA to correct both the inequity in procedural treatment
and the practical burden that the inspection system imposes by amending the INA to eliminate its
definition of “entry” and by adding to § 1225 expedited removal proceedings.
a. 	Applicants for Admission.
The IIRIRA eliminates a distinction between aliens who are applicants for admission and
aliens present in the United States. 	See Succar v. Ashcroft, 394 F.3d 8, 12 (1st Cir.
2005)(“Succar”)(stating that aliens are either “(a) applicants for admission and (b) non-citizens
present in the United States who had previously made an entry into the country either with, or
without, an inspection”). For admission and removal, lawful admission -- not entry -- is now the
8 The INA defines an immigration officer as “any employee or class of employees of the
Service or of the United States designated by the Attorney General, individually or by regulation,
to perform the functions of an immigration officer specified by this chapter or any section of this
title.” 8 U.S.C. §1101(a)(18). The Code of Federal Regulations defines an “immigration officer”
as:
[E]mployees of the Department of Homeland Security, including senior or supervisory
officers of such employees, designated as immigration officers authorized to exercise the
powers and duties of such officer as specified by the Act and this chapter I: aircraft pilot,
airplane 	pilot, 	asylum 	officer, 	refugee 	corps 	officer, 	Border 	Patrol 	agent, 	contact
representative, 	deportation 	officer, 	detention 	enforcement 	officer, 	detention 	officer,
fingerprint specialist, forensic document analyst, general attorney (except with respect to
CBP, only to the extent that the attorney is performing any immigration function),
helicopter pilot, immigration agent (investigations), immigration enforcement agent,
immigration information officer, immigration inspector, immigration officer, immigration
services officer, investigator, intelligence agent, intelligence officer, investigative assistant,
special agent, other officer or employee of the Department of Homeland Security or of the
United States as designated by the Secretary of Homeland Security as provided in 8 C.F.R.
§ 2.1.
8 C.F.R. § 1.2
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defining 	concept. 	See 	1 	Ira 	J. 	Kurzban, 	Immigration 	Law 	Sourcebook 	73 	(18th 	ed.
2022)(“Kurzban”). 	Entry is less important with Congress’ enactment of the IIRIRA, in which
Congress strikes the definition for “entry” from the INA and replaces entry with a definition of
who is an applicant for admission. Kurzban, supra, at 73. By eliminating the definition of “entry,”
and replacing “entry” with the terms “admission” and “admitted,” Congress “re-characterize[s]
aliens who are present in the United States, but who have not been inspected and admitted” as
“applicants for admission.” Succar, 394 F.3d at 13. Congress defines admission as the “lawful
entry of the alien into the United States after inspection and authorization by an immigration
officer.” 8 U.S.C. § 1101(a)(13)(A).
The re-characterization is important, because, before the IIRIRA, only “applicants for
admission” are subject to “exclusion proceedings,” but aliens present in the country without an
inspection are subject to “deportation proceedings.” 	Succar, 394 F.3d at 12-13. 	See Landon v.
Plasencia, 459 U.S. 21, 25 (1982)(“The deportation hearing is the usual means of proceeding
against an alien already physically in the United States, and the exclusion hearing is the usual
means of proceeding against an alien outside the United States seeking admission.”). 	Aliens
subject to deportation proceedings are given more procedural protections than those subject to
exclusion proceedings. See, e.g., Landon v. Plasencia, 459 U.S. 21, 25-26 (1982)(discussing the
differences in the two proceedings, including the right of appeal for deportation proceedings but
not in exclusion proceeding). Specifically, deportable aliens are “entitled [to] a hearing before a
special inquiry officer in which the individual had the right to be represented, to examine the
government’s evidence, and to present evidence on his or her behalf.” Make The Rd. New York
v. Wolf, 962 F.3d 612, 618 (D.C. Cir. 2020)(“Make the Road”). The distinction that immigration
law historically draws between “deportation proceedings,” which concern the removal of aliens
already within the United States, and “exclusion proceedings,” which concern the prevention of
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entry, reflect the long-recognized principle that “the Due Process Clause applies to all ‘persons’
within the United States, including aliens, regardless of whether their presence is lawful, unlawful,
temporary, or permanent.” 	Zadvydas v. Davis, 533 U.S. 678, 693 (2001)(“Zadvydas”)(quoting
U.S. Const. amend. XIV, § 1, and citing Plyler v. Doe, 457 U.S. 202, 210 (1982)); Mathews v.
Diaz, 426 U.S. 67, 77 (1976); Kwong Hai Chew v. Colding, 344 U.S. 590, 596-598, and n.5 (1953);
Yick Wo v. Hopkins, 118 U.S. 356, 369 (1886)). With IIRIRA’s enactment, Congress eliminates
the dual system of deportation and exclusion proceedings, and replaces the dual system with the
universal “removal proceedings,” under which immigration officers process all aliens who are
applicants for admission. Succar, 394 F.3d at 13.
Within the removal proceedings’ current umbrella, Congress designates certain aliens as
subject to “expedited” removal and other aliens subject to removal under § 1229a, “the usual
removal 	process.” 	Dep’t 	of 	Homeland 	Sec. 	v. 	Thuraissigiam, 	591 	U.S. 	103, 	108-09
(2020)(“Thuraissigiam”). Similar to the previous “deportation proceedings,” “[t]he usual removal
process involves an evidentiary hearing before an immigration judge, and at that hearing an alien
may attempt to show that he or she should not be removed.” 	Thuraissigiam, 591 U.S. at 108.
Under IIRIRA’s expedited removal provision, immigration officers “shall order the alien removed”
if the immigration officer determines that the alien is inadmissible, “because she does not have a
valid entry document or other suitable travel document, or because she has obtained a visa through
misrepresentation.” Make the Road, 962 F.3d at 619 (citing 8 U.S.C. § 1225(b)(1)(A)(i)). Under
the expedited removal processes, there is no hearing and no opportunity for the alien to present
evidence. 	See Make the Road, 962 F.3d at 619 (stating that, after the immigration officers’
determination, “all that stands between that individual and removal is a paper review by the
officer’s supervisor”). 	Aliens applying for asylum or claim a fear of prosecution are an exception
to expedited removal proceedings. See Thuraissigiam, 591 U.S. at 109 (“If an applicant ‘indicates
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either an intention to apply for asylum’ or ‘a fear of persecution,’ the immigration officer ‘shall
refer the alien for an interview by an asylum officer.’”)(quoting 8 U.S.C. §§ 1225(b)(1)(A)(i)-(ii)).
Based on the asylum officer’s determination, an arriving alien either receives “‘full consideration
of his asylum claim in a standard removal hearing,” Thuraissigiam, 591 U.S. at 110 (quoting 8
C.F.R. § 208.30(f)); see 8 U.S.C. § 1225(b)(1)(B)(ii)); or the expedited removal proceedings of 8
U.S.C. § 1225(b)(1)), see Thuraissigiam, 591 U.S. at 110 (stating that “all that an alien must show
to avoid expedited removal is a ‘credible fear’”)(quoting 8 U.S.C. § 1158(b)(1)(A)).
b. 	Expedited Removal
Thus, with IIRIRA’s passage, Congress closes the procedural anomaly of the “entry
doctrine,” Hing Sum, 602 F.3d at1100, and gives immigration officers the tools to process the
“million[s of] primary inspections” occurring at the border, Am. Immigr. Laws. Ass’n, 199 F.3d at
1355. Congress passes the IIRIRA with the expedited removal provisions to address the practical
reality that large volumes of “arriving” aliens are overwhelming the usual removal processes. Am.
Immigr. Laws. Ass’n, 199 F.3d at 1355. 	Congress therefore empowers immigration officers to
resolve straightforward inadmissibility determinations quickly where the alien “indisputably” has
no authorization to be admitted into the United States. 	H.R. Conf. Rep. No.. 104–828, at 209
(1996)(“House Report”)(stating that the “purpose of the provisions [paragraph (b)(1)] is to
expedite the removal from the United States of aliens who indisputably have no authorization to
be admitted to the United States . . . .”).
Furthermore, “[n]ew paragraph (b)(2) provides that an alien determined to be inadmissible
by an immigration officer (other than an alien subject to removal under paragraph (b)(1), or an
alien crewman or stowaway) shall be referred for a hearing before an immigration judge under
new section 240.” 	House Report at 209. The language “other than an alien subject to removal
under paragraph (b)(1)” in § 1225(b)(2)(A) is significant. 	House Report at 209. 	Section
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1225(b)(1) authorizes immigration officers to conduct expedited removal for specified categories
of arriving aliens whom the officer determines to be inadmissible for reasons including fraud or
misrepresentation, see 8 U.S.C. § 1182(a)(6)(C), or a lack of valid entry documents, see 8 U.S.C.
§ 1182(a)(7). Where the immigration officer makes such a determination, the immigration officer
may order removal without further hearing or review, and impose the attendant statutory
consequences, including a bar on reentry. See 8 U.S.C. § 1182(a)(9)(A)(i) (stating that any “alien
who has been ordered removed under section 1225(b)(1) of this title . . . who again seeks admission
within 5 years of the date of such removal . . . is inadmissible”).
2. 	Structure of 8 U.S.C. § 1225.
In interpreting a Congressional statute, the plain language that Congress writes is the most
important, but the statute’s structure can help the Court interpret the statute’s words. 	Congress
titles § 1225: “Inspection by immigration officers; expedited removal of inadmissible arriving
aliens; referral for hearing.” 8 U.S. C. § 1225.9 Thus, from the title, the reader can surmise that
9 The United States Code contains titles Congress codifies as “positive law,” which
Congress enacts as a whole, and titles Congress does not codify, which the Office of the Law
Revision Counsel of the House of Representatives of the United States compiles from various
congressional enactments. See United States v. DeLeon, 406 F. Supp. 3d 1129, 1170 n.17 (D.N.M.
2019)(Browning, J.)(“DeLeon”)(citing 1 U.S.C. § 204(a); 2 U.S.C. §§ 285, 285b). 	The term
positive law has both a general meaning and a specialized meaning in the context of the United
States Code. See Office of the Law Revision Counsel United States Code, The Term “Positive
Law,” in Positive Law Codification, (“Positive Law”) https://uscode.house.gov/codification
/term_positive_law.htm (last visited Jan. 28, 2026). In the United States Code context positive law
refers specifically to Code titles that Congress enacts as complete statutory titles through the of a
codification bill that repeals prior enactments and restates them in organized form. See Positive
Law. 	Titles Congress enacts piece by piece are non-positive-law titles, which are editorial
compilations of statutes assembled by the Office of the Law Revision Counsel. See Positive Law.
Although Congress does not enact non-positive-law titles themselves, Congress does enact the
underlying statutes they contain. 	See Positive Law. 	Thus, all provisions in the U.S. Code are
positive law in the general sense, but only some titles are positive law in the technical codification
sense. Titles Congress codifies are authoritative expositions of the law whereas uncodified titles
are prima facie evidence of the law. 	See DeLeon, 406 F. Supp. 3d at 1170 n.7 (citing 1 U.S.C.
§ 204(a)).
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they are about: (i) inspection; (ii) expedited removal of arriving aliens; and (iii) referral for
hearings. The Court should be slow to read a lot more into § 1225 that what the title details.
Section 1225 has four subparts: (i) “Inspection,” 8 U.S.C. § 1225(a); (ii) “Inspection of
applicants for admission,” 8 U.S.C. § 1225(b); (iii) “Removal of aliens inadmissible on security
and related grounds,” 8 U.S.C. § 1225(c); and (iv) “Authority related to inspections,” 8 U.S.C. §
1225(d). 	The Court views § 1225’s organization as reflecting a statutory design to address
immigration officer’s inspections, the expedited removal process, and the process of removing an
alien after a hearing. 	Each subpart addresses a discrete component of the inspection process,
moving from examination to summary removal determinations and then to the ancillary powers
necessary to carry out those functions.
a. 	8 U.S.C. § 1225(a): Inspection.
As the title of § 1225 promises, Congress labels the first section “Inspection.” 8 U.S.C. §
1225(a). 	The Court does not quickly move past the word “Inspection.” 	8 U.S.C. § 1225(a).
“Inspection” denotes the “act of inspection,” or “a checking or testing of an individual against
established 	standards,” 	Inspection, 	Merriam-Webster.com 	Dictionary, 	Merriam-Webster,
Congress codifies § 1225’s heading -- including subheadings -- in September, 1996. See
Omnibus Consolidated Appropriations Act of 1997, PL 104-208, September 30, 1996, 110 Stat
3009. 	Congress, thus, enacts 8 U.S.C. § 1225’s heading, which is a permissible guide when
construing ambiguous statutory text. 	See Immigration & Naturalization Serv. v. Nat’l Ctr. for
Immigrants’ Rights, Inc., 502 U.S. 183, 189 (1991)(“[W]e have stated that the title of a statute or
section can aid in resolving an ambiguity in the legislation’s text.”); Mead Corp. v. Tilley, 490 U.S.
714, 723 (1989)(resolving ambiguity of 29 U.S.C.§ 1344 by looking at its title); Brotherhood of
R.R. Trainmen v. Baltimore & Ohio R.R., 331 U.S. 519, 528-29 (1947)(“[H]eadings and titles are
not meant to take the place of the detailed provisions of the text. . . . For interpretive purposes,
they are of use only when they shed light on some ambiguous word or phrase. They are but tools
available for the resolution of a doubt.”); S. Furniture Leasing, Inc. v. YRC, Inc., 989 F.3d 1141,
1150 (10th Cir. 2021)(“To be sure, ‘the title of a statute or section can aid in resolving an ambiguity
in the legislation's text.’”)(quoting Immigration & Naturalization Serv. v. Nat’l Ctr. for Immigrants’
Rights, Inc., 502 U.S. at 189).
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https://www.merriam-webster.com/dictionary/inspection. (last visited on Jan. 17, 2026), and to
“inspect” means “to view closely in critical appraisal: look over” or “to examine officially,”
Inspecting, 	Merriam-Webster.com 	Dictionary, 	Merriam-Webster, 	https://www.merriam-
webster.com/dictionary/inspecting. (last visited on Jan. 17, 2026). Inspection’s ordinary meaning
implies an individualized encounter between an immigration officer and a single alien -- often an
officer face-to-face with an alien for evaluation purposes. The word “inspection” is difficult to
reconcile with mass or abstract enforcement. In addition to focusing on the words that the statute
uses, it is also important to note what words § 1225 does not use. Section 1225 does not speak in
terms of “arrest” or “apprehension.” Those concepts are present in the INA, but their absence from
§ 1225’s title and text indicates that Congress places those powers elsewhere, and § 1225 is in a
distinct procedural posture -- often face-to-face inspection and examination at the threshold of
entry.
Section 1225(a) gives the definition for five inspection terms that the statute uses. Section
1225(a)(1)’s opening clause is foundational to the statute’s operation, and Congress emphasizes its
breadth through deliberate phrasing. Section 1225(a)(1) defines aliens who are “treated as
applicant[s] for admission.” 	8 U.S.C. § 1225(a)(1). 	For purposes of this chapter, immigration
officers treat aliens as applicants for admission if they are:
An alien present in the United States who has not been admitted or who arrives in
the United States (whether or not at a designated port of arrival and including an alien who
is brought to the United States after having been interdicted in international or United
States waters) shall be deemed for purposes of this chapter an applicant for admission.
8 U.S.C. § 1225(a)(1). Notably, an alien is an “applicant for admission” if the alien is “present in
the United States” and is “not admitted.” 8 U.S.C. § 1225(a)(1). The definition also covers aliens
“who arrive[] in the United States” regardless whether they arrive at a designated port of entry. 8
U.S.C. § 1225(a)(1). With this scope, Congress indicates that § 1225 treats almost all aliens are
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as “applicants for admission.” It is hard to image how Congress could have written § 1225(a)(1)
more broadly.
In § 1225(a)(1), the United States is passive. 	The United States does not have to do
anything -- such as effecting a stop -- to impose the status of “applicant for admission” upon an
alien. 8 U.S.C. § 1225(a)(1). An alien “present” in the United States who has not been admitted
or who arrives in the United States is, by law, an applicant for admission. At the same time, §
1225(a) indicates that the aliens whom the United States treats as “applicants for admission” has
subgroups. 8 U.S.C. § 1225(a)(2). For stowaways, who are aliens “present in the United States
who [have] not been admitted” or who are aliens “who arrive[] in the United States,” and thus an
applicant for admission, the statutes quickly states they are “not eligible to apply for admission or
to be admitted.” 8 U.S.C. § 1225(a)(2) (brackets added). Moreover, § 1225(a)(2) states “[i]n no
case may a stowaway be considered an applicant for admission or [be considered] eligible for a
hearing under section 1229a.” 	8 U.S.C. § 1225(a)(2). 	Section 1225(a)(3), titled “Inspection,”
states all “aliens (including alien crewmen) who are applicants for admission or otherwise seeking
admission or readmission to or transit through the United States shall be inspected by immigration
officers.” 8 U.S.C. § 1225(a)(3). The statute use’s of “or otherwise seeking admission” suggests
that aliens who are treated as applicant for admission are not coterminous with aliens who are
“seeking admission.” 8 U.S.C. § 1225(a)(3). Thus, § 1225(a) suggest that not all applicants for
admission can apply for admission or are seeking admission. 	The Court notes that § 1225(a)
continues by defining “Withdrawal of application for admission” and “Statements.” 8 U.S.C. §§
1225(a)(4)-(5).10 Although § 1225 does not define “admission” or “admitted,” § 1101(a)(13)(A)
10 Section 1225 defines the withdrawal of application for admission by stating an “alien
applying for admission may, in the discretion of the Attorney General and at any time, be permitted
to withdraw the application for admission and depart immediately from the United States.” 	8
U.S.C. § 1225(a)(4).
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defines those terms as, “with respect to an alien, the lawful entry of the alien into the United States
after inspection and authorization by an immigration officer.” 8 U.S.C. § 1101(a)(13)(A).
Section 1225(a) frames § 1225’s scope by situating the section within an inspection-based
posture. Congress specifies which aliens are subject to inspection -- those seeking admission or
readmission -- and identifies those who are not, including stowaways. 	The provision further
contemplates that an applicant for admission may withdraw the application and “depart
immediately” from the United States, underscoring the section’s focus on entry-stage judgments.
8 U.S.C. § 1225(a)(4). By anchoring § 1225 in inspection concepts that Congress defines, it signals
that an inspection at the threshold of entry triggers the powers and procedures that follow. Section
1225(a) thus presupposes an alien whom the United States has not admitted, but is applying for
admission, free to abandon the inspection process and depart without restraint.
b. 	8 U.S.C. § 1225(b): Inspection of Applicants for Admission.
Congress titles § 1225(b): “Inspection of applicants for admission.” 8 U.S.C. § 1225(b).
11 In providing the process for inspecting “applicants for admission,” Congress begins with
subparagraph (b)(1), which governs the inspection of “aliens arriving in the United States and
certain other aliens who have not been admitted or paroled.” 	8 U.S.C. § 1225(b)(1). 	Section
1225(b)(1) is the process for the “expedited” removal that Congress mentions in the title, even
though the word “expedited” appears nowhere in subparagraph (b)(1). 	Congress allows §
1225(b)(1) to apply to “certain other aliens,” and subparagraph § 1225(b)(2) governs the inspection
of “other aliens.” 8 U.S.C. § 1225(b)(2). As the Court discusses below, all aliens are run through
11 Federal law makes entering the United States without inspection a misdemeanor. See 8
U.S.C. § 1325. See United States v. Vencomo-Reyes, No. CR 11-2563 JB, 2011 WL 6013546, *10
n.8 (D.N.M. Nov. 28, 2011)(Browning, J.)(stating that under “federal immigration law, it is not a
felony to be in the United States illegally. Although it is a misdemeanor the first time an individual
enters the Unted States without inspection” (citing 8 U.S.C. § 1325(a))).
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§ 1225 (b)(1) first, and if an alien is an “arriving alien” or a “certain other alien” in §
1225(b)(1)(A)(iii), the alien never becomes an “other alien” in § 1225(b)(2). 	8 U.S.C. §
1225(b)(2)(ii) (“Subsection (A) shall not apply to an alien -- (ii) to whom paragraph (1) applies . .
. .”). 	Section 1225(b)’s remaining provisions establish enforcement and review mechanisms,
including authorization for State attorneys general to bring civil actions for harms arising from
detention or removal under subparagraphs (b)(1) and (b)(2), see 8 U.S.C. § 1225(b)(3), as well as
procedures for challenging determinations that immigration officers make, see 8 U.S.C. §
1225(b)(4). The heart of this dispute, in part, concerns the relationship between § 1225(b)(1) and
§ 1225(b)(2), and, given its significance, the Court describes these provisions in greater detail.
Section 1225(b)(1)’s title, “Inspection of aliens arriving in the United States and certain
other aliens who have not been admitted or paroled,” indicates Congress intends that immigration
officers apply the following provision to two groups of aliens. 8 U.S.C. § 1225(b)(1). The two
groups of aliens are “aliens arriving in the United States”12 and “certain other aliens.” 8 U.S.C. §
1225(b)(1). Congress, after defining the class of applicants for admission subject to § 1225(b)(1),
establishes a framework for the “screening” of arriving aliens, including procedures for asylum
interviews and limitations on judicial review. 8 U.S.C. §§ 1225(b)(1)(A)-(C). Again, language is
important.
i. 	Screening of Arriving Aliens.
12 The Department of Homeland Security defines an “arriving alien” as:
Arriving alien means an applicant for admission coming or attempting to come into
the United States at a port-of-entry, or an alien seeking transit through the United States at
a port-of-entry, or an alien interdicted in international or United States waters and brought
into the United States by any means, whether or not to a designated port-of-entry, and
regardless of the means of transport.
8 C.F.R. § 1.2.
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Congress says “screening” -- not arrest, not apprehension, and not custody. 	8 U.S.C. §
1225(b)(1)(A). Merriam-Webster defines “screen” to mean “to examine methodically in order to
separate into different groups,” “to select or eliminate by a screening process,” or “to test or
examine for the presence of something,” reinforcing that § 1225(b)(1)’s use primarily is at a port
of entry, at the border, or at an immigration office where an immigration officer must methodically
separate inadmissible aliens from individuals whom Congress permits lawful entry. 	Screen,
Merriam-Webster.com 	Dictionary, 	Merriam-Webster, 	https://www.merriam-
webster.com/dictionary/screen. (last visited on Jan. 18, 2026). 	See Jennings, 583 U.S. at 285
(“Every day, immigration officials must determine whether to admit or remove the many aliens
who have arrived at an official ‘port of entry’ . . . or who have been apprehended trying to enter
the country at an unauthorized location.”). The process is about screening -- inspection driven --
and not about the arrest or apprehension of aliens. 	Furthermore, screening suggests that
immigration officers often begins the screening and inspection process in the presence of the alien,
after the alien presents to the immigration officer to verify entry documents.
ii. 	“Arriving Aliens” are the Default Group.
As the Court observes above, § 1225(b)(1) applies to two groups of aliens, and §
1225(b)(1)(A) further divides the groups into subgroups. See 8 U.S.C. § 1225(b)(1)(A). Section
1225(b)(1)(A)(i) states: “If an immigration officer determines that an alien . . . who is arriving in
the United States or [] [certain other aliens] in clause (iii) is inadmissible under 1182(a)(6)(C) or
1182(a)(7) of this title . . . the officer shall order the alien removed from the United States without
further hearing or review . . . .” 8 U.S.C. § 1225(b)(1)(A)(i). Certain other aliens include:
An alien . . . who has not been admitted or paroled into the United States, and who
has not affirmatively shown, to the satisfaction of an immigration officer, that the alien has
been physically present in the United States continuously for the 2-year period immediately
prior to the date of the determination of inadmissibility under this subparagraph.
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8 U.S.C. § 1225(b)(1)(A)(iii)(II). Taken together, these provisions identify the universe of aliens
subject to expedited removal following inspection, characterized by removal “without further
hearing or review.” 8 U.S.C. § 1225(b)(1)(A)(i).
Section 1225(b)(1)(A)(i) is the general rule, applying to aliens “arriving in the United
States,” but also to “certain other aliens” that Congress describes in “clause (iii).” 	8 U.S.C. §
1225(b)(1)(A)(i). Although Congress applies expedited removal to all aliens arriving or to whom
clause (iii) is applicable, Congress pauses expedited proceedings for aliens claiming asylum until
an asylum officer can make a determination under subparagraph (B). 	See 8 U.S.C. §
1225(b)(1)(A)(i)-(ii). 	The final provision, or the “Designation Provision,” allows the Attorney
General, now the Secretary of Homeland Security, Awe v. Napolitano, 494 F. App’x 860, 863 (10th
Cir. 2012),13 to make the general rule for arriving aliens, of expedited removal, applicable to other
groups, see Make the Road, 962 F.3d at 619.
(I). 	Certain Other Aliens: Designation Groups.
Section 1225(b)(1)(A)(i) applies to aliens inadmissible for fraud or misrepresentation, or
lack of documentation. 	See 8 U.S.C. § 1225(b)(1)(A)(i) (referencing inadmissibility under §§
1182(a)(6)(C) or 1182(a)(7)). Fraud, misrepresentation, and lack of documentation constitute only
two of several inadmissibility grounds, however. In § 1182(a) Congress enumerates other grounds,
which include, among others, health-related grounds, criminal grounds, and security-related
grounds. See 8 U.S.C. § 1182(a)(1)-(10). Read in this context, the Court reads § 1225(b)(2) as
broader than § 1225(b)(1); § 1225(b)(2) governs the inspection and processing of applicants for
13 The statute’s reference to the Attorney General reflects prior administrative structure.
See Awe v. Napolitano, 494 F. App’x 863 n.3. Congress transfers authority to commence removal
proceedings and adjudicate naturalization applications to the Secretary of Homeland Security in
2002, effective March 1, 2003. 	See Ajlani v. Chertoff, 545 F.3d 229, 231 n.2 (2d Cir. 2008);
Batalova v. Ashcroft, 355 F.3d 1246, 1248 n.1 (10th Cir. 2004). Accordingly, references to the
“Attorney General” in § 1225 now means the Secretary of Homeland Security.
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admission who fall outside the narrow subset subject to expedited removal under § 1225(b)(1),
which includes those inadmissible on grounds other than fraud or lack of documentation. See 8
U.S.C. § 1225(b)(2) (governing the inspection of “other aliens”).
(II). 	Certain Other Aliens: Physical Presence.
Section 1225(b)(1) removes from expedited removal a second category of aliens. See 8
U.S.C. § 1225(b)(1)(A)(iii)(II). 	Section 1225(b)(1)(A)(iii)(II) limits immigration officers’
application of expedited removal to “certain other aliens,” whom the United States has not
admitted or paroled into the United States, and who does not show continuous physical presence
in the country for the two-year period immediately preceding the inadmissibility determination. 8
U.S.C. § 1225(b)(1)(A)(iii)(II). 	By negative implication, Congress excludes from expedited
removal admitted aliens, paroled aliens, and aliens who can demonstrate two years of continuous
physical presence, even if they remain classified as applicants for admission under § 1225(a)(1).
See 8 U.S.C. § 1225(b)(1)(A)(iii)(II). 	The physical-presence limitation thus gives operative
content to Congress’ decision to treat certain non-admitted aliens present inside the United States
as applicants for admission for inspection purposes. 	See 8 U.S.C. § 1225(a)(1) (treating as an
applicant for admission both an arriving alien and an “alien present in the United States who has
not been admitted”).
Reading § 1225 to encompass a subset of aliens present in the United States accords not
only with the statute’s text, but also with Supreme Court guidance. In Jennings v. Rodriguez, 583
U.S. 281 (2018)(“Jennings”), the Court implicitly recognizes this structure. See 583 U.S. at 297.
Justice Alito describes § 1225(b) as applying “primarily to aliens seeking entry into the United
States.” Jennings, 583 U.S. at 297. The modifier “primarily” implies that § 1225(b) also reaches
some aliens who are not seeking entry. Aliens physically present within our borders, whom the
United States has not admitted, are not “seeking entry,” but instead are “seeking admission.” 8
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U.S.C. § 1225(b)(2)(A) (referring to an “alien seeking admission”). 	Justice Alito’s further
statement that “§ 1226 applies to aliens already present in the United States” creates no tension;
both propositions coexist comfortably under the Court’s reading of § 1225(b), which recognizes
overlapping statutory categories rather than mutually exclusive ones.
The aliens whom § 1225(b)(1)(A)(iii)(II) covers 	includes, for example, aliens whose
inspection at a port of entry is “deferred” by an immigration officer, and whom the officer
temporarily permits the alien to enter the United States pending further inspection, see 8 C.F.R. §
235.2 (“Parole for deferred inspection.”), as well as certain previously admitted aliens whose status
reverts to that of an applicant for admission upon the commission of specified offenses, see 8
U.S.C. § 1101(a)(13)(C) (stating that a lawfully admitted alien “shall not be regarded as seeking
an admission . . . unless the alien. . . . has committed an offense identified in section 1182(a)(2)).
Congress authorizes expedited removal only where the applicant for admission cannot demonstrate
two years of continuous physical presence. See 8 U.S.C. § 1225(b)(1)(A)(iii)(II). If an alien can
demonstrate two years of physical presence, they are then subject to the usual removal proceedings
under § 1229a, however, the alien remains an applicant for admission. See 8 U.S.C. § 1225(b)(2)
(stating that an applicant for admission “shall be detained for a proceeding under section 1229a”).
(III). 	Certain Other Aliens: Paroled.
At the same time, Congress distinguishes “parole into the United States,” under 8 U.S.C. §
1182(d)(5)(A), from “conditional parole” under § 1226(a), which authorizes release from
immigration custody pending removal proceedings, 8 U.S.C. § 1226(a)(2)(B). Conditional parole
does not confer entry, does not alter an alien’s status as an applicant for admission, and does not
suspend the United States’ pursuit of removal; conditional parole is similar to bail in the criminal
context. See Cruz-Miguel v. Holder, 650 F.3d 189 (2d Cir. 2011)(stating that “akin to bail release
in criminal cases, conditional parole merely permits an alien to remain at liberty based upon a
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determination 	that 	he 	poses 	no 	risk 	of 	danger 	or 	flight 	while 	his 	removal 	is 	actively
sought”)(emphasis in the original). The distinction between parole and conditional parole carries
concrete statutory consequences. 	Aliens “paroled into the United States” are not subject to
expedited removal under § 1225(b)(1). 	See 8 U.S.C. § 1225(b)(1)(A)(iii)(II).14 They may also
seek adjustment of their immigration status under § 1255(a). See 8 U.S.C. § 1255(a) (stating that
“[t]he status of an alien who was inspected and admitted or paroled into the United States . . . may
be adjusted by the Attorney General, in his discretion and under such regulations as he may
prescribe”). 	Legislative history confirms the distinction between parole and conditional parole.
See Ortega-Cervantes v. Gonzales, 501 F.3d 1111 (9th Cir. 2007)(discussing the 1960 amendment
to 1255(a)). In the 1960s, when Congress amends § 1255(a) to extend eligibility for adjustment
of immigration status to paroled aliens, it did so with reference to parole granted under 8 U.S.C. §
1182(d), not to aliens who had entered without inspection and were later released from custody
under the statutory precursor to § 1226(a). 	S.Rep. No. 86–1651 (1960), as reprinted in 1960
U.S.C.C.A.N. 3124, 3124-25, 3137 (extending § 1255 to “aliens paroled into the United States,”
but excluding those who “entered the United States surreptitiously”). This history indicates that
Congress does not understand conditional parole for aliens who entered without inspection to be
the same form of parole contemplated in § 1255 or in § 1225(b)’s exclusion from expedited
removal.
Section 1225(b)(1), though textually narrower than § 1225(b)(2), performs the operational
work within § 1225’s inspection framework. 	§ 1225(b)(1) governs the inspection of “arriving”
aliens and “certain other aliens,” including aliens present in the United States who have not been
14 The Court notes that persons who enter without inspection and are applicants for
admission can qualify for parole under § 1182, see U.S.C. § 1182(d)(5)(A), or conditional parole
under § 1226(a), see 8 U.S.C. § 1226(a)(2)(B).
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admitted or paroled, and who cannot demonstrate two years of continuous physical presence. 8
U.S.C. § 1225(b)(1)(A)(i)-(iii). By contrast, § 1225(b)(2) applies to the residual category of “other
aliens” who are applicants for admission but fall outside the expedited-removal criteria and are
therefore placed into the usual removal proceedings under § 1229a. 8 U.S.C. § 1225(b)(2). The
scale of these provisions illustrates their functional roles. In 2024, CBP conducts over 416 million
inspections at the border, see 2024 CBP Statistic, while approximately 255,000 aliens file I-485
applications, from within the United States, to adjust status to lawful permeant residence, see
Number of I-485 Applications to Register Permanent Residence or Adjust Status By Category,
Case Status, and USCIS Field Office or Service Center Location January 1, 2024 - March 31, 2024,
https://view.officeapps.live.com/op/view.aspx?src=https%3A%2F%2Fwww.uscis.gov%2Fsites%
2Fdefault%2Ffiles%2Fdocument%2Fdata%2Fi485_performancedata_fy2025_q1.xlsx&wdOrigi
n=BROWSELINK (last visited Jan. 16, 2025).15 	Roughly, these figures indicate that the
overwhelming majority of admissibility determination occur in § 1225(b)(1)’s inspection context
-- over ninety-nine percent -- while only a small fraction of applicants for admission proceed
through the more cumbersome pathway in § 1225(b)(2). 	In theory, § 1225(b)(2) covers more
categories of aliens; in practical operation, however, the United States processes most aliens
through § 1225(b)(1), and § 1225(b)(2) functions as a narrow backstop. 	This structure reflects
Congress’ intentional division between summary inspection-based determinations near the point
of entry and interior inspections where the reliability of rapid admissibility determinations is
suspect.
15 A foreign national, who is already present in the United States, generally fills out Form
I-485 to attain lawful permanent resident status. See Alicia Ward, United States Lawful Permanent
Residents: 2023, United States Department of Homeland Security at 2 (Sep. 9, 2024)(“LPR
Statistics”). Foreign nationals who live abroad or seek to enter the United States through a port of
entry do not use Form I-485. See LPR Statistics at 2.
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iii. 	“Arriving” Aliens in § 1225(b)(1).
Congress’ words are important. Section 1225 repeatedly focuses the reader on the word
“arrive” -- “arriving aliens” in the title; aliens who “arrive” in applicants for admission; and
“certain other aliens” immigration officers are to treat as if they are arriving. Merriam-Webster
defines “arrive” as an intransitive verb meaning “to reach a destination” or “to make an
appearance: to come up on the scene.” 	Arrive, Merriam-Webster.com Dictionary, Merriam-
Webster, https://www.merriam-webster.com/dictionary/arrive. 	(last visited on Jan. 18, 2026).
Congress envisions § 1225(b)(1) as generally applying to aliens who present at a port of entry upon
reaching their destination -- the United States. See 8 U.S.C. § 1225(b)(1)(A)(i) (stating the general
rule of inspection). These provisions are about applicants for admission who are seeking lawful
entry, and that can occur at the border or on the interior when an alien arrives at an immigration
office for deferred inspection or when an alien files Form I-485 to change their immigration status.
That Congress allows the Attorney General to extend this framework to “certain other aliens”
present in the United States does not change Congress’ intent that § 1225 is primarily about
inspection for lawful entry; the extension confirms it. 8 U.S.C. § 1225(b)(1)(A)(iii). Removing
any doubt, Congress repeatedly employs the present participle “arriving.”
Congress’ use of the present participle “arriving” as an adjective modifying the noun
“alien” is significant, because, in traditional grammatical terms, the present participle signals an
imperfect or continuous aspect rather than a completed action. See P. Peters, The Cambridge Guide
to English Usage 409 (2004)(explaining particles “create different aspects for the verb” either
“imperfect” or “perfect”). 	Unlike the past participle, which ordinarily conveys a completed or
passive state, the present participle is active and describes an action that is ongoing or in progress.
See P. Peters, The Cambridge Guide to English Usage 409. By choosing the active, imperfect form
“arriving alien,” Congress signals that § 1225(b)(1) applies to aliens who are in the process of
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inspection and arrival, and not to those whose entry is completed long ago and whose presence in
the United States is no longer properly understood as “arriving.”
The textual distinction between “arriving” aliens and aliens present in the interior of the
country reflects a longstanding principle of immigration law’s relationship with the Due Process
Clause. See Zadvydas, 533 U.S. 695 (“The distinction between an alien who has effected an entry
into the United States and one who has never entered runs throughout immigration law.”). As
Justice Scalia explains, the Due Process distinction “makes perfect sense: with regard to the
question of what procedures are necessary to prevent entry, as opposed to what procedures are
necessary to eject a person already in the United States.” Zadvydas, 533 U.S. at 704 (Scalia, J.,
dissenting). 	That procedural observation applies with full force here, as the statutory language
reflects our nation’s understanding of immigration law. Applicants for admission, by presenting
themselves for inspection, subject themselves to the United States immigration system. An alien
who does not seek admission through inspection is in a different procedural posture than an alien
who has started the process of lawful entry. 	That Congress makes stowaways, who attempt to
enter without submitting to lawful inspection, not eligible to apply for admission under § 1225 is
confirmation enough of the difference in procedural posture.
iv. 	Section 1225(b)(2): “Other Aliens”.
After § 1225(b)(1) carries all of that water -- dividing applicants for admission into
subgroups, specifying who is subject to expedited removal, and describing how certain aliens can
seek asylum -- it is only then that § 1225(b)(2) comes over the horizon for consideration. Section
1225(b)(2) “serves as a catchall provision that applies to all applicants for admission not covered
by § 1225(b)(1).” Jennings, 583 U.S. at 287. Congress entitles this provision “Inspection of other
aliens” and labels § 1225(b)(2)(A) the rule “In general.” Like § 1225(b)(1), it applies only to
applicants for admission, but it governs a broader universe of aliens. See Jennings, 583 U.S. at
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287 (“Section 1225(b)(2) is broader.”). 	Section 1225(b)(2) addresses the inspection of “other
aliens” that § 1225(b)(1) does not cover. 8 U.S.C. § 1225(b)(2). Congress is mindful, however,
to distinguish this group of “other aliens” in § 1225(b)(2) from the “certain other aliens” in §
1225(b)(1)(A)(iii).
“In general . . . 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 proceedings under section 1229a of this title.” 8 U.S.C. §
1225(b)(2)(A).16 	Section 1225(b) establishes two removal pathways that operate following an
16 Section 1229 is titled “Initiation of removal proceedings” and sets forth the regular
removal process of § 1229a. 8 U.S.C. § 1229. Under §§ 1229 and 1229a, the United States charges
an alien with removability, serves the alien with a notice to appear, brings the alien before an
immigration judge, permits the alien to present evidence and argument, and affords the alien Board
of Immigration Appeals review and, ultimately, allows Courts of Appeals review. 	See United
States v. Gonzalez-Fierro, 949 F.3d 512, 519 (10th Cir. 2020). Section 1229a provides for “usual
removal proceedings,” Thuraissigiam, 591 U.S. at 108-09 (discussing the usual removal
proceedings from the expedited proceedings), which differ from the expedited removal process
that § 1225(b)(1) describes. 	See 8 U.S.C. § 1229(a)(b)(4) (discussing the alien’s “rights in the
proceeding” compared with the immigration officers’ determination without further hearings).
Section 1229a is the “sole and exclusive procedure for determining whether an alien may
be admitted to the United States or, if the alien has been so admitted, removed from the United
States,” unless “otherwise specified in this chapter,” including the “Expedited removal of aliens
convicted of committing aggravated felonies,” under 8 U.S.C. § 1228. 	8 U.S.C. § 1229a(a)(3).
Although 1229a is the exclusive procedure for removal proceedings, § 1229a does not mention
“detention. 8 U.S.C. § 1229a. Section 1229 presupposes detention. See 8 U.S.C. § 1229(a)(2)(B)
(stating that “[i]n the case of an alien not in detention, a written notice shall not be required under
this paragraph if the alien has failed to provide the address required under paragraph (1)(F)”).
Accordingly, the power to detain aliens during those removal proceedings must come from outside
those sections. Indeed, the Supreme Court, in Jennings, all but confirms the authority to detain
aliens civil during these proceedings comes from §§ 1225 and 1226. See 583 U.S. 289 (“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).”).
The United States’ power to detain aliens that covers arriving aliens and “certain other
aliens” is in § 1231, which is titled “Detention and removal of aliens ordered removed.” 8 U.S.C.
§ 1231. Section 1225(b)(1) provides for “expedited removal.” 8 U.S.C. § 1225(b)(1). When an
“the officer [] order[s] the alien removed from the United States,” 8 U.S.C. § 1225(b)(1)(A), a
“removal period” starts in § 1231. 	8 U.S.C. § 1231(a)(1)(B)(i). 	Section 1231(a)(1) states that,
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immigration officer’s inspection of an applicant for admission and which apply to three classes of
aliens. The first pathway, in § 1225(b)(1), provides that, if an immigration officer determines that
an alien “arriving in the United States” or “certain other aliens” present in the country are
inadmissible, the officer orders removal without further hearing or review. 	8 U.S.C. §
1225(b)(1)(A)(i). The second pathway, in § 1225(b)(2), provides that immigration officers detain
and remove “other aliens” under § 1229a’s ordinary procedures. 8 U.S.C. § 1225(b)(2)(A). Within
this framework, § 1225(b) contemplates four classes of aliens or noncitizens: arriving aliens, see
8 U.S.C. § 1225(b)(1)(A)(i); applicants for admission present in the United States but for less than
two years, see 8 U.S.C. § 1225(b)(1)(A)(iii); applicants for admission present in the United States
for longer than two years but are seeking admission, see 8 U.S.C. § 1225(b)(2)(A), and a residual
category of other aliens, including crewmen and stowaways, whom are not eligible to apply for
admission, see 8 U.S.C. § 1225(b)(2)(B).
The statute’s language reflects an inspection-centered posture. An immigration officer’s
inspection of an alien in the posture of seeking admission triggers both § 1225(b)’s removal
“when an alien is ordered removed, the Attorney General shall remove the alien from the United
States within a period of 90 days (in this section referred to as the “removal period”).” 8 U.S.C. §
1231(a)(1)(A). Section 1231(a)(2) then discusses “Detention” and states, “In general, [d]uring the
removal period, the Attorney General shall detain the alien.” 8 U.S.C. § 1231(a)(2)(A).
As the Court discusses later, § 1226 governs apprehension and detentions of aliens. Section
1226 authorizes arrest upon warrant, and permits release on bond or conditional parole unless
mandatory detention applies. See 8 U.S.C. § 1226(a), (c). By regulation, when the United States
detains an alien under § 1226(a), the alien receives an initial bond hearing before an immigration
judge. See 8 C.F.R. §§ 236.1(d)(1), 1236.1(d)(1). The removal proceedings that the alien receives,
however, are pursuant to § 1229a.
Section 1225(b), by contrast, establishes expedited removal. Aliens subject to § 1225(b)(1)
may be ordered removed “without further hearing or review,” save for the limited credible-fear
process. 8 U.S.C. § 1225(b)(1)(A). Under § 1225(b)(2), aliens the United States detains “for a
removal proceeding” proceed under § 1229a just like those that the United States detains under §
1226. A key difference between the United States detaining an alien under § 1225(b)(2) and §
1226 is not the ultimate process the alien receives during their § 1229a proceedings, but the initial
bond hearing that applies only to § 1226 by regulation.
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pathways -- expedited removal under § 1225(b)(1) and the usual removal under § 1225(b)(2) --
and the pathways operate as alternative outcomes of the inspection process. Further confirming
the inspection posture, § 1225(a)(2) specifies that stowaways are not eligible to apply for
admission, and § 1225(b)(2)(B)(iii) correspondingly excludes stowaways from detention for non-
expedited removal proceedings. 	From this statutory pairing, i.e. the relationship between §
1225(b)(1) and § 1225(b)(2), the Court sees Congress’ intent as tying the concept of an “applicant
for admission” to inspection rather than to a freestanding status untethered from the inspection
context.
That understanding aligns with §1101’s statutory definition of “admission,” which defines
the term as “lawful entry . . . after inspection and authorization by an immigration officer.” 	8
U.S.C. § 1101(a)(13)(A). 	The relationship between “applicant for admission” and lawful
inspection also accords with § 1225(a)’s provision permitting an applicant for admission to
withdraw an application for admission and depart immediately from the United States, reflecting
Congress’ expectation that the inspection process occurs at the threshold of entry and that aliens
who do not wish to submit to that process may simply leave. 8 U.S.C. § 1225(a)(4). Outside of
that inspection framework, § 1225 provides no independent scheme for detaining aliens; it instead
contemplates either inspection leading to admission or removal, or immediate departure in lieu of
inspection. The remaining § 1225 sections serve to reinforce that Congress is concerned with the
inspection of applicants for admission at the border.
v. 	Section 1225(b)(2)(A): An Alien Seeking Admission.
Congress’ words matter. Section 1225 establishes an inspection-based regime governing
the treatment of arriving aliens and aliens present in the country. See 8 U.S.C. § 1225(a)(1). Within
that framework, § 1225(b)(2) operates as an exception to the “expedited” removal under §
1225(b)(1), providing aliens the usual removal proceeding, under § 1229a, only when three
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conditions are met: (i) the alien is an applicant for admission; (ii) the alien is “seeking admission”;
and (iii) the examining immigration officer determines that the alien is not clearly and beyond
doubt entitled to be admitted. 	8 U.S.C. § 1225(b)(2)(A). 	Section 1225(b)(2)(A) distinguishes
between the legal status of being an applicant for admission and the act of seeking admission.
Congress uses the phrase “seeking admission” only sparingly in § 1225 and always with
precision. 	Cf., 8 U.S.C. § 1225(a)(2) (providing that stowaways are not “eligible to apply for
admission or to be admitted”). 	The phrase first appears in the inspection clause: “All aliens
(including alien crewmen) who are applicants for admission or otherwise seeking admission or
readmission to or transit through the United States shall be inspected by immigration officers.” 8
U.S.C. § 1225(a)(3). 	The phrase appears again in the statements provision: “An applicant for
admission may be required to state under oath any information sought by an immigration officer
regarding the purposes and intentions of the applicant in seeking admission to the United States.”
8 U.S.C. § 1225(a)(5). And it appears a third time in § 1225(b)(2)(A). That the phrase is absent
from the section otherwise is no coincidence. 	In the inspection clause, Congress’ use of “or”
confirms that being an applicant for admission is not coterminous with seeking admission; the
section treats them as related but distinct concepts. 8 U.S.C. § 1225(a)(3). In the statement clause,
Congress uses “seeking admission” to describe purposeful acts by the applicant for admission,
linking the phrase to conduct rather than status. 	8 U.S.C. § 1225(a)(5). 	When Congress then
employs the same phrase again in § 1225(b)(2)(A), it again does so such that the phrase helps
readers understand applicants for admission. 	The Court sees no reason to treat the insertion as
accidental or redundant.
Ordinary meaning confirms the point. “Seek” means “to go in search of,” “to ask for,” or
“to request.” Seek, Merriam-Webster.com Dictionary, Merriam-Webster, https://www.merriam-
webster.com/dictionary/seek. 	(last visited on Jan. 19, 2026). 	“Seek” denotes action directed
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toward a goal, and not a static label. “Admission” or “admitted” means “the lawful entry of the
alien into the United States after inspection and authorization by an immigration officer.” 8 U.S.C.
§ 1101(a)(13)(A). With those definitions in mind, “seeking admission” naturally refers to the act
of “asking for” or “requesting” lawful entry through inspection or authorization. 	The phrase
therefore narrows the broader universe of “applicants for admission,” which encompasses
everyone present in the United States, who has not been admitted, and arriving aliens. 8 U.S.C. §
1225(a)(1). 	Although the phrase “seeking admission” narrows the class of aliens to whom §
1225(b)(2) applies, it would be mistaken to read the provision as limited exclusively to physical
border encounters. An alien may seek lawful entry at a port of entry, but an alien may also seek
lawful admission from within the United States through statutory mechanisms such as an
application for adjustment of status on Form I-485 or other congressionally authorized procedures
for obtaining lawful admission.
Congress’ drafting is methodical. 	Section 1225(b)(1) governs arriving aliens and
designated “certain other aliens.” 8 U.S.C. § 1225(b)(1). The use of “certain other aliens” in §§
1225(b)(1) and 1225(b)(1)(A)(iii) is careful craftsmanship by Congress to aid readers in not
confusing those aliens with the “other aliens” it describes in § 1225(b)(2). 	Congress is careful,
because it does not want applicants for admission receiving removal proceedings under § 1229a
when expedited proceeding are appropriate. 	Reading “seeking admission” to do real work
preserves that purpose and the section’s structure. 	Reading the phrase as surplusage would
collapse it. See Castañon-Nava, 2025 WL 3552514 *9 (stating the presumption against reading a
phrase as superfluous is ‘strongest when an interpretation would render superfluous another part
of the same statutory scheme’)(quoting Marx v. Gen. Rev. Corp., 568 U.S. 371, 386 (2013)).
The structure of § 1225 confirms this reading. Section 1225(b)(1) sets forth the general
rule governing inspections of applicants for admission. See 8 U.S.C. § 1225(b)(1)(A). Section
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1225(b)(2) then appears on the horizon as a residual provision, applying only to “other” applicants
for admission that § 1225(b)(1) does not cover. 	See Jennings, 583 U.S. at 287 (describing §
1225(b)(2) as the “catchall provision that applies to all applicants for admission not covered by §
1225(b)(1)”). This sequencing reflects a familiar statutory pattern. 	Congress states the general
rule first and then follows it with the exceptions to the general rule. 	Reading § 1225(b)(2) to
govern all applicants for admission, without qualification, inverts the statutory pattern, allowing
the residual provision to swallow the general rule. Statutory interpretation does not permit such
an inversion.
c. 	8 U.S.C. § 1225(c).
Section 1225(c) covers the removal of inadmissible aliens based on security and related
grounds, including removal without further hearing, the Attorney General’s review of a removal
order, and submission of a statement and information for the attorney general to consider. See 8
U.S.C. §§ 1225(c)(1)-(3). Subparagraph (c)(1) states that, if an immigration officer “suspects that
an arriving alien may be inadmissible under . . . section 1182(a)(3) of this title,” the immigration
officer shall “order the alien removed.” 8 U.S.C. § 1225(c)(1). The specific subparagraphs that §
1225(c)(1) contemplates are subparagraphs §§ 1182(a)(3)(A)-(C). See 8 U.S.C. § 1225(c)(1).
Section 1182(a)(3) covers the class of aliens who are “ineligible for visas or admission”
for security related reasons. 8 U.S. C. § 1182(a)(3). Subparagraph 1182(a)(3)(A) is the general
rule that applies to any alien who “seeks to enter” the United States for nefarious purposes,
including espionage and attempting to overthrow the government. 	8 U.S. C. § 1182(a)(3)(A).
Similarly, subparagraph 1182(a)(3)(B), which applies to terrorist activities, contemplates an alien
engaging in terrorist activity “after entry” into the United States. 8 U.S.C.§ 1182(a)(3)(B)(i)(II).
Finally, subparagraph 1182(a)(3)(C) applies generally to aliens “whose entry or proposed activities
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in the United States . . . would have potentially serious adverse foreign policy consequences.” 8
U.S.C. § 1182(a)(3)(C)(i).
d. 	8 U.S.C. § 1225(d).
Section 1225(d) provides immigration officers with “[a]uthority relation to inspection.” 8
U.S.C. § 1225(d). The authority that Congress gives is the authority to search conveyances, or
vehicles,17 order detention and delivery of arriving aliens, administer oaths and consider evidence,
and to issue subpoenas. See 8 U.S.C. § 1225(d)(1)-(4). The authority to search vehicles allows
immigration officers to “board and search any vessel, aircraft, railway car, or other conveyance or
vehicle in which they believe aliens are being brought into the United States.” 	8 U.S.C. §
1225(d)(1). The authority to detain allows immigration officers to order anyone “bringing an alien
. . . to the United States” to detain the alien “on the vessel or at the airport of arrival, and to deliver
the alien to an immigration officer for inspection or to a medical officer examination.” 8 U.S.C. §
1225(d)(2)(A)-(B). Section 1225(d)(3) relates to immigration officers’ ability to administer oaths
and take evidence “touching the privilege of any alien . . . to enter, reenter, transit through, or reside
in the United States.” 8 U.S.C. § 1225(d)(3). Finally, the subpoena authority allows immigration
officers to require “the attendance and testimony of witnesses . . . and the production of books,
papers, and documents relating to the privilege of any person to enter, reenter, reside in, or pass
through the United States or concerning any matter which is material and relevant to the
enforcement of this chapter.” 8 U.S.C. § 1225(d)(4).
Section 1225(d) reinforces that § 1225’s scheme operates in an inspection-based posture.
Congress entitles this subsection “Authority relating to inspection,” and Congress frames the
17 The Merriam-Webster Dictionary defines “conveyance” as “a means or way of
conveying: such as . . . a means of transport: vehicle.” 	Conveyance, Merriam-Webster.com
Dictionary, Merriam-Webster, https://www.merriam-webster.com/dictionary/conveyance. 	(last
visited on Jan. 14, 2026).
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powers it confers around identifying, examining, and processing individuals at or near the point of
entry. 8 U.S.C. §§ 1225(d)(1)-(4). The authority to board and search vessels, aircraft, and other
conveyances reflects a focus on intercepting and examining aliens who are arriving or are at the
threshold of entry. See 8 U.S.C. § 1225(d)(1). Further reinforcing the threshold character of the
statute, §§ 1225(d)(2)(A)-(B) limits the immigration officers’ authority to direct carriers to detain
aliens on vessels or at airports of arrival, and to deliver those aliens for inspection, underscoring
that the provision operates in the context of entry screening. See 8 U.S.C. §§ 1225(d)(2)(A)-(B).
The remaining inspection authorities follow a similar theme. 	Congress authorizes
immigration officers to administer oaths and to take evidence concerning an alien’s privilege to
enter, to reenter, to transit through, or to reside in the United States, and to issue subpoenas for
testimony and documents relating to that privilege. 	See 8 U.S.C. § 1225(d)(3)(4). 	These
provisions contemplate fact finding and adjudicative functions tied to determining admissibility
and entry status, and not generalized deportation or removal functions. Read in context, § 1225(d)
supplies the operational tools necessary for immigration officials to conduct inspections and to
make entry determinations, further confirming that Congress does not envision § 1225’s detention
and removal mechanisms apart from the inspection of an arriving applicant for admission inspect.
By contrast, § 1226 speaks in remarkably different terms. 	Section 1226 governs the
“Apprehension and detention of aliens.” 	8 U.S.C. § 1226. 	This section employs language
associated with warrants, see 8 U.S.C. § 1226(a); work authorization, see 8 U.S.C. § 1226(a)(3);
and the prior convictions, see 8 U.S.C. § 1226(c)(E)(ii). In the Court’s view, the contrast between
the inspection-focused terminology of § 1225 and the more ordinary, post-entry language of § 1226
reflects Congress’ considered judgment that different procedures are appropriate for preventing
entry than for removing individuals who have already entered and established presence. Dep’t of
Homeland Sec. v. Thuraissigiam, 591 U.S. 103, (2020)(Alito, J.)(“Thuraissigiam”)(discussing the
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“century-old rule regarding the due process rights of an alien seeking initial entry” and an alien
who has “‘effected an entry’”)(quoting Zadvydas, 533 U.S. at 693).
Looking at existing case law reflects that different courts have taken different approaches
to the interpretation of § 1225. The Seventh Circuit in Castanon-Nava v. United States Department
of Homeland Security, 161 F.4th 1048 (7th Cir. 2025)(“Castanon-Nava”), addresses whether the
United States is likely to succeed on the merits in its argument that § 1225(b)(2)(A) allows the
detention of any noncitizen who is unlawfully present in the interior of the United States. 161 F.4th
at 1060. Looking to § 1225(b)(2)(A)’s language, the Seventh Circuit contemplates what it means
to be “seeking admission.” 161 F.4th at 1061. Despite the United States’ argument that an
“applicant for admission” is synonymous with a person “seeking admission,” the Seventh Circuit
holds that unlawful noncitizens are only seeking admission when they are at the border. 161 F.4th
at 1061. The Seventh Circuit offer two main arguments to support that conclusion.
First, the Seventh Circuit believes that if the United States’ interpretation of seeking
admission is adopted, it would render § 1225(b)(2)(A)’s use of the phrase “seeking admission”
superfluous. 161 F.4th at 1061. Second, the Seventh Circuit notes that “the difference in treatment
between a noncitizen at the border and one already in the United States fits within the broader
context of our immigration law. Indeed, ‘the distinction between an alien who has effected an entry
into the United States and one who has never entered runs throughout immigration law.’” 161 F.4th
at 1061-62 (citing Zadvydas,, 533 U.S. at 693). The Seventh Circuit therefore concludes that the
United States is not likely to succeed on the merits of their arguments that those individuals, whom
ICE arrests without a warrant on the interior of the country, are subject to mandatory detention
under § 1225(b)(2)(A). 161 F.4th at 1062.
By contrast, in Singh v. Noem, No. CIV 25-1110 JB/KK, 2026 WL 146005 (D.N.M. Jan.
20, 2026)(“Singh”) the Court begins by looking at § 1225 as a whole. See Singh, 2026 WL 146005,
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at * 33. Section 1225(b)(1) applies to “applicants for admission” who “arrive” in the United States,
or who have been in the United States continuously for less than two years, whereas Section
1225(b)(2) applies to “other aliens” that are applicants for admission seeking admission. Singh,
2026 WL 146005, at * 33. The Court understands § 1225(b)(1) to be the default provision for §
1225, and that the majority of aliens whom the United States properly holds under § 1225 will fall
within its scope; “that is, aliens qualifying as applicants for admission who either arrive at the
border, and are inadmissible because of fraud, misrepresentation, or lack of valid documentation,
or aliens who are present in the country continuously for less than two years immediately before
the date of the determination of inadmissibility, and are inadmissible because of fraud,
misrepresentation, or lack of valid documentation.” Singh, 2026 WL 146005, at * 34. Turning
then to § 1225(b)(2), the Court concludes that this provision is a “catchall provision.” Singh, 2026
WL 146005, at * 34 (citing Jennings, 583 U.S. at 287). 	Section 1225(b)(2) is not, however, a
catchall such that it covers every applicant for admission; instead it only covers applicants for
admission who seek admission, such as applying to achieve some legal status. See Singh, 2026
WL 146005, at * 34. In reaching this conclusion, the Court rejects the United States’ argument
that all applicants for admission are seeking admission, because “[t]reating these phrases
synonymously is contrary to the presumption that Congress intends different words or phrases to
be accorded different meanings.” 	Singh, 2026 WL 146005, at *35. 	The Court also rejects,
however, the argument that “seeking admission” must only apply to aliens arriving at the border,
because this conclusion equates the phrase “seeking admission” with an “arriving alien,” which is
also contrary to the presumption that Congress intends different words or phrases to be accorded
different meanings. Singh, 2026 WL 146005, at *35. The Court therefore reads § 1225(b)(2) to
afford meaning to both the phrase “applicant for admission” and “seeking admission” by
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concluding that seeking admission requires some affirmative action on the part of the applicant for
admission. See Singh, 2026 WL 146005, at *35.
Finally, the Fifth Circuit in Buenrostro-Mendez v. Bondi, No. 25-20496, 2026 WL 323330,
at *1 (5th Cir. February 6, 2026)(“Buenrostro”), contemplates what the phrase “seeking
admission” means in § 1225(b)(2)(A). 2026 WL 323330, at *1. In Buenrostro, both petitioners
are citizens of Mexico who enter the United States illegally. See 2026 WL 323330, at *3. DHS
encounters each petitioner in 2025, and, upon inspection, immigration officers determine that each
petitioner in inadmissible as an alien present in the United States without having been admitted or
paroled. See 2026 WL 323330, at *3. 	DHS commences removal proceedings under § 1229a
against both petitioners, directing that the United States detain them under § 1225(b)(2)(A) for the
duration of the proceedings. See 2026 WL 323330, at *3. Both petitioners seek bond hearings
before an immigration judge, but both immigration judges conclude that the petitioners are
ineligible for a bond hearing under § 1225(b)(2). See 2026 WL 323330, at *3. As a result of the
immigration judge’s ruling, the petitioners file habeas petitions seeking release from detention or
a bond hearing under § 1226(a). The district court judges in both cases grant the habeas petitions
and order a bond hearing. See 2026 WL 323330, at *3.
In a two to one decision, the Fifth Circuit holds that neither petitioner is entitled a bond
hearing and are instead properly detained under § 1225(b)(2)(A). See 2026 WL 323330, at *10.
Although the petitioners argue that they are not subject to § 1225(b)(2)(A) detention, because
“seeking admission” refers only to those aliens who are submitting themselves for inspection by
an immigration officer, and the United States detained the petitioners in the United States’ interior,
the Fifth Circuit rejects this argument by concluding that those aliens who are applicants for
admission are always seeking admission. 2026 WL 323330, at *4. The Fifth Circuit offers several
reasons to support that conclusion.
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First, the Fifth Circuit holds that the ordinary meaning of the language in § 1225(b)(2)(A)
supports its conclusion that applicants for admission are seeking admission. See 2026 WL 323330,
at *4. The Fifth Circuit asserts that there is no material disjunction -- by terms of the statute of the
English language -- between the concept of applying for something and seeking something. See
2026 WL 323330, at *4. “When a person applies for something, they are necessarily seeking it.”
2026 WL 323330, at *4. “Just as an applicant to a college seeks admission, an applicant for
admission to the United States is ‘seeking admission’ to the same, regardless whether the person
actively engages in further affirmative acts to gain admission.” 2026 WL 323330, at *4. The Fifth
Circuit therefore holds that the everyday meaning of § 1225(b)(2)(A)’s terms confirms that an
applicant for admission is not independent from seeking admission. See 2026 WL 323330, at *4.
Second, the Fifth Circuit points to § 1225(a)(3) which specifies that “[a]ll aliens (including
crewman) who are applicants for admission or otherwise seeking admission or readmission to or
transit through the United States shall be inspected by immigration officers.” See 2026 WL
323330, at *5. “The use of ‘or otherwise’ suggests that ‘applicants for admission’ are a subset of
those ‘seeking admission.’” See 2026 WL 323330, at *5. As another textual hook, the Fifth Circuit
points to § 1225(a)(5) as reinforcing the proposition that applicants for admission are seeking
admission. See 2026 WL 323330, at *6. Section 1225(a)(5) states: “An applicant for admission
may be required to state under oath any information sought by an immigration officer regarding
the purposes and intentions of the applicant in seeking admission to the United States . . . .” 8
U.S.C. § 1225(a)(5). The Fifth Circuit concludes that § 1225(a)(5)’s language “strongly suggests
that those who are applicants for admission are seeking admission.” 2026 WL 323330, at *6.
Third, the Fifth Circuit notes that if Congress had intended an alien seeking admission to
mean an arriving alien, it would have used the word arriving alien. See 2026 WL 323330, at *6.
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Congress did not hesitate to use the arriving alien language elsewhere in §§ 1225(a)(2), (c)(1), and
(d)(2). See 2026 WL 323330, at *6.
Fourth, the Fifth Circuit cites Jennings as support for its conclusion that those who are
applicants for admission are seeking admission. See Buenrostro, 2026 WL 323330, at *8. In
Jennings, according to the Fifth Circuit, the Supreme Court explains that Ҥ 1225(b) applies to
aliens seeking entry into the United States (‘applicants for admission’ in the language of the
statute).” 2026 WL 323330, at *6 (citing Jennings, 583 U.S. at 297). The Fifth Circuit states:
That language supports the government’s contention that ‘applicants for
admission’ are according to the statute seeking entry or admission. And it suggests
that when the Supreme Court described § 1225 as applying to aliens ‘seeking
admission,’ it understood that to mean aliens who, like the petitioners here, are
present in the United States without admission.
2026 WL 323330, at *8. Accordingly, the Fifth Circuit in Buenrostro holds that applicants for
admission are seeking admission.
3. 	Due Process.
The courts cannot interpret the INA and the role § 1225 plays in its statutory scheme apart
from the Constitutional principles that historically govern the relationship between due process
and the sovereign authority to admit or exclude noncitizens. See Thuraissigiam, 591 U.S. at 139-
140. The Court is mindful, however, to differentiate between due process the statute requires and
Constitutional Due Process. See Rodriguez v. Marin, 909 F.3d 252 (9th Cir. 2018)(stating that the
Supreme Court, in Jennings, “chose to answer only the question whether the statutory text itself
included a limit on prolonged detention or a requirement of individual bond hearings . . . . The
Court then remanded the constitutional issues to our court”). 	Below, the Court details the law
regarding: (i) Constitutional Due Process, (ii) immigration law and due process, and (iii) how those
bodies of law shape courts’ statutory interpretations of the INA.
a. 	The Due Process Clause.
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The Fifth Amendment to the United States Constitution states that the government shall
not deprive any person “of life, liberty, or property, without due process of law . . . .” U.S. Const.
amend. V, § 1. 	The Due Process Clause encompasses two distinct forms of protection: (i)
procedural due process, which requires the government to employ fair procedures when depriving
a person of a protected interest; and (ii) substantive due process, which guarantees that the
government cannot deprive a person of a protected interest for certain reasons. See Reid v. Pautler,
36 F. Supp. 3d 1067, 1136 (D.N.M. 2014)(Browning, J.)(citing Cty. of Sacramento v. Lewis, 523
U.S. 833, 845-46 (1998)). 	“Under either form of protection, however, a person must have a
protected interest in either life, liberty, or property.” Chavez-Rodriguez v. City of Santa Fe, 2008
WL 5992271, at *6 (D.N.M. Oct. 9, 2008)(Browning, J.).
i. 	Procedural Due Process.
The Tenth Circuit prescribes a two-step inquiry in determining whether the defendant
violates an individual’s procedural due process rights: (i) ”[d]id the individual possess a protected
property [or liberty] interest to which due process protection was applicable?”; and (ii) ”[w]as the
individual afforded an appropriate level of process?” Camuglia v. City of Albuquerque, 448 F.3d
1214, 1219 (10th Cir. 2006)(quoting Clark v. City of Draper, 168 F.3d 1185, 1189 (10th Cir.
1999)). “[T]o determine whether due process requirements apply in the first place, we must look
not to the ‘weight’ but to the nature of the interest at stake.” Bd. of Regents of State Colls. v. Roth,
408 U.S. 564, 570-71 (1972). “‘Liberty’ and ‘property’ are broad and majestic terms. They are
among the ‘(g)reat (constitutional) concepts . . . purposely left to gather meaning from experience.”
Bd. of Regents of State Colls. v. Roth, 408 U.S. at 571 (quoting National Mutual Ins. Co. v.
Tidewater Transfer Co., 337 U.S. 582, 646 (1949)(Frankfurter, J., dissenting)). 	The Supreme
Court requires “due process protection for deprivations of liberty beyond the sort of formal
constraints imposed by the criminal process.” Bd. of Regents of State Colls. v. Roth, 408 U.S. at
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571-72. “Yet, while the Court has eschewed rigid or formalistic limitations on the protection of
procedural due process, it has at the same time observed certain boundaries,” and “the words
‘liberty’ and ‘property’ in the Due Process Clause of the Fourteenth Amendment must be given
some meaning.” Bd. of Regents of State Colls. v. Roth, 408 U.S. at 572.
Concerning the Fourteenth Amendment’s meaning of “liberty”, the Supreme Court states
the following:
Without doubt, it denotes not merely freedom from bodily restraint but also the
right of the individual to contract, to engage in any of the common occupations of
life, to acquire useful knowledge, to marry, to establish a home and bring up
children, to worship God according to the dictates of his own conscience, and
generally to enjoy those privileges long recognized . . . as essential to the orderly
pursuit of happiness of free men. In a Constitution for a free people, there can be
no doubt that the meaning of ‘liberty’ must be broad indeed.
Bd. of Regents of State Colls. v. Roth, 408 U.S. at 572.
“The Fourteenth Amendment’s procedural protection of property is a safeguard of the
security of interests that a person has already acquired in specific benefits.” 	Bd. of Regents of
State Colls. v. Roth, 408 U.S. at 576. These property interests, as already explained, clearly can
include “real estate, chattels, or money,” but they “may take many forms.” Bd. of Regents of State
Colls. v. Roth, 408 U.S. at 571-76.
Thus, the Court has held that a person receiving welfare benefits under
statutory and administrative standards defining eligibility for them has an interest
in continued receipt of those benefits that is safeguarded by procedural due process.
Goldberg v. Kelly, 397 U.S. 254 . . . [(1970)]. See Flemming v. Nestor, 363 U.S.
603, 611 . . . [(1960)]. Similarly, in the area of employment, the Court has held that
a public college professor dismissed from an office held under tenure provisions,
Slochower v. Bd. of Education, 350 U.S. 551 . . . [(1956)], and college professors
and staff members dismissed during the terms of their contracts, Wieman v.
Updegraff, 344 U.S. 183 . . . [(1952)], have interests in continued employment that
are safeguarded by due process.
Bd. of Regents of State Colls. v. Roth, 408 U.S. at 576-77.
“To have a property interest in a benefit, a person clearly must have more than an abstract
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need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have
a legitimate claim of entitlement to it.” Bd. of Regents of State Colls. v. Roth, 408 U.S. at 577.
“Such an interest arises not from the Due Process Clause of the Constitution itself, but is created
by independent sources such as a state or federal statute, a municipal charter or ordinance, or an
implied or express contract.” Teigen v. Renfrow, 511 F.3d at 1079. See Paul v. Davis, 424 U.S.
693, 710 (1976)(“[Liberty and property] interests attain . . . constitutional status by virtue of the
fact that they have been initially recognized and protected by state law.”). “Property interests, of
course, are not created by the Constitution. 	Rather they are created, and their dimensions are
defined by existing rules or understandings that stem from an independent source such as state
law-rules or understandings that secure certain benefits and that support claims of entitlement to
those benefits.” Bd. of Regents of State Colls. v. Roth, 408 U.S. at 577. See Farthing v. City of
Shawnee, 39 F.3d 1131, 1135 (10th Cir. 1994)(“Rather, property interests, which are the subject
of the present litigation, ‘are created and their dimensions are defined by existing rules or
understandings that stem from an independent source such as state law.’”)(quoting Bd. of Regents
of State Colls. v. Roth, 408 U.S. at 577)).
“[O]nce it is determined that the Due Process Clause applies, the question remains what
process is due.” Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 541 (1985)(citing Morrissey
v. Brewer, 408 U.S. 471, 481 (1972)). “An essential principle of due process is that a deprivation
of life, liberty, or property be preceded by notice and opportunity for hearing appropriate to the
nature of the case.” 	Cleveland Bd. of Educ. v. Loudermill, 470 U.S. at 542. “[D]ue process is
flexible and calls for such procedural protections as the particular situation demands.” Mathews
v. Eldridge, 424 U.S. at 334. The Supreme Court explains that
the root requirement of the Due Process Clause [is] that an individual be given an
opportunity for a hearing before he is deprived of any significant property interest.
This principle requires some kind of a hearing prior to the discharge of an employee
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who has a constitutionally protected property interest in his employment.
. . . .
[T]he pretermination hearing, though necessary, need not be elaborate. We have
pointed out that [t]he formality and procedural requisites for the hearing can vary,
depending upon the importance of the interests involved and the nature of the
subsequent proceedings. In general, something less than a full evidentiary hearing
is sufficient prior to adverse administrative action.
Cleveland Bd. of Educ. v. Loudermill, 470 U.S. at 542, 545 (footnote omitted).
The United States Court of Appeals for the Second Circuit states:
The Supreme Court . . . explained that procedural due process is a flexible standard
that can vary in different circumstances depending on “‘the private interest that will
be affected by the official action’” as compared to “the Government’s asserted
interest, ‘including the function involved’ and the burdens the Government would
face in providing greater process.” Hamdi v. Rumsfeld, 542 U.S. 507, [529] . . .
(2004)(quoting Mathews v. Eldridge, 424 U.S. at 335). 	A court must carefully
balance 	these 	competing 	concerns, 	analyzing 	“‘the 	risk 	of 	an 	erroneous
deprivation’ of the private interest if the process were reduced and the ‘probable
value, if any, of additional or substitute safeguards.’” 	Id. (quoting Mathews v.
Eldridge, 424 U.S. at 335. . . .).
United States v. Abuhamra, 389 F.3d 309, 318 (2d Cir. 2004). 	See Black v. Decker, 103 F.4th
133, 148 (2d Cir. 2024)(stating that Mathews v. Eldridge ‘remains a flexible test,’ and takes
account of individual circumstances” (quoting Rodriguez Diaz v. Garland, 53 F.4th 1189, 1206
(9th Cir. 2022))). The required hearing depends on: (i) the private interest at stake; (ii) the risk of
erroneous deprivation given the procedures the government already guarantees, and whether
additional procedural safeguards prove valuable; and (iii) the government’s interest and the
burdens that additional procedures might impose. See Mathews v. Eldridge, 424 U.S. at 335. For
example, “[w]here . . . the state must act quickly, a meaningful post-deprivation hearing is
adequate.” Clark v. City of Draper, 168 F.3d at 1189. See Spielman v. Hildebrand, 873 F.2d 1377,
1385 (10th Cir. 1989)(concluding that removal of a child from parents’ custody requires pre-
deprivation hearing “except for extraordinary situations where some valid governmental interest
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is at stake that justifies postponing the hearing until after the event”).
The Court has considered procedural due process violations. 	See, e.g., A.M. through
Youngers v. N.M. Dep’t of Health, No. CIV 13-0692 JB/WPL, 2015 WL 13668431, at *37-43
(D.N.M. Dec. 7, 2015)(Browning, J.)(“Youngers”). 	For example, in Youngers, the Court
concludes that the New Mexico Department of Health violates due process when it affords a
woman with developmental disabilities no process before depriving her of medical care, conditions
of reasonable care, safety, and nonrestrictive confinement, because it affords her no process for
deprivation. 	See Youngers, 2015 WL 13668431, at *37-43. 	The Court also concludes a
municipality does not deny due process to tenured city employee when the city fired him, because
the city affords him a hearing. See Salazar v. City of Albuquerque, 776 F. Supp. 2d 1217, 1239
(D.N.M. 2011)(Browning, J.)(“A citizen is entitled to process and is not necessarily guaranteed a
win.”). See also Duprey v. Twelfth Judicial Dist. Court, 760 F. Supp. 2d at 1215 (denying due
process claims where a State employee “got her opportunity to be heard at a complex grievance
hearing, with an attorney and with an opportunity to question witnesses, and make opening and
closing arguments to a panel of decision-makers”); Camuglia v. City of Albuquerque, 375 F. Supp.
2d at 1299, aff’d 448 F.3d at 1220-21 (“[I]t cannot be denied that the City, acting through its
inspectors, may close a restaurant to protect the health of patrons and workers without first
providing a hearing to the restaurant owner.”).
ii. 	Substantive Due Process.
There are two substantive due process claims: (i) where the plaintiff alleges that the
government infringes upon a fundamental right, see Washington v. Glucksberg, 521 U.S. 702,
721-22 (1997)(“Glucksberg”); and (ii) where the plaintiff alleges that a government action
deprives arbitrarily the plaintiff of life, liberty, or property, in a manner that shocks the judicial
conscience, see Rochin v. California, 342 U.S. 165, 172 (1952)(concluding that a sheriff’s
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application of stomach pumping to force an arrestee to vomit shocked the conscience). The Tenth
Circuit “appl[ies] the fundamental-rights approach when the plaintiff challenges legislative action,
and the shocks-the-conscience approach when the plaintiff seeks relief for tortious executive
action.” 	Halley v. Huckaby, 902 F.3d 1136, 1153 (10th Cir. 2018). 	But see Seegmiller v.
LaVerkin City, 528 F.3d 762, 768 (10th Cir. 2008)(Tymkovich, C.J.)(explaining that “there is no
hard-and-fast rule requiring lower courts to analyze substantive due process cases under only the
fundamental rights or shocks the conscience standards”). 	But see also Dawson v. Bd. of Cty.
Comm’rs, 732 F. App’x 624, 636 (10th Cir. 2018)(Tymkovich, C.J., concurring)(noting that,
“though our circuit has sometimes repeated Seegmiller’s ‘both tests work’ dicta, we do not follow
it. Instead, we follow a simple binary approach” which applies the fundamental rights test to
legislative actions and the shocks-the-conscience test to executive actions)(quoting, see, e.g.,
Leatherwood v. Allbaugh, 861 F.3d 1034, 1046 n.11 (10th Cir. 2017)(explaining both tests could
be used in case about revocation of a defendant’s suspended sentence)).
The fundamental rights approach proceeds in three steps. See Abdi v. Wray, 942 F.3d at
1028. First, the court must evaluate whether a fundamental right is at issue either: (i) “because the
Supreme Court or the Tenth Circuit has already determined that it exists”; or (ii) “because the right
claimed to have been infringed by the government is one that is objectively among those ‘deeply
rooted in this Nation’s history and tradition’ and ‘implicit in the concept of ordered liberty’ such
that it is ‘fundamental.’” Abdi v. Wray, 942 F.3d at 1028 (quoting Glucksberg, 521 U.S. at 720-
21). 	Second, the court determines whether the right at issue “has been infringed through either
total prohibition or ‘direct and substantial’ interference.” Abdi v. Wray, 942 F.3d at 1028 (quoting
Zablocki v. Redhail, 434 U.S. 374, 387 (1978)). Third, if the right is fundamental, the Court must
determine whether the government action at issue satisfies strict scrutiny. See Abdi v. Wray, 942
F.3d at 1028 (noting that the government must “me[e]t its burden to show that the law . . . is
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narrowly tailored to achieve a compelling governmental purpose”). If the right is not fundamental,
however, the Court applies rational basis review. 	See Reno v. Flores, 507 U.S. 292, 305
(1993)(explaining that strict scrutiny is requires “only when fundamental rights are involved”).
“Whether 	the 	conduct 	shocks 	the 	conscience 	is 	an 	objective 	test, 	based 	on 	the
circumstances, rather than a subjective test based on the government actor’s knowledge.” Pena v.
Greffet, 922 F. Supp. 2d at 1227 (citing James v. Chavez, 830 F. Supp. 2d 1208, 1276 (D.N.M.
2011)(Browning, J.)(concluding that the use of deadly force does not shock the conscience even
if the suspect does not have an intent to harm the officer, because the officer “had sufficient facts
before him to conclude that there was a threat of serious physical harm” and the “courts must
evaluate a [government actor’s] conduct objectively”), aff’d, 511 F. App’x 742 (10th Cir.
2013)(unpublished)). For Executive action to shock the conscience, that action must be more than
mere negligence. E.g., Moore v. Guthrie, 438 F.3d 1036, 1040 (10th Cir. 2006)(“Moore”). Indeed,
even a reckless official’s or the action of one bent on injuring a person do not necessarily shock
the judicial conscience. Moore, 438 F.3d at 1040. “‘Conduct that shocks the judicial conscience’
is ‘deliberate government action that is arbitrary and unrestrained by the established principles of
private right and distributive justice.’” 	Hernandez v. Ridley, 734 F.3d 1254, 1261 (10th
Cir.2013)(“Hernandez”)(quoting 	Seegmiller 	v. 	LaVerkin 	City, 	528 	F.3d 	762, 	767 	(10th
Cir.2008)). 	“To show a defendant’s conduct is conscience shocking, a plaintiff must prove a
government actor arbitrarily abused his authority or ‘employed it as an instrument of oppression.’”
Hernandez, 734 F.3d at 1261 (quoting Williams v. Berney, 519 F.3d 1216, 1220 (10th Cir.2008)).
“The behavior complained of must be egregious and outrageous.” Hernandez, 734 F.3d at 1261.
See Cnty. of Sacramento v. Lewis, 523 U.S. 833, 847 (1998)(stating that Rochin v. California, 342
U.S. 165 (1952) set the “benchmark” of executive abuse of power at “conduct ‘that shocks the
conscience’ and violates the ‘decencies of civilized conduct’”)(quoting Rochin v. California, 342
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U.S. at 172-173); Breithaupt v. Abram, 352 U.S. 432, 435 (1957)(“We set aside the conviction
because such conduct ‘shocked the conscience’ and was so ‘brutal’ and ‘offensive’ that it did not
comport with traditional ideas of fair play and decency.”)(quoting Rochin v. California, 342 U.S.
at 174).
b. 	Due Process and Immigration Law.
“[T]he power to admit or exclude aliens is a sovereign prerogative.” Landon, 459 U.S. at
32 (citing as examples United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 542 (1950), and
Nishimura Ekiu v. United States, 142 U.S. 651, 659-60 (1892)). See Thuraissigiam, 591 U.S. at
139 (stating the sovereign’s prerogative is a “fundamental proposition”). 	The United States’
plenary power to admit or exclude aliens is no longer plenary once an alien enters the country, see
Landon, 459 U.S. at 32 (“Once an alien gains admission to our country and begins to develop the
ties that go with permanent residence his constitutional status changes accordingly.”), because the
Due Process Clause applies to “all persons,” Zadvydas, 533 U.S. at 693. In 1886, the Supreme
Court says:
The fourteenth amendment to the constitution is not confined to the protection of citizens.
It says: “Nor shall any state deprive any person of life, liberty, or property without due
process of law; nor deny to any person within its jurisdiction the equal protection of the
laws.” 	These provisions are universal in their application, to all persons within the
territorial jurisdiction, without regard to any differences of race, of color, or of nationality;
and the equal protection of the laws is a pledge of the protection of equal laws.
Yick Wo v. Hopkins, 118 U.S. at 369 (quoting U.S. Const. amend. XIV, § 1). Yick Wo v. Hopkins
deals with California detaining Chinese aliens without due process of law. 118 U.S. at 368-369.
Accordingly, whether an alien is “within” the United States is a determination with Constitutional
significance. See Leng May Ma v. Barber, 357 U.S. 185, 188 (1958)(“Leng May Ma”)(stating that
the Court recognizes “additional rights and privileges” for alien “within the United States after an
entry, irrespective of its legality”). 	Immigration law balances the United States’ prerogative to
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admit or exclude with the constraints the Due Process Clauses places on United States by
distinguishing between aliens who are “on the threshold of initial entry,” Shaughnessy v. United
States ex rel. Mezei, 345 U.S. 206, 212 (1953)(“Mezei”), and those who gain a “foothold” or effect
entry in the United States, see Kaplan v. Tod, 267 U.S. 228, 258 (1925)(“Kaplan”). 	Congress
legislates against this settled Constitutional background of aliens at the threshold of entry and those
who effect an entry.
i. 	On the Threshold of Entry.
“The entry-doctrine fiction has always determined when and under what circumstances due
process applies in proceedings.” Kurzban, supra, chapter 3, § 1.H, at 80. Although IIRIRA ends
the traditional distinction between exclusion and deportation proceedings, the entry doctrine
endures regarding whether someone has Constitutional rights if they are in the United States, even
if the United States has not admitted the alien. See Kurzban, supra, chapter 3, § 1.H, at 80. For
more than a century, the Supreme Court recognizes that an alien seeking entry “requests a
privilege,” Landon, 459 U.S. at 32, and possesses only those procedural protections which
Congress chooses to provide, because the power to admit or exclude aliens is a core sovereign
prerogative, see 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.”). The United States’ power over aliens on the “threshold of entry” does not change
because an alien sets foot on United States’ soil. Thuraissigiam, 591 U.S at 140 (stating that, even
if the alien makes his way “25 yards into U.S. territory,” he is treated as an applicant for admission
“‘on the threshold’” of entry)(quoting Mezei, 345 U.S. at 212). 	Nor does the power change
because an alien is “paroled elsewhere in the country for years pending removal”; they, too, are
“‘treated for due process purposes ‘as if stopped at the border.’” Thuraissigiam, 591 U.S at 139
(quoting Mezei, 345 U.S. at 215). Thus, the sovereign’s prerogative endures for any alien stopped
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at the border or “detained shortly after unlawful entry” despite circumstances that might suggest
the alien effects an entry. Kaplan, 267 U.S. at 257-58 (stating that, “in theory of law,” an alien is
inadmissible, but immigration officers permit the aliens to reside in the United States for nine
years, nonetheless remains “at the boundary line” and for purposes of due process has “gained no
foothold in the United States” for purposes of due process). See Leng May Ma 357 U.S. at 188-
90 (1958)(stating that an alien “paroled” into the United States pending admissibility has not
effected an “entry”). Aliens, whom the United States treats as “at the boundary line,” receive less
Constitutional Due Process protections than an alien who effects an entry without first
encountering the United States.
ii. 	Effected Entry.
By contrast, once an alien effects entry and develops a presence within the United States,
removal implicates greater Constitutional protections. 	See Landon, 459 U.S. at 34 (“Our cases
have frequently suggested that a continuously present resident alien is entitled to a fair hearing
when threatened with deportation.”). Whether an alien effects entry is not purely a question of
presence in the country or temporal conditions; the question goes to the connection and the
relationship between the United States and the alien. See United States v. Verdugo–Urquidez, 494
U.S. 259, 271 (1990)(stating in dicta that “aliens receive constitutional protections when they have
come within the territory of the United States and developed substantial connections with this
country”); Kwong Hai Chew v. Colding, 344 U.S. 590, 596 n.5, (1953)(“The Bill of Rights is a
futile authority for the alien seeking admission for the first time to these shores. But 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.”); Yamataya v. Fisher, 189 U.S. 86, 100-01
(1903)(withholding judgment on question “whether an alien can rightfully invoke the due process
clause of the Constitution who has entered the country clandestinely, and who has been here for
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too brief a period to have become, in any real sense, a part of our population, before his right to
remain is disputed”).
For example, in Osorio-Martinez v. Attorney General of the United States, 893 F.3d 153
(3d Cir. 2018)(“Osorio-Martinez”), the United States Court of Appeals for the Third Circuit
considers two classes of aliens subject to expedited removal under § 1225(b) and the related
jurisdiction-stripping provision in § 1252. 	See Osorio-Martinez, 893 F.3d at 162-63. 	The first
class consists of aliens “apprehended within hours of entering the country,” Osorio-Martinez, 893
F.3d at 166, while the second class consists of aliens physically present in the United States who
qualify for Special Immigrant Juvenile status under 8 U.S.C. § 1101(a)(27)(J). 	See Osorio-
Martinez, 893 F.3d at 163. In Castro v. Department of Homeland Security, 835 F.3d 422 (3d Cir.
2016)(“Castro”), the Third Circuit addresses the first class and holds that § 1225 does not violate
the Constitution, reasoning that the petitioners’ claims are “based on physical presence alone,” and
the claims arise in the context of aliens seeking initial entry or whom are apprehended immediately
after entry. Osorio-Martinez, 893 F.3d at 166 (citing Castro, 835 F.3d at 448). See Castro, 835
F.3d at 448 (stating that “most of the cases cited above did not involve aliens who were seeking
initial entry to the country or who were apprehended immediately after entry.”). By contrast, in
Osorio-Martinez, 	the 	Third 	Circuit 	holds 	that 	§ 	1252’s 	jurisdiction-stripping 	clause 	is
unconstitutional as applied to the second class of aliens, concluding that those aliens have
“significant ties to this country” sufficient to trigger greater constitutional protection. 	Osorio-
Martinez, 893 F.3d at 167. The Third Circuit thus reaffirms the longstanding distinction between
aliens at or near the threshold of entry, and those who have effected entry, and establish presence
within the United States for purposes of due process analysis.
Because the Constitution distinguishes between aliens who effect an entry and those who
remain at the threshold of entry, an alien who enters the United States may, in certain
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circumstances, receive greater procedural protections than an alien seeking initial admission. The
Supreme Court has repeatedly explained that, for aliens at the threshold of entry, the Constitution
requires no procedural process beyond that which Congress has provided by statute to govern their
application. See Mezei, 345 U.S. at 212 (“‘Whatever the procedure authorized by Congress is, it
is due process as far as an alien denied entry is concerned.’”)(quoting United States ex rel. Knauff
v. Shaughnessy, 338 U.S. 537, 544 (1950).18
18 While the Supreme Court has said that Constitutional Due Process for ____ aliens is all
the process that Congress gives, that does not seem like sound Constitutional analysis for several
reasons. First, the Constitution exists before any immigration statute, so the Constitution provided
some protection to aliens before Congress passes the first immigration statute in ____. 	The
question is what Due Process required before the first statute. 	Presumably there was some
protections for aliens before that statute. It seems better to decide what the Constitution provided
then and provides now then just refer to a statute.
Second, the Court is uncomfortable with the idea that every violation of the statute is a
Constitutional violation. Normally, the Constitution is a floor, and Congress must provide process
above the floor to be Constitutional. By describing Due Process to be what the Legislature say it
so, the Court is concerned that the Supreme Court is not giving Congress or the lower courts
guidance what Due Process is. In other words, saying that that the rule is that whatever Congress
gives is Constitutional Due Process is no guidance at all.
Third, ever since Marbry v. Madison, the Court has insisted that it is the arbitrator of what
the Constitution means. In the immigration area, the Supreme Court gives this power to Congress.
When the lower courts desperately need guidance, the Supreme Court is not to be found.
Fourth, when Congress changes the law, the Constitution changes. Congress decides what
the Constitution means and protects. Thus, what can happen is that Constitutional protections can
go and down. For the nation and for the federal judiciary; that Constitutional protections can go
down is odd.
It seems that the best approach would be for the Supreme Court to decide this whatever
Congress says at decide what it does in other areas where the Constitution requires. In other words,
the Supreme Court needs to do what Chief Judge Marshal in Marbury v. Madison claims as its
own job. The Supreme Court needs to decide what the Constitution protects.
Procedural Due Process requires notice and the opportunity to be heard. Notice probably
is not the issue if the United States is detaining the alien; the issue is the hearing. 	Likely, the
United States is detaining the alien or about to detain the alien. The issue probably is removal or
not removal, and detention if removal. That probably all the Due Process gives. It does not require
a bond hearing, any partial burden of proof, or any burden of proof on the United States. It seems
that fleshing out what the Constitution minimally requires actually is makes more sense than
referring to the statute for Constitutional analysis.
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The Court undertakes this due process analysis in Singh, and concludes that the Due
Process Clause does not afford Singh any greater procedural due process rights than the statute
affords, because Singh is an alien subject to the entry-fiction doctrine. 	See Singh, 2026 WL
146005, at * 39. Further, looking to § 1225(b)(2), the Court determines that the statute does not
afford Singh the right to any process beyond an initial inspection to determine that the “alien
seeking admission is not clearly and beyond a doubt entitled to be admitted.” 8 U.S.C. §
1225(b)(2). This does not mean, however, that Singh does not have any due process protections
at all, because the Court determines that all aliens, whether subject to the entry-fiction doctrine or
territorial standing, have substantive due process rights beyond what the statute affords. See Singh,
2026 WL 146005, at * 39. Continued detention without process may violate “an alien subject to
the entry fiction’s substantive due process rights if immigration detention becomes punitive.”
Singh, 2026 WL 146005, at * 39. The Court concludes, however, that Singh’s detention to date,
approximately four months, is not so long as to qualify as punitive and therefore is not a violation
of his due process rights. See Singh, 2026 WL 146005, at * 39.
iii. 	Paroled and Conditional Parole.
Consistent with the “effected entry” framework, Congress has long exercised the power to
permit an alien’s physical presence within the United States while treating that individual, as a
matter of law, as remaining at the threshold of entry -- a legal fiction most clearly embodied in the
parole doctrine. “[A] deferred inspection necessarily involves parole into the United States under
INA § 212(d)(5),” 8 U.S.C. § 1182(d)(5). 	Charles Grodan, Stanley Madman, Yale-Loser,
Immigration Law and Procedure, § 8.05 [2][d], at 8-17 (“Gordan”). 	Parole permits physical
ingress to the United States without formal admission; “conceptually, a person remains on the
border, lacking the rights that accompany admission.” Gordan, supra, § 8.05[2][d], at 8-17. Stated
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another way, parole is not an admission -- either at the border or out of detention. See Leng May
Ma v. Barber, 357 U.S. at 190; 8 U.S.C. § 1282(d)(5).
Congress’ parole provisions reinforce the distinction between physical presence and legal
entry that runs throughout immigration law. See Kaplan, 267 U.S. at 257-58. 	Section 1182(d)
authorizes the Secretary of Homeland Security to “parole into the United States” an alien applying
for admission for “urgent humanitarian” or “significant public benefit” reasons, while expressly
providing that such parole “shall not be regarded as an admission.” 	8 U.S.C. § 1182(d)(5)(A).
Parole therefore permits an applicant for admission to reside temporarily within the United States
while remaining, in theory of law, at the threshold of entry. See Kaplan, 267 U.S. at 257-58. The
parole framework, thus, allows the political branches to accommodate humanitarian and
administrative needs without conferring the constitutional and statutory protections that attach to
aliens the United States admits or those who establish a presence within the country.
c. 	Statutory Due Process.
In balancing the sovereign’s prerogative to admit or exclude with the Due Process Clause’s
protections of all persons within the United States borders, the Supreme Court issues several
opinions, in Zadyvdas, Jennings, and Thuraissigiam, interpreting the INA touching on the issues
of due process. Although the legal questions that the Supreme Court confronts in each of the cases
is not the same, the legal discussion is instructive on how to navigate the intersection of
immigration law and due process.
i. 	Supreme Court Guidance.
In Zadvydas, the Supreme Court considers whether the immigration detention statute
governing post-removal-order custody, see 8 U.S.C. § 1231(a)(6) (1994 ed., Supp. V), authorizes
the indefinite detention of aliens whom the United States cannot deport. See Zadvydas, 533 U.S.
at 682. Both petitioners are lawful permanent residents whom the United States determines are
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removable based on their criminal convictions. See 533 U.S. at 684-86. After the statutory ninety-
day removal period expires, the United States can repatriate neither petitioner because no country
will accept them. 	See 533 U.S. at 684-86. 	The United States nevertheless continues to detain
them under the post-removal detention statue, despite the ninety-day timeframe that Congress
places in §1231(a)(6). See 533 U.S. at 682. The petitioners file habeas petitions, under 28 U.S.C.
§ 2241, arguing that permanent confinement is contrary to the Constitution. See Zadyvdas, 533
U.S. at 685.
The Supreme Court begins by stating a “statute permitting indefinite detention of an alien
would raise a serious constitutional problem.” 	See Zadyvdas, 533 U.S. at 690. 	“The Fifth
Amendment’s Due Process Clause forbids the Government to ‘depriv[e]’ any ‘person . . . of . . .
liberty . . . without due process of law.’ Freedom from imprisonment -- from government custody,
detention, or other forms of physical restraint -- lies at the heart of the liberty that Clause protects.”
Zadyvdas, 533 U.S. at 690 (quoting the U.S. Const. amend. V, § 1)(alterations in the original).
Continuing with its analysis, the Supreme Court states that only a sufficiently strong governmental
interest, accompanied by adequate procedural safeguards, can justify civil detention. 	See
Zadyvdas, 533 U.S. at 690. 	Preventing flight and protecting the community can justify limited
detention, but the Supreme Court states that indefinite detention without a realistic prospect of
removal cannot be Constitutional. 	See Zadyvdas, 533 U.S. at 692. 	Importantly, the Supreme
Court rejects the United States reliance on Mezei, explaining that, once an alien enters the United
States, “the legal circumstances change[],” because the Due Process Clause applies to all persons
within the United States, regardless of the legality of their presence. Zadyvdas, 533 U.S. at 693.
To avoid the Constitutional problem, the Supreme Court construes 8 U.S.C. § 1231(a)(6)
(1994 ed., Supp. V), to contain an implicit temporal limitation that the statute authorizes detention
only for “a period reasonably necessary” to accomplish removal. Zadyvdas, 533 U.S. at 689. The
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Supreme Court adopts a “presumptively reasonable” six-month detention period. Zadyvdas, 533
U.S. at 700-01. After six months, if the alien can show that removal is not reasonably foreseeable,
continued detention becomes unauthorized unless the United States rebuts that showing. 	See
Zadyvdas, 533 U.S. at 701. 	The Supreme Court thus reaffirms that, while Congress possesses
broad authority over immigration, this authority remains subject to Constitutional limits once an
alien effects an entry and establishes a presence in the United States.19
In Jennings, the Supreme Court considers whether 8 U.S.C. §§ 1225(b), 1226(a), and
1226(c) implicitly requires periodic bond hearings or impose a temporal limitation on detention.
See Jennings, 583 U.S. at 289. 	Respondent Alejandro Rodriguez, in Jennings, is a lawful
permanent resident whom the United States detains under § 1226, because he has several criminal
convictions. See Jennings, 583 U.S. at 289-90. The United States Court of Appeals for the Ninth
Circuit certifies a class of aliens that the United States detains under 8 U.S.C. § 1225(b), 1226(a),
and 1226(c) for longer than six months without providing a hearing justifying the detention, and
names Rodriguez as the class representative. See Jennings, 583 U.S. at 290-91. The Ninth Circuit
concludes those provision mandate a bond hearing every six months, invoking the Constitutional
19 In Zadvydas, the Supreme Court addresses post-removal-order detention as applied to
lawful permanent residents who had effected entry into the United States and later lost their
admitted status. See 533 U.S. at 682. The Court emphasizes that its Due Process analysis rested
on the petitioners’ prior entry and presence in the United States, noting that “[o]nce an alien enters
the country, the legal circumstance changes,” because the Due Process Clause applies to all persons
within the United States. Zadvydas, 533 U.S. at 693. The Court acknowledges that “[a]liens who
have not yet gained initial admission to this country would present a very different question.”
Zadvydas, 533 U.S. at 682.
The Supreme Court confronts that unaddressed question in Clark v. Martinez, 543 U.S. 371
(2005)(“Clark”). 	In Clark, the Supreme Court applies Zadvydas’ statutory construction to
inadmissible aliens whom the United States had never admitted. Clark, 543 U.S. at 373. Writing
for the Court, Justice Scalia declines to rest the decision on Constitutional Due Process grounds.
See Clark, 543 U.S. at 378. Instead, he reasoned to “give these same words a different meaning
for each category [of removable aliens] would be to invent a statute rather than interpret one.”
Clark, 543 U.S. at 378. Thus, Zadvydas’ temporal limitation applies to inadmissible aliens as a
matter of statutory interpretation, not because the Due Process Clause independently requires it.
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avoidance 	canon, 	because 	“prolonged 	detention 	without 	adequate 	procedural 	protections’
authorized by the provisions ‘would raise serious constitutional concerns.’” Jennings, 583 U.S. at
289 (quoting Rodriguez v. Robbins, 804 F.3d 1060 (9th Cir. 2015), rev’d sub nom. Jennings, 583
U.S. 281). 	Justice Alito rejects the Ninth Circuit’s use of the Constitutional avoidance canon,
holding that the statutory text unambiguously authorizes detention until immigration officers finish
considering asylum applications under § 1225(b)(1)(B)(ii) or until removal proceedings conclude
under § 1225(b)(2)(A). See Jennings, 583 U.S. at 283. Section 1225(b)(1) and (b)(2) state that
applicants 	for 	admission 	“shall 	be 	detained” 	pending 	asylum 	consideration 	or 	removal
proceedings, and § 1226(c) similarly provides that the United States “shall” take into custody
certain criminal aliens and release them from custody “only if” narrow statutory conditions are
met. Jennings, 583 U.S. at 283. Because these provisions specify definite termination points and
employ mandatory language, the Supreme Court concludes that the statutes are not susceptible to
a reading that implicitly imposes periodic bond hearings. See 583 U.S. at 311-12.
In Jennings, the Supreme Court distinguishes Zadvydas, where the Supreme Court
previously reads a reasonableness time limit into 8 U.S.C. § 1231(a)(6) (1994 ed., Supp. V), to
avoid a Constitutional problem. See Jennings, 583 U.S. at 289-99. Justice Alito focuses on the
discretionary language “may be detained” in § 1231(a), and the statute containing no explicit
endpoint, creating ambiguity. Jennings, 583 U.S. at 299. By contrast, the detention provisions in
§ 1225 and § 1226 contain clear commands, and, with defined stopping points, leave no
comparable textual uncertainty for the avoidance cannon to resolve. 	See Jennings, 583 U.S. at
300-01. 	Accordingly, the Supreme Court reverses the Ninth Circuit’s judgment, and disagrees
with the Ninth Circuit’s statutory interpretation and remands the case for consideration of the
detainee’s Constitutional claims in the first instance, expressly declining to decide whether
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prolonged detention under these provisions violates the Due Process Clause. Jennings, 583 U.S.
at 312.
The third recent Supreme Court cases analyzing due process and the INA is Thuraissigiam.
In Thurissigiam, the Supreme Court considers whether 8 U.S.C. § 1252(e)(2)’s limits on review
by federal courts of writ of habeas corpus violates either the Suspension Clause or the Due Process
Clause. See Thuraissigiam, 591 U.S. at 104.20 Respondent Vijayakumar Thuraissigiam is a Sri
Lankan national that crosses the United States’ border “without inspection or an entry document,”
and Border Patrol stops him “within 25 yards of the border.” Thuraissigiam, 591 U.S. at 114. The
United States detains him and places him in expedited removal proceedings under § 1225(b)(1).
See Thuraissigiam, 591 U.S. at 114. Thuraissigiam asserts a fear of returning to Sri Lanka and
seeks asylum under § 1225(b)(1)(A)(ii). See Thuraissigiam, 591 U.S. at 114. The United States
determines Thuraissigiam does not have a credible fear, and an immigration law judge affirms this
determination, placing Thuraissigiam back into removal proceeding. See Thuraissigiam, 591 U.S.
at 114.
Thuraissigiam files a petition of a writ of habeas corpus challenging the credible fear
determination, but the district court dismisses the petition, because § 1252(a)(2) and (e)(2) remove
credible fear determinations from federal courts’ jurisdiction under habeas petitions. 	See
20 “The Suspension Clause provides that ‘[t]he Privilege of the Writ of Habeas Corpus shall
not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require
it.’” 	Thuraissigiam, 591 U.S. at 116 (quoting U. S. Const., Art. I, § 9, cl. 2). 	Because section
1252(e)(2) restricts judicial review in habeas proceedings to whether a petition is an alien, whether
the United States orders the petitioner removed, or whether the petitioner can prove they some
type of lawful permanent residence status, see 8 U.S.C. § 1252(e)(2)(A)-(C), the Ninth Circuit
finds the provision violates Thuraissigiam’s Constitutional rights. See Thuraissigiam v. U.S. Dep’t
of Homeland Sec., 917 F.3d at 1111, n.15. 	The Supreme Court reverses the Ninth Circuit’s
decision, because respondent attempts use of the writ outside its historic role, which in this case is
to have the United States make another credible fear determination. See Thuraissigiam, 591 U.S.
at 118.
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Thuraissigiam, 591 U.S. at 115. The Ninth Circuit reverses the district court, because the Ninth
Circuit concludes that “§ 1252(e)(2) violates the Suspension Clause.” Thuraissigiam, 591 U.S. at
115. The Ninth Circuit states “that respondent ‘has procedural due process rights,’ specifically the
right ‘to expedited removal proceedings that conformed to the dictates of due process.’”
Thuraissigiam, 591 U.S. at 115 (quoting Thuraissigiam v. U.S. Dep’t of Homeland Sec., 917 F.3d
1097 (9th Cir. 2019), rev’d and remanded sub nom. Thuraissigiam, 591 U.S. 103).
Justice Alito, writing for the Court, reverses the Ninth Circuit. 	See Thuraissigiam, 591
U.S. at 140. 	He first holds that § 1252(e)(2)’s limits on habeas review do not violate the
Suspension Clause because the writ, as historically understood at the time of the Founding, does
not extend to providing merits review of exclusion decisions. See Thuraissigiam, 591 U.S. at 118.
Turning to due process, the Supreme Court explains that longstanding precedent draws a sharp
distinction between aliens who have effected entry and those who seek initial admission. 	See
Thuraissigiam, 591 U.S. at 138-39. The Supreme Court reiterates that the Constitution treats an
alien whom the United States has not admitted -- whether the United States physically stops them
at a port of entry, apprehends them shortly after unlawful entry, or paroles the alien into the country
for years -- is, “for due process purposes, as if stopped at the border.” Thuraissigiam, 591 U.S. a
139. 	In that posture, the alien “has only those rights regarding admission that Congress has
provided by statute.” Thuraissigiam, 591 U.S. at 140. Because Congress specifies the procedures
governing credible-fear screening and judicial review of those determinations, the Due Process
Clause requires nothing more regarding Thuraissigiam’s admission. See Thuraissigiam, 591 U.S.
at 140. 	The Supreme Court also emphasizes the structural consequences of adopting the Ninth
Circuit’s approach. 	See Thuraissigiam, 591 U.S. at 139 (stating the rule concerning the United
States’ plenary power to admit or exclude aliens “would be meaningless if it became inoperative
as soon as an arriving alien set foot on U.S. soil”). 	The Supreme Court thus reaffirms that the
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political branches retain plenary authority to define the procedures governing admission
determinations and that courts may not Constitutionalize additional procedural entitlements in the
statue.
Taken together, these cases delineate the Constitutional framework governing immigration
detention and admission. 	Zadvydas establishes that, once an alien effects entry and establishes
presence within the United States, indefinite civil detention raises serious due process concerns
absent a realistic prospect of removal. 	See Zadyvdas, 533 U.S. at 690. 	Jennings clarifies that,
where Congress clearly authorizes detention for defined immigration proceedings, courts may not
rewrite statutes to impose extra-textual temporal limits, leaving the Constitutional questions --
whether the statute violates the Due Process Clause -- to be addressed directly. See Jennings, 583
U.S. at 311-12. Thuraissigiam confirms that aliens whom the United States has not admitted --
whether at the physical border or in the legal posture of as if at the border -- possess only those
procedural rights regarding admission that Congress’ written statutes provide. See Thuraissigiam,
591 U.S. at 139.
The distinction between territorial presence and effected entry doctrines resolves any
tension among these lines of authority. 	Physical presence within the United States generally
confers standing on aliens to invoke Constitutional protections, but the entry fiction permits
Congress to treat certain physically present aliens like those awaiting inspection or paroled for
admission processing as legally remaining at the threshold of entry. 	In that posture, procedural
entitlements flow from statute rather than from the Due Process Clause.
LAW REGARDING THE WRIT OF HABEAS CORPUS
Courts are most familiar with the writ of habeas corpus and its statutory authorization under
28 U.S.C. § 2241. Courts have less occasion to consider, however, habeas petitions that seek relief
other than release from unlawful detention. 	Upon review of relevant case law, tension exists
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between the Supreme Court’s description of habeas as a flexible and “equitable remedy,” Schlup
v. Delo, 513 U.S. 298, 319 (1995), and the Supreme Court’s more traditional understanding that
courts generally do not use habeas to “order relief that neither terminates custody, accelerates the
future date of release from custody, nor reduces the level of custody,” Wilkinson v. Dotson, 544
U.S. 74, 86 (2005)(Scalia, J., concurring). Resolving that tension requires careful attention to the
historical development of the writ, its modern statutory framework, and the Constitutional
principles that define its scope. Accordingly, the Court examines: (i) the history of the writ at
common law and under the federal habeas statutes, including the “finality era,” Thuraissigiam, 591
U.S. at 120; and (ii) modern Supreme Court guidance on the scope of the writ, including its
relationship to the Suspension Clause. Gerald L. Neuman, Habeas Corpus, Executive Detention,
and the Removal of Aliens, 98 Colum. L. Rev. 961, 1015 (1998)(“Neuman”). 	Through this
framework, the Court concludes that habeas is an “adaptable remedy,” Boumediene v. Bush, 553
U.S. 723, 779 (2008)(“Boumediene”), and, while historical practice informs the scope of habeas
relief, it does not confine the writ to be used to release from custody in every instance; rather, in
limited and extraordinary circumstances, habeas may afford relief “as law and justice require,” 28
U.S.C. § 2243, consistent with its Constitutional function and historical purpose, see Schneckloth
v. Bustamonte, 412 U.S. 218, 256 (1973)(Powell, J., concurring)(“No one would now suggest that
this Court be imprisoned by every particular of habeas corpus as it existed in the late 18th and 19th
centuries.”).
1. 	Habeas Corpus: The Great Wit.
The history of the writ of habeas corpus are “well-established.” Neuman at 970.21 “The
writ originated in England as a vehicle for bringing a person before a court in order to facilitate
21 See, e.g., William F. Duker, A Constitutional History of Habeas Corpus 12-94 (1980); 9
W.S. Holdsworth, A History of English Law 104-25 (3d ed. 1944); Rollin C. Hurd, A Treatise on
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proceedings in which his presence was required.” Neuman at 970. The “Great Writ” evolved and
achieves “its celebrity in the constitutional struggles” in the seventeenth century as a remedy
against Political arrests by the King’s council and minister.” Neuman at 971. During this period,
habeas affords that individuals the King arrests are not detained “on executive fiat rather than on
legally recognized grounds . . . and that prisoners would not languish in pretrial detention when
they should be bailed out.” Neuman at 971. Accordingly, the writ of habeas corpus acquires an
association with principle of due process that “individuals should be imprisoned only in
accordance with the law of the land.” Neuman at 971. “This understanding of due process includes
both the guarantee of traditional procedures and the broader notion of the rule of law, that the
grounds of detention must be provided by statute or common law.” Neuman at 971. The framers
of the United States Constitution enshrine the Great Writ in the Constitution stating: “The privilege
of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion
the public Safety may require it.” U.S. Const. art I, § 9, cl. 2. See I.N.S. v. St. Cyr, 533 U.S. 289,
301 (2001)(“St. Cyr”)(stating that “the absolute minimum, the Suspension Clause protects the writ
‘as it existed in 1789’” (quoting Felker v. Turpin, 518 U.S. 651, 663-64 (1996))). The Suspension
Clause does not create the writ, but Chief Justice Marshall interprets the Constitution as obligating
Congress to create “this great constitutional privilege.” Neuman at 974.22 Chief Justice Marshall
concludes Congress creates the writ in the First Judiciary Act of 1789. See Neuman at 974.
the Right of Personal Liberty and on the Writ of Habeas Corpus and the Practice Connected With
It: With a View of the Law of Extradition of Fugitives 73-104 (Albany, W.C. Little & Co. 1858);
Daniel John Meador, Habeas Corpus and Magna Charta: Dualism of Power and Liberty 3-38
(1966); 	R.J. 	Sharpe, 	The 	Law 	of 	Habeas 	Corpus 	1-19 	(1976)(study 	from 	English 	and
Commonwealth perspective).
22 In Ex parte Bollman, 8 U.S. 75 (1807) Chief Justice Marshall states:
Acting under the immediate influence of this injunction, they must have felt, with
peculiar force, the obligation of providing efficient means by which this great constitutional
privilege should receive life and activity; for if the means be not in existence, the privilege
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a. 	The Core of Habeas Petitions, Remedying Unlawful Detention.
The writ of habeas corpus has long functioned as a judicial mechanism for testing the
lawfulness of detention.23 From its origins in English common law through its development in
American jurisprudence, habeas serves as a means by which courts inquire into whether the United
States has lawful authority to restrain an individual’s liberty.24 Historical practice does not confine
itself would be lost, although no law for its suspension should be enacted. 	Under the
impression of this obligation, they give, to all the courts, the power of awarding writs of
habeas corpus.
8 U.S. at 95. Justice Scalia embraces Ex parte Bollman for the proposition that the Suspension
Clause does not have effect without legislation and that history provides context as to what right
the Suspension Clause enshrines. See St. Cyr, 533 U.S. at 340-41 (Scalia, J., dissenting)(stating
that there “no more reason for us to believe, than there was for the Marshall Court to believe, that
the Suspension Clause means anything other than what it says” (referring to Ex parte Bollman, 8
U.S. at 95)).
23 There is a historical debate whether State courts possess authority to issue writs of habeas
corpus directing the release of federal prisoners. 	See Neuman at 974. 	Neuman ultimately
concludes that historical practice does not support the view that the Suspension Clause preserves
state judicial power over federal detention. See Neuman at 975 (“I will not pursue the hypothesis
that the Suspension Clause was intended to preserve state judicial power over federal detention
and has been systematically violated for over a century.”). 	A related historical caution bears
emphasis: the standards governing the writ’s issuance as a safeguard against unlawful executive
detention differ from the doctrinal standards governing habeas as a form of postconviction
collateral review. See Neuman at 962 (“They are conflating the standards for the issuance of the
writ as a remedy for unlawful executive detention with the standards for its use as a means of
postconviction relief.”). Conflating these distinct historical functions risks obscuring the evolution
of habeas jurisprudence in different procedural contexts.
24 Neuman notes that the 1789 Judiciary Act does not define the “standards” for habeas
relief, but Chief Justice Marshall describes the standards as those known to common law. Neuman
at 981-82. Furthermore, in Ex parte Watkins, 28 U.S. 193 (1830), Chief Justice Marshall describes
the writ:
The writ of habeas corpus is a high prerogative writ, known to the common law, the great
object of which is the liberation of those who may be imprisoned without sufficient cause.
It is in the nature of a writ of error, to examine the legality of the commitment. The English
judges, being originally under the influence of the crown, neglected to issue this writ where
the government entertained suspicions which could not be sustained by evidence; and the
writ when issued was sometimes disregarded or evaded, and great individual oppression
was suffered in consequence of delays in bringing prisoners to trial. To remedy this evil
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the concept of “lawfulness,” however, to a single category of legal defect. Neuman at 984 n.126
(discussing the shift of habeas petitions from “isolated constitutional violations by individual
officers or judges” to “the constitutionality of statutes”). Historically, petitioners invoke habeas to
challenge detention on multiple grounds, including: (i) allegations that the custodian acts without
statutory authority, see Ex parte D’Olivera, 7 F. Cas. 853 (C.C.D. Mass. 1813)(holding that a
justice of the peace detains deserting sailors “without color of jurisdiction,” because neither the
common law nor a statute authorizes detainment); see also Thuraissigiam, 591 U.S. at 172
(Sotomayor, J., dissenting); (ii) allegations that an act of Congress is unconstitutional, see Ex parte
Siebold, 100 U.S. 371, 374 (1879)(“The question is whether a party imprisoned . . . upon
conviction of a crime created by and indictable under an unconstitutional act of Congress, maya
be discharged on . . . on habeas corpus.”); or (iii) that the conditions or consequences of
confinement rendered continued detainment unlawful, see Johnson v. Avery, 393 U.S. 483, 485
(1969)(acceptation a petitioner’s “motion for law books and a typewriter” as a petition for a writ
of habeas corpus, before invaliding prison regulations). Thus, habeas operates as an adaptable and
equitable vehicle through which detained individuals may test the legality of their restraint.
Although the historical inquiry into lawfulness takes varied forms, the traditional remedy
associated with habeas remains comparatively focused: release from custody, accelerated release,
or relief directly affecting the fact or duration of confinement. See Preiser v. Rodriguez, 411 U.S.
475, 498 (1973)(“But none of the state prisoners in those cases was challenging the fact or duration
the celebrated habeas corpus act of the 31st of Charles II. was enacted, for the purpose of
securing the benefits for which the writ was given. 	This statute may be referred to as
describing the cases in which relief is, in England, afforded by this writ to a person detained
in custody. It enforces the common law.
Ex parte Watkins, 28 U.S. at 202.
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of his physical confinement itself, and one was seeking immediate release or a speedier release
from that confinement -- the heart of habeas corpus.”).
b. 	The Finality Era.
The “finality era” reveals the breadth of the Great Writ and the durability of the lawfulness
inquiry. The body of case law following the Immigration Act of 1891 represents the “finality era,”
because, 	during 	this 	period, 	Congress 	makes 	“certain 	immigration 	decisions 	‘final.’”
Thuraissigiam, 591 U.S. at 128. 	See Neuman at 1008 (“Dissatisfaction with the courts’
performance led to congressional efforts to confer finality on the decisions of the executive
officials.”). The 1891 provision contains sweeping language stating: “‘All decisions made by the
inspection officers or their assistants toughing the right of any alien to land, when adverse to such
right, shall be final unless appeal be taken to the superintendent of immigration, whose action shall
be subject to review by the Secretary of the Treasury.” Neuman at 1008 (quoting Act of March 3,
1891, ch. 551, § 8, 26 Stat. 1084, 1085). 	In Nishimura Ekiu v. United States, 142 U.S. 651
(1892)(“Nishimura”), the Supreme Court upholds the provisions, while preserving the writ of
habeas corpus “to ascertain whether the restrain is lawful.” 142 U.S. at 660. Thereafter, courts
begin to give immigration officers “findings of fact” conclusiveness while assuring that the
“procedures set out in the 1891 act had been followed.” Thuraissigiam, 591 U.S. at 131-33. See
Neuman at 1010 (stating the Supreme “Court went on to confirm that the immigration statutes did
authorize the exclusion of person likely to become a public charge, that the inspector had been
properly appointed, and that the procedures followed were in accordance with the statute”).
Justice Gray, in Nishimura, pronounces the often-quoted statement that “the decisions of
executive or administrative officers, acting within powers expressly conferred by congress, are due
process of law.” 	142 U.S. at 661. 	See Thuraissigiam, 591 U.S. at 130 (quoting Nishimura);
Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 212 (1953)(“Mezei”). As early as 1903,
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however, the Supreme Court begins to question that pronouncement. See Yamataya v. Fisher, 189
U.S. 86, 100-01 (1903)(“But this court has never held . . . that administrative officers, when
executing the provisions of a statute involving the liberty of persons, may disregard the
fundamental principles that inhere in ‘due process of law.’”). 	The writ of habeas corpus is the
vehicle by which due process reemerges in exclusion and deportation detention. See Kwock Jan
Fat v. White, 253 U.S. 454, 464 (1920)(finding due process violation in officer’s omission of
favorable evidence from record for administrative appeal). For example, in Chin Yow v. United
States, 208 U.S. 8 (1908), the Supreme Court observes that, as between “persons alleging
themselves to be citizens . . . on one side, and the conclusiveness of the commissioner’s fiat, on
the other, when one or the other must give way, the latter must yield.” 208 U.S. at 12. Moreover,
the Supreme Court continues, stating that the United States cannot imprison an alien at the border
“without the process of law to which is given a right.” Chin Yow v. United States, 208 U.S. at 13.
See Thuraissigiam, 591 U.S. at 156 (Breyer, J., concurring)(noting that throughout the “finality
era,” the Supreme Court address procedural claims “that fundamentally under mined the efficacy
of the process prescribed by law”). 	Although the Court reads the historical jurisprudence as
confirming that the petitioners traditionally invoke habeas to challenge unlawful detention on both
factual and procedural grounds -- even where Congress narrowly circumscribes review -- the Court
must address Mezei and the United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537
(1950)(“Knauff”), which continue to shape the modern understanding of when aliens may invoke
the Great Writ to assert due process rights.
Knauff involves an alien challenging her exclusion detention, without due process, through
a habeas petition. See 338 U.S. at 539. Congress authorizes the Attorney General to order “the
exclusion of aliens without a hearing.” 	Knauff, 338 U.S. at 540 (citing 22 U.S.C. § 223). The
petitioner argues that Congress’ authorization is unconstitutional and, furthermore, that the
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regulations the Attorney General creates from Congress’ act are also unconstitutional. See Knauf,
338 U.S. at 542 (“Petitioner contends that the 1941 Act and the regulations thereunder are void to
the extent that they contain unconstitutional delegations of legislative power.”). 	The Supreme
Court rejects the argument that the statute is unconstitutional, stating that “[w]hen Congress
prescribes a procedure concerning the admissibility of aliens, it is not dealing alone with a
legislative power. 	It is implementing an inherent executive power,” and, consequentially,
“[w]hatever the procedure authorized by Congress is, it is due process as far as an alien denied
entry is concerned.” Knauff, 338 U.S. at 542-44. Although the Supreme Court does not entertain
the petitioner’s challenge to Congressional authority, it scrutinizes whether the Attorney General’s
regulations are within the authority Congress grants. 	Knauff, 338 U.S. at 544 (“We find no
substantial merit to petitioner’s contention that the regulations were not ‘reasonable’ as they were
required to be by the 1941 Act.”). What emerges from the Supreme Court’s analysis is a doctrinal
asymmetry. While historical jurisprudence forecloses an excludable alien from invoking the Due
Process Clause to challenge Congress’ legislative choices, the same alien nevertheless may invoke
habeas corpus to test the Executives’ s implementation of those choices. This tension invites closer
examination. Before addressing the asymmetry, the Court turns to Mezei, which is understood as
extending Knauff, for further insight. 	See Neuman at 1017 (“In Mezei, the Majority extended
Knauff.”).
In Mezei, the Supreme Court considers whether the United States may detain for exclusion
an alien indefinitely, because no country will accept him. 	See 345 U.S. at 207. 	The facts are
remarkably different from Knauff, because of the potential length of detention, and because the
respondent lives in the United States for decades before the United States detains him while he
attempts to reenter the country. See Mezei, 345 U.S. at 213 (“Neither respondent’s harborage on
Ellis Island nor his prior residence here transforms this into something other an exclusion
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proceeding.”). As to the length of detention, Justice Clark concludes that the “continued exclusion
[does not] deprive him of any statutory or constitutional right,” and, moreover, “an alien in
respondent’s position is no more ours than theirs.” Mezei, 345 U.S. at 215-16. Regarding the time
respondent spends in the United States, the Supreme Court sees no distinction between him and
arriving aliens, because the respondent “simply left the United States and remained behind the Iron
Curtain for 19 months.” Mezei, 345 U.S. at 214. Accordingly, the Due Process Clause tolerates
exclusion proceedings rather than deportation proceedings.
Now that the Court considers Mezei, it returns to the doctrinal asymmetry the Court
observes in Knauff with respect to how the Supreme Court treats the statute and regulations. Even
where the Supreme Court declines to permit direct due process challenges to Congress’ legislative
judgments concerning arriving aliens, it nevertheless allows the writ of habeas corpus to function
as a vehicle for testing the lawfulness of Executive implementation. See Knauff, 338 U.S. at 542-
44. 	The Due Process Clause requires no more process than Congress elects to provide at the
border, yet habeas persists -- even in its most constrained form -- as a means for detainees to assert
that the Executive exceeds the authority Congress confers. 	For that reason, the Supreme Court
tests whether the regulations in Knauff are reasonable. In areas of policy where Congress vests
the Executive with discretion over factual determinations, judicial review is correspondingly
limited, with courts intervening only when the Constitution mandates oversight, such as arbitrary
or capricious determinations. 	Mezei illustrates that limitation, because the Supreme Court
recognizes the issues of national security in the midst of the Cold War. Osorio-Martinez v. Att’y
Gen. United States of Am., 893 F.3d 153, 174 (3d Cir. 2018)(“Osorio-Martinez”)(stating that “this
case stands in stark contrast to the key precedents we relied on in Castro [Knauff and Mezei]-- two
Cold War-era decisions about aliens detained on Ellis Island at the threshold of entry”). 	For
questions of law, however, the Supreme Court preserves habeas as a mechanism through which
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the judiciary fulfills its Constitutional duty to say what the law is. See St. Cyr, 533 U.S. at 304-05
(“In sum, even assuming that the Suspension Clause protects only the writ as it existed in 1789,
there is substantial evidence to support the proposition that pure questions of law like the one
raised by the respondent in this case could have been answered in 1789 by a common-law judge
with power to issue the writ of habeas corpus.”). 	Read together, these decisions indicates that
habeas review functions less as a vehicle for expanding individual rights in this context than as a
structural safeguard ensuring that Executive detention remains subject to judicial determination of
legal authority. Regardless of the level of deference afforded to the political branches or the factual
postures of the case, the Great Writ endures as a safeguard against unchecked governmental
detention.
That the Great Writ endures is without dispute. The Court now turns to the more difficult
question -- whether habeas retains the contours that the Framers enshrine in the Suspension Clause
and that the Judiciary Act of 1789 codifies.
2. 	The Writ of Habeas Corpus Modern Parameters.
The Supreme Court “has been careful not to foreclose the possibility that the protections
of the Suspension Clause have expanded along with post-1789 developments that define the
present scope of the writ.” 	Boumediene, 553 U.S. at 746. 	See Thuraissigiam, 591 U.S. at 152
(Breyer, J., concurring)(“Habeas corpus, as we have said, is an ‘adaptable remedy,’ and the ‘precise
application 	and 	scope’ 	of 	the 	review 	it 	guarantees 	may 	change 	‘depending 	upon 	the
circumstances.’” (quoting Boumediene, 553 U.S. at 779; see id., at 813 (Roberts, C.J.,
dissenting))). Indeed, the Supreme Court goes to great lengths to avoid answering what the writ’s
scope is under the modern habeas statute. 	See Thurissigiam, 591 U.S. at 126 (“But respondent
does not ask us to hold that the Suspension Clause guarantees the writ as it might have evolved
since the adoption of the Constitution. On the contrary, as noted at the outset of this discussion,
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he rests his argument on ‘the writ as it existed in 1789.’” (quoting Brief for Respondent 26, n.12.));
Bell v. Wolfish, 441 U.S. 520, 526 n.6 (1979)(“Thus, we leave to another day the question of the
propriety of using a writ of habeas corpus to obtain review of the conditions of confinement, as
distinct from the fact or length of the confinement itself.”); Preiser v. Rodriguez, 411 U.S. at 499
(“But we need not in this case explore the appropriate limits of habeas corpus as an alternative
remedy to a proper action under § 1983. That question is not before us.”). What remains clear,
notwithstanding its doctrinal evolution, is that habeas corpus continues to reflect its historical core.
ANALYSIS
The Court carefully reviews the PFRD and the relevant pleadings. In the PFRD, Magistrate
Judge Robbenhaar recommends that the Court make four conclusions. 	First, Magistrate Judge
Robbenhaar recommends that the Court conclude that Loza and Castillo’s removal proceedings
should not be enjoined during their challenge to their continued detention pursuant to Sections
1225 and 1226, although the Court should not conclude that the petition is moot until the time to
appeal the removal order has expired, or if a timely appeal is filed, until the BIA issues a decision
on that appeal. 	See PFRD at 11. 	Second, Magistrate Judge Robbenhaar recommends that the
Court conclude that Loza and Castillo cannot be properly detained under § 1225(b)(2), but instead
must be detained under § 1226(a) and either released -- Castillo -- or granted a bond hearing --
Loza. 	See PFRD at 13, 19. 	Third, Magistrate Judge Robbenhaar recommends that the Court
conclude that the burden at the bond hearing shift to the United States to prove by clear-and-
convincing evidence that petitioner is a flight risk or danger to the community in order to deny
bond. 	See PFRD at 24. 	Finally, Magistrate Judge Robbenhaar recommends that the Court
conclude that, pursuant to the All Writs Act, it will enter an injunction preventing Loza and
Castillo’s removal from the United States and/or transfer from the District of New Mexico during
the pendency of these habeas proceedings. See PFRD at 24. Based on these recommendations,
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he recommends that: (i) the Court grant Petitioners’ Amended Motion for Temporary Restraining
Order, filed November 6, 2025 (Doc. 5)(“TRO”) in part and deny it in part; (ii) the Court deny the
request for enjoining the removal proceedings of Loza and Castillo without prejudice; (iii) Loza
should be granted a bond hearing, at which the United States bears the burden of proof by clear-
and-convincing evidence, and if Loza is not afforded a bond hearing within seven days of the Court
order, Loza should be released; (iv) Castillo should be released with no additional requirements
other than the bond conditions previously ordered by the IJ; and (v) the request to prohibit
Respondents from transferring Loza and Castillo out of the District of New Mexico and the United
States should be granted pursuant to the All Writs Act. See PFRD at 26. Pursuant to rule 72(b) of
the Federal Rules of Civil Procedure, the Court conducts a de novo review of the record and all
parts of the Magistrate Judge Robbenhaar’s PFRD to which the Federal Respondents properly
object. 	The Federal Respondents object to (i) the recommendation that § 1226 applies to
Petitioners’ detention, instead of § 1225(b)(2); (ii) the recommendation that Petitioners’ due
process rights are violated because of detention under § 1225(b)(2) instead of § 1226; (iii) the
recommendation for burden shifting at future bond review hearings; (iv) the recommendation for
relief not sought by Petitioners in their TRO -- ordering compliance with the due process
protections to which Petitioners are entitled; (v) the recommendation to enjoin removal from the
United States; and (v) the characterization of its discretionary stay request. See Objections at 2,
11, 13-14. After conducting this de novo review, the Court concludes that there are sound reasons
in the applicable law and the relevant facts to overrule some and sustain some of the Objections to
Magistrate Judge Robbenhaar’s PFRD and accordingly the Court adopts some of the PFRD’s
recommendations and declines to adopt other parts of the PFRD.
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I. 	THE COURT OVERRULES THE FEDERAL RESPONDENTS’ OBJECTION TO
MAGISTRATE JUDGE ROBBENHAAR’S CONCLUSION IN THE PFRD THAT 8
U.S.C. § 1226(a) GOVERNS PETITIONERS’ DETENTION.25
The Federal Respondents argue that the Petitioners are subject to mandatory detention
under § 1225(b)(2), because they are aliens present in the United States without the United States
admitting the Petitioners lawfully into the United States, and that, therefore, the Court should not
grant the Petitioners either immediate release or a bond hearing. See Objections at 8. The Court
concludes that the Federal Respondents are incorrect in concluding that they can hold either Loza
or Castillo under § 1225(b)(2). While Loza and Castillo are applicants for admission, they are not
seeking admission such that § 1225(b)(2) applies, and because they do not fall under § 1225’s
scope, the United States must detain them under § 1226(a), and grant them whatever process the
statute affords them.
The relevant language of 8 U.S.C. § 1225(b)(2) states:
(A) 	In General
Subject to subparagraphs (B) and (C), 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 1229(a) of this title.
(B) 	Exception - Subparagraph A shall not apply to an alien –
(i) 	who is a crewman
(ii) 	to whom paragraph (1) applies, or
(iii) 	who is a stowaway.
8 U.S.C. § 1225(b)(2). Section 1225(b)(2) applies only to aliens who are applicants for admission
-- "an alien present in the United States who has not been admitted or who arrives in the United
25 The Court does not, however, order any relief consistent with this ruling, because the
Court sustains a later Objection in which the Federal Respondents object to the granting of relief
beyond the scope of the Petitioners’ TRO filings. See infra Section IV.
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States” -- who seek admission, and do not fall within § 1225(b)(1)’s scope. 8 U.S.C. § 1225(a)(1).
Section 1225(b)(2) does not cover an alien who is an applicant for admission, and who is present
in the United States for more than two consecutive years without any application that indicates the
alien is actively seeking admission; the United States instead must detain those whom § 1225(b)(1)
and § 1225(b)(2) does not cover under § 1226(a).
A. 	LOZA 	IS 	NOT 	SEEKING ADMISSION 	SUCH 	THAT 	HE 	CAN 	BE
DETAINED 	UNDER 	§ 	1225(b)(2), 	AND 	ACCORDINGLY 	MUST 	BE
DETAINED UNDER § 1226(a).
Loza is a Mexican citizen and national who first arrives in the United States without
inspection around August, 1999. 	See PFRD at 4. 	On August 16, 2025, Loza is “‘detained at a
check point located in the interior of the United States.’” 	PFRD at 4 (quoting Class Action
Complaint and Petition for Writ of Habeas Corpus, ¶ 52, at 16, filed October 29, 2025
(Doc.1)(“Class Action Complaint”). 	Loza is an applicant for admission, because he is an alien
present in the United States without admission. See § 1225(a)(1)(“An alien present in the United
States who has not been admitted or who arrives in the United States . . . shall be deemed for the
purposes of this chapter an applicant for admission”). The Court therefore looks first to whether
the United States may properly detain Loza under § 1225(b)(1). The Court determines that the
United States may not detain Loza under § 1225(b)(1), because he is not an arriving alien and is
not an alien present in the United States continuously for less than two years whom an immigration
officer has deemed inadmissible under §§ 1182(a)(6)(C), (a)(7). Accordingly, the Court next looks
to whether the United States may detain Loza under § 1225(b)(2). 	The United States does not
apprehend Loza at the United States border, but instead at a border checkpoint in the country’s
interior. 	See PFRD at 4. 	There is no indication that Loza has any pending application which
indicates that he is seeking admission. 	The only way, therefore, that Loza can be subject to
mandatory detention under § 1225(b)(2) is if the interior checkpoint at which he is detained is
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treated as the border, such that the law considers Loza to be seeking admission by entering the
checkpoint.26
26 While the Court need not decide the issue for purposes of this case, and given the habeas
petitions that the federal courts are seeing right now, the courts may never need to decide the issue,
but the Court comments on the issue whether an alien, merely by showing up at the airport or
border check point, is “an alien seeking admission” for purposes of being an “other alien” in §
1225(b)(2). At first glance, a lay reading suggests that an alien coming through a checkpoint is
“an alien seeking admission.” 	8 U.S.C. § 1225(b)(2). 	A closer reading of the statute’s words
suggest otherwise.
An applicant for admission includes an “alien who arrives in the United States . . . at a
designated port of arrival.” 8 U.S.C. § 1225(a)(1). Section 1225(a)(3) states that “[a]ll aliens . . .
who are applicants for admission or otherwise seeking admission . . . shall be inspected by
immigration officers.” 	8 U.S.C. § 1225(a)(3). 	Presumably what the immigration officers are
inspecting is paperwork. Section 1225(a)(3) suggests that “applicants for admission” and aliens
who are “otherwise seeking admission” are different groups. 8 U.S.C. §1225(a)(3). Congress uses
a phrase similar to “seeking admission” in § 1225(a) when it talks about “application for
admission,” “applying for admission,” and “withdraw the application for admission.” 	8 U.S.C.
1225(a)(4). “Applications” and “applying” and “withdraw the application” sound like they involve
paperwork. 8 U.S.C. § 1225(a)(4). Section 1225(a)(5) talks about “statements” being under oath
when an applicant for admission is providing information “of the applicant in seeking admission.”
8 U.S.C. § 1225(a)(5). Again, that appears to involve paperwork. Hence, when § 1225(b)(2) uses
the phrase “the examining immigration officer determines that an alien seeking admission,” 8
U.S.C. 	1225(b)(2), the phrase suggests that the examining officers is reviewing paper and not
meeting “an alien . . . who is arriving.” 8 U.S.C. § 1225(b)(1)(i).
There are other reasons why an alien “seeking admission,” is not the same as an alien
“arriving in the United States.” 8 USC § 1225(b)(2). Section 1225(b)(1) covers “Inspection of
aliens arriving in the United States,” and § 1225(b)(1) deals with screening of, among other aliens,
“an alien . . . who is arriving in the United States.” 8 U.S.C. § 1225(b)(1). Section 1225(b)(1)
authorizes immigration officers to conduct expedited removal for specified categories of arriving
aliens 	whom 	the 	officers 	determine 	to 	be 	inadmissible 	for 	reasons 	including 	fraud 	or
misrepresentation, see 8 U.S.C. § 1182(a)(6)(C), or a lack of valid entry documents, see 8 U.S.C.
§ 1182(a)(7). 	Section 1182(a) has eight other reasons for inadmissibility, and all aliens
inadmissible for those reasons are subject to normal removal under § 1225(b)(2). 	The ten
inadmissibility provisions are:
(a) 	Classes of aliens ineligible for visas or admission
Except as otherwise provided in this chapter, aliens who are inadmissible under the
following paragraphs are ineligible to receive visas and ineligible to be admitted to
the United States:
(1) 	Health-related grounds
(A) 	In general
Any alien--
(i) 	who is determined (in accordance with regulations prescribed by the
Secretary of Health and Human Services) to have a communicable disease
of public health significance;1
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(ii) 	except as provided in subparagraph (C), who seeks admission as an
immigrant, or who seeks adjustment of status to the status of an alien
lawfully admitted for permanent residence, and who has failed to present
documentation of having received vaccination against vaccine-preventable
diseases, which shall include at least the following diseases: mumps,
measles, rubella, polio, tetanus and diphtheria toxoids, pertussis, influenza
type B and hepatitis B, and any other vaccinations against vaccine-
preventable 	diseases 	recommended 	by 	the Advisory 	Committee 	for
Immunization Practices,
(iii) 	who is determined (in accordance with regulations prescribed by the
Secretary of Health and Human Services in consultation with the Attorney
General)--
(I) 	to have a physical or mental disorder and behavior associated with the
disorder that may pose, or has posed, a threat to the property, safety, or
welfare of the alien or others, or
(II) 	to have had a physical or mental disorder and a history of behavior
associated with the disorder, which behavior has posed a threat to the
property, safety, or welfare of the alien or others and which behavior is
likely to recur or to lead to other harmful behavior, or
(iv) 	who is determined (in accordance with regulations prescribed by the
Secretary of Health and Human Services) to be a drug abuser or addict,is
inadmissible.
(B) 	Waiver authorized
For provision authorizing waiver of certain clauses of subparagraph (A), see
subsection (g).
(C) 	Exception from immunization requirement for adopted children 10 years of
age or younger Clause (ii) of subparagraph (A) shall not apply to a child
who--
(i) 	is 10 years of age or younger,
(ii) 	is described in subparagraph (F) or (G) of section 1101(b)(1) of this title;1
and
(iii) 	is seeking an immigrant visa as an immediate relative under section 1151(b)
of this title, if, prior to the admission of the child, an adoptive parent or
prospective adoptive parent of the child, who has sponsored the child for
admission as an immediate relative, has executed an affidavit stating that
the parent is aware of the provisions of subparagraph (A)(ii) and will ensure
that, within 30 days of the child's admission, or at the earliest time that is
medically appropriate, the child will receive the vaccinations identified in
such subparagraph.
(2) 	Criminal and related grounds
(A) 	Conviction of certain crimes
(i) 	In general
Except as provided in clause (ii), any alien convicted of, or who admits
having committed, or who admits committing acts which constitute the
essential elements of--
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(I) 	a crime involving moral turpitude (other than a purely political offense) or
an attempt or conspiracy to commit such a crime, or
(II) 	a violation of (or a conspiracy or attempt to violate) any law or regulation
of a State, the United States, or a foreign country relating to a controlled
substance (as defined in section 802 of Title 21), is inadmissible.
(ii) 	Exception
Clause (i)(I) shall not apply to an alien who committed only one crime if--
(I) 	the crime was committed when the alien was under 18 years of age, and the
crime was committed (and the alien released from any confinement to a
prison or correctional institution imposed for the crime) more than 5 years
before the date of application for a visa or other documentation and the date
of application for admission to the United States, or
(II) 	the maximum penalty possible for the crime of which the alien was convicted
(or which the alien admits having committed or of which the acts that the
alien admits having committed constituted the essential elements) did not
exceed imprisonment for one year and, if the alien was convicted of such
crime, the alien was not sentenced to a term of imprisonment in excess of 6
months (regardless of the extent to which the sentence was ultimately
executed).
(B) 	Multiple criminal convictions
Any alien convicted of 2 or more offenses (other than purely political
offenses), regardless of whether the conviction was in a single trial or
whether the offenses arose from a single scheme of misconduct and
regardless of whether the offenses involved moral turpitude, for which the
aggregate sentences to confinement were 5 years or more is inadmissible.
(C) 	Controlled substance traffickers
Any alien who the consular officer or the Attorney General knows or has
reason to believe--
(i) 	is or has been an illicit trafficker in any controlled substance or in any listed
chemical (as defined in section 802 of Title 21), or is or has been a knowing
aider, abettor, assister, conspirator, or colluder with others in the illicit
trafficking in any such controlled or listed substance or chemical, or
endeavored to do so; or
(ii) 	is the spouse, son, or daughter of an alien inadmissible under clause (i), has,
within the previous 5 years, obtained any financial or other benefit from the
illicit activity of that alien, and knew or reasonably should have known that
the financial or other benefit was the product of such illicit activity, is
inadmissible.
(D) 	Prostitution and commercialized vice
Any alien who--
(i) 	is coming to the United States solely, principally, or incidentally to engage
in prostitution, or has engaged in prostitution within 10 years of the date of
application for a visa, admission, or adjustment of status,
(ii) 	directly or indirectly procures or attempts to procure, or (within 10 years of
the date of application for a visa, admission, or adjustment of status)
procured or attempted to procure or to import, prostitutes or persons for the
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purpose of prostitution, or receives or (within such 10-year period) received,
in whole or in part, the proceeds of prostitution, or
(iii) 	is 	coming 	to 	the 	United 	States 	to 	engage 	in 	any 	other 	unlawful
commercialized vice, whether or not related to prostitution, is inadmissible.
(E) 	Certain aliens involved in serious criminal activity who have asserted
immunity from prosecution
Any alien--
(i) 	who has committed in the United States at any time a serious criminal
offense (as defined in section 1101(h) of this title),
(ii) 	for whom immunity from criminal jurisdiction was exercised with respect
to that offense,
(iii) 	who as a consequence of the offense and exercise of immunity has departed
from the United States, and
(iv) 	who has not subsequently submitted fully to the jurisdiction of the court in
the United States having jurisdiction with respect to that offense, is
inadmissible.
(F) 	Waiver authorized
For provision authorizing waiver of certain subparagraphs of this paragraph,
see subsection (h).
(G) 	Foreign government officials who have committed particularly severe
violations of religious freedom
Any alien who, while serving as a foreign government official, was
responsible for or directly carried out, at any time, particularly severe
violations of religious freedom, as defined in section 6402 of Title 22, is
inadmissible.
(H) 	Significant traffickers in persons
(i) 	In general
Any alien who commits or conspires to commit human trafficking offenses
in the United States or outside the United States, or who the consular officer,
the Secretary of Homeland Security, the Secretary of State, or the Attorney
General knows or has reason to believe is or has been a knowing aider,
abettor, assister, conspirator, or colluder with such a trafficker in severe
forms of trafficking in persons, as defined in the section 7102 of Title 22, is
inadmissible.
(ii) 	Beneficiaries of trafficking
Except as provided in clause (iii), any alien who the consular officer or the
Attorney General knows or has reason to believe is the spouse, son, or
daughter of an alien inadmissible under clause (i), has, within the previous
5 years, obtained any financial or other benefit from the illicit activity of
that alien, and knew or reasonably should have known that the financial or
other benefit was the product of such illicit activity, is inadmissible.
(iii) 	Exception for certain sons and daughters
Clause (ii) shall not apply to a son or daughter who was a child at the time
he or she received the benefit described in such clause.
(I) 	Money laundering
Any alien--
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(i) 	who a consular officer or the Attorney General knows, or has reason to
believe, has engaged, is engaging, or seeks to enter the United States to
engage, in an offense which is described in section 1956 or 1957 of Title 18
(relating to laundering of monetary instruments); or
(ii) 	who a consular officer or the Attorney General knows is, or has been, a
knowing aider, abettor, assister, conspirator, or colluder with others in an
offense which is described in such section; is inadmissible.
(3) 	Security and related grounds
(A) 	In general
Any alien who a consular officer or the Attorney General knows, or has
reasonable ground to believe, seeks to enter the United States to engage
solely, principally, or incidentally in--
(i) 	any activity (I) to violate any law of the United States relating to espionage
or sabotage or (II) to violate or evade any law prohibiting the export from
the United States of goods, technology, or sensitive information,
(ii) 	any other unlawful activity, or
(iii) 	any activity a purpose of which is the opposition to, or the control or
overthrow of, the Government of the United States by force, violence, or
other unlawful means, is inadmissible.
(B) 	Terrorist activities
(i) 	In general
Any alien who--
(I) 	has engaged in a terrorist activity;
(II) 	a consular officer, the Attorney General, or the Secretary of Homeland
Security knows, or has reasonable ground to believe, is engaged in or is
likely to engage after entry in any terrorist activity (as defined in clause
(iv));
(III) 	has, under circumstances indicating an intention to cause death or serious
bodily harm, incited terrorist activity;
(IV) 	is a representative (as defined in clause (v)) of--
(aa) 	a terrorist organization (as defined in clause (vi)); or
(bb) 	a political, social, or other group that endorses or espouses terrorist
activity;
(V) 	is a member of a terrorist organization described in subclause (I) or (II) of
clause (vi);
(VI) 	is a member of a terrorist organization described in clause (vi)(III), unless
the alien can demonstrate by clear and convincing evidence that the alien
did not know, and should not reasonably have known, that the organization
was a terrorist organization;
(VII) endorses or espouses terrorist activity or persuades others to endorse or
espouse terrorist activity or support a terrorist organization;
(VIII) has received military-type training (as defined in section 2339D(c)(1) of
Title 18) from or on behalf of any organization that, at the time the training
was received, was a terrorist organization (as defined in clause (vi)); or
(IX) 	is 	the spouse 	or 	child of 	an 	alien 	who 	is inadmissible 	under 	this
subparagraph, if the activity causing the alien to be found inadmissible
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occurred within the last 5 years, is inadmissible. An alien who is an officer,
official, 	representative, 	or 	spokesman 	of 	the 	Palestine 	Liberation
Organization is considered, for purposes of this chapter, to be engaged in a
terrorist activity.
(ii) 	Exception
Subclause (IX) of clause (i) does not apply to a spouse or child--
(I) 	who did not know or should not reasonably have known of the activity
causing the alien to be found inadmissible under this section; or
(II) 	whom the consular officer or Attorney General has reasonable grounds to
believe has renounced the activity causing the alien to be found inadmissible
under this section.
(iii) 	“Terrorist activity” defined
As used in this chapter, the term “terrorist activity” means any activity
which is unlawful under the laws of the place where it is committed (or
which, if it had been committed in the United States, would be unlawful
under the laws of the United States or any State) and which involves any of
the following:
(I) 	The highjacking or sabotage of any conveyance (including an aircraft,
vessel, or vehicle).
(II) 	The seizing or detaining, and threatening to kill, injure, or continue to
detain, another individual in order to compel a third person (including a
governmental organization) to do or abstain from doing any act as an
explicit or implicit condition for the release of the individual seized or
detained.
(III) 	A violent attack upon an internationally protected person (as defined in
section 1116(b)(4) of Title 18) or upon the liberty of such a person.
(IV) 	An assassination.
(V) 	The use of any--
(a) 	biological agent, chemical agent, or nuclear weapon or device, or
(b) 	explosive, firearm, or other weapon or dangerous device (other than for
mere personal monetary gain), with intent to endanger, directly or indirectly,
the safety of one or more individuals or to cause substantial damage to
property.
(VI) 	A threat, attempt, or conspiracy to do any of the foregoing.
(iv) 	“Engage in terrorist activity” defined
As used in this chapter, the term “engage in terrorist activity” means, in an
individual capacity or as a member of an organization--
(I) 	to commit or to incite to commit, under circumstances indicating an
intention to cause death or serious bodily injury, a terrorist activity;
(II) 	to prepare or plan a terrorist activity;
(III) 	to gather information on potential targets for terrorist activity;
(IV) 	to solicit funds or other things of value for--
(aa) 	a terrorist activity;
(bb) 	a terrorist organization described in clause (vi)(I) or (vi)(II); or
(cc) 	a terrorist organization described in clause (vi)(III), unless the
solicitor can demonstrate by clear and convincing evidence that he
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did not know, and should not reasonably have known, that the
organization was a terrorist organization;
(V) 	to solicit any individual--
(aa) 	to engage in conduct otherwise described in this subsection;
(bb) 	for membership in a terrorist organization described in clause (vi)(I)
or (vi)(II); or
(cc) 	for membership in a terrorist organization described in clause
(vi)(III) unless the solicitor can demonstrate by clear and convincing
evidence that he did not know, and should not reasonably have
known, that the organization was a terrorist organization; or
(VI) 	to commit an act that the actor knows, or reasonably should know, affords
material support, including a safe house, transportation, communications,
funds, 	transfer 	of 	funds 	or 	other 	material 	financial 	benefit, 	false
documentation or identification, weapons (including chemical, biological,
or radiological weapons), explosives, or training--
(aa) 	for the commission of a terrorist activity;
(bb) 	to any individual who the actor knows, or reasonably should know,
has committed or plans to commit a terrorist activity;
(cc) 	to a terrorist organization described in subclause (I) or (II) of clause
(vi) or to any member of such an organization; or
(dd) 	to a terrorist organization described in clause (vi)(III), or to any
member of such an organization, unless the actor can demonstrate
by clear and convincing evidence that the actor did not know, and
should not reasonably have known, that the organization was a
terrorist organization.
(v) 	“Representative” defined
As used in this paragraph, the term “representative” includes an officer,
official, or spokesman of an organization, and any person who directs,
counsels, commands, or induces an organization or its members to engage
in terrorist activity.
(vi) 	“Terrorist organization” defined
As used in this section, the term “terrorist organization” means an
organization--
(I) 	designated under section 1189 of this title;
(II) 	otherwise designated, upon publication in the Federal Register, by the
Secretary of State in consultation with or upon the request of the Attorney
General or the Secretary of Homeland Security, as a terrorist organization,
after finding that the organization engages in the activities described in
subclauses (I) through (VI) of clause (iv); or
(III) 	that is a group of two or more individuals, whether organized or not, which
engages in, or has a subgroup which engages in, the activities described in
subclauses (I) through (VI) of clause (iv).
(C)Foreign policy
(i) 	In general
An alien whose entry or proposed activities in the United States the
Secretary of State has reasonable ground to believe would have potentially
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serious adverse foreign policy consequences for the United States is
inadmissible.
(ii) 	Exception for officials
An alien who is an official of a foreign government or a purported
government, or who is a candidate for election to a foreign government
office during the period immediately preceding the election for that office,
shall not be excludable or subject to restrictions or conditions on entry into
the United States under clause (i) solely because of the alien's past, current,
or expected beliefs, statements, or associations, if such beliefs, statements,
or associations would be lawful within the United States.
(iii) 	Exception for other aliens
An alien, not described in clause (ii), shall not be excludable or subject to
restrictions or conditions on entry into the United States under clause (i)
because of the alien's past, current, or expected beliefs, statements, or
associations, if such beliefs, statements, or associations would be lawful
within the United States, unless the Secretary of State personally determines
that the alien's admission would compromise a compelling United States
foreign policy interest.
(iv) 	Notification of determinations
If a determination is made under clause (iii) with respect to an alien, the
Secretary of State must notify on a timely basis the chairmen of the
Committees 	on 	the 	Judiciary 	and 	Foreign Affairs 	of 	the 	House 	of
Representatives and of the Committees on the Judiciary and Foreign
Relations of the Senate of the identity of the alien and the reasons for the
determination.
(D) 	Immigrant membership in totalitarian party
(i) 	In general
Any immigrant who is or has been a member of or affiliated with the
Communist or any other totalitarian party (or subdivision or affiliate
thereof), domestic or foreign, is inadmissible.
(ii) 	Exception for involuntary membership
Clause (i) shall not apply to an alien because of membership or affiliation if
the alien establishes to the satisfaction of the consular officer when applying
for a visa (or to the satisfaction of the Attorney General when applying for
admission) that the membership or affiliation is or was involuntary, or is or
was solely when under 16 years of age, by operation of law, or for purposes
of obtaining employment, food rations, or other essentials of living and
whether necessary for such purposes.
(iii) 	Exception for past membership
Clause (i) shall not apply to an alien because of membership or affiliation if
the alien establishes to the satisfaction of the consular officer when applying
for a visa (or to the satisfaction of the Attorney General when applying for
admission) that--
(I) 	the membership or affiliation terminated at least--
(a) 	2 years before the date of such application, or
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(b) 	5 years before the date of such application, in the case of an alien whose
membership or affiliation was with the party controlling the government of
a foreign state that is a totalitarian dictatorship as of such date, and
(II) 	the alien is not a threat to the security of the United States.
(iv) 	Exception for close family members
The Attorney General may, in the Attorney General's discretion, waive the
application of clause (i) in the case of an immigrant who is the parent,
spouse, son, daughter, brother, or sister of a citizen of the United States or
a spouse, son, or daughter of an alien lawfully admitted for permanent
residence for humanitarian purposes, to assure family unity, or when it is
otherwise in the public interest if the immigrant is not a threat to the security
of the United States.
(E) 	Participants in Nazi persecution, genocide, or the commission of any act of
torture or extrajudicial killing
(i) 	Participation in Nazi persecutions
Any alien who, during the period beginning on March 23, 1933, and ending
on May 8, 1945, under the direction of, or in association with--
(I) 	the Nazi government of Germany,
(II) 	any government in any area occupied by the military forces of the Nazi
government of Germany,
(III) 	any government established with the assistance or cooperation of the Nazi
government of Germany, or
(IV) 	any government which was an ally of the Nazi government of Germany,
ordered, incited, assisted, or otherwise participated in the persecution of any
person because of race, religion, national origin, or political opinion is
inadmissible.
(ii) 	Participation in genocide
Any alien who ordered, incited, assisted, or otherwise participated in
genocide, as defined in section 1091(a) of Title 18, is inadmissible.
(iii) 	Commission of acts of torture or extrajudicial killings
Any alien who, outside the United States, has committed, ordered, incited,
assisted, or otherwise participated in the commission of--
(I) 	any act of torture, as defined in section 2340 of Title 18; or
(II) 	under color of law of any foreign nation, any extrajudicial killing, as defined
in section 3(a) of the Torture Victim Protection Act of 1991 (28 U.S.C. 1350
note), is inadmissible.
(F) 	Association with terrorist organizations
Any alien who the Secretary of State, after consultation with the Attorney
General, or the Attorney General, after consultation with the Secretary of
State, determines has been associated with a terrorist organization and
intends while in the United States to engage solely, principally, or
incidentally in activities that could endanger the welfare, safety, or security
of the United States is inadmissible.
(G) 	Recruitment or use of child soldiers
Any alien who has engaged in the recruitment or use of child soldiers in
violation of section 2442 of Title 18 is inadmissible.
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(4) 	Public charge
(A) 	In general
Any alien who, in the opinion of the consular officer at the time of
application for a visa, or in the opinion of the Attorney General at the time
of application for admission or adjustment of status, is likely at any time to
become a public charge is inadmissible.
(B) 	Factors to be taken into account
(i) 	In determining whether an alien is inadmissible under this paragraph, the
consular officer or the Attorney General shall at a minimum consider the
alien's--
(I) 	age;
(II) 	health;
(III) 	family status;
(IV) 	assets, resources, and financial status; and
(V) 	education and skills.
(ii) 	In addition to the factors under clause (i), the consular officer or the
Attorney General may also consider any affidavit of support under section
1183a of this title for purposes of exclusion under this paragraph.
(C) 	Family-sponsored immigrants
Any alien who seeks admission or adjustment of status under a visa number
issued under section 1151(b)(2) or 1153(a) of this title is inadmissible under
this paragraph unless--
(i) 	the alien has obtained--
(I) 	status as a spouse or a child of a United States citizen pursuant to clause (ii),
(iii), or (iv) of section 1154(a)(1)(A) of this title;
(II) 	classification pursuant to clause (ii) or (iii) of section 1154(a)(1)(B) of this
title; or
(III) 	classification or status as a VAWA self-petitioner; or
(ii) 	the person petitioning for the alien's admission (and any additional sponsor
required under section 1183a(f) of this title or any alternative sponsor
permitted under paragraph (5)(B) of such section) has executed an affidavit
of support described in section 1183a of this title with respect to such alien.
(D) 	Certain employment-based immigrants
Any alien who seeks admission or adjustment of status under a visa number
issued under section 1153(b) of this title by virtue of a classification petition
filed by a relative of the alien (or by an entity in which such relative has a
significant ownership interest) is inadmissible under this paragraph unless
such relative has executed an affidavit of support described in section 1183a
of this title with respect to such alien.
(E) Special rule for qualified alien victims
Subparagraphs (A), (B), and (C) shall not apply to an alien who--
(i) 	is a VAWA self-petitioner;
(ii) 	is an applicant for, or is granted, nonimmigrant status under section
1101(a)(15)(U) of this title; or
(iii) 	is a qualified alien described in section 1641(c) of this title.
(5) 	Labor certification and qualifications for certain immigrants
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(A) 	Labor certification
(i) 	In general
Any alien who seeks to enter the United States for the purpose of performing
skilled or unskilled labor is inadmissible, unless the Secretary of Labor has
determined and certified to the Secretary of State and the Attorney General
that--
(I) 	there are not sufficient workers who are able, willing, qualified (or equally
qualified in the case of an alien described in clause (ii)) and available at the
time of application for a visa and admission to the United States and at the
place where the alien is to perform such skilled or unskilled labor, and
(II) 	the employment of such alien will not adversely affect the wages and
working conditions of workers in the United States similarly employed.
(ii) 	Certain aliens subject to special rule
For purposes of clause (i)(I), an alien described in this clause is an alien
who--
(I) 	is a member of the teaching profession, or
(II) 	has exceptional ability in the sciences or the arts.
(iii) 	Professional athletes
(I) 	In general
A certification made under clause (i) with respect to a professional athlete
shall remain valid with respect to the athlete after the athlete changes
employer, if the new employer is a team in the same sport as the team which
employed the athlete when the athlete first applied for the certification.
(II) 	“Professional athlete” defined
For purposes of subclause (I), the term “professional athlete” means an
individual who is employed as an athlete by--
(aa) 	a team that is a member of an association of 6 or more professional
sports teams whose total combined revenues exceed $10,000,000
per year, if the association governs the conduct of its members and
regulates the contests and exhibitions in which its member teams
regularly engage; or
(bb) 	any minor league team that is affiliated with such an association.
(iv) 	Long delayed adjustment applicants
A certification made under clause (i) with respect to an individual whose
petition is covered by section 1154(j) of this title shall remain valid with
respect to a new job accepted by the individual after the individual changes
jobs or employers if the new job is in the same or a similar occupational
classification as the job for which the certification was issued.
(B) 	Unqualified physicians
An alien who is a graduate of a medical school not accredited by a body or
bodies approved for the purpose by the Secretary of Education (regardless
of whether such school of medicine is in the United States) and who is
coming to the United States principally to perform services as a member of
the medical profession is inadmissible, unless the alien (i) has passed parts
I and II of the National Board of Medical Examiners Examination (or an
equivalent examination as determined by the Secretary of Health and
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Human Services) and (ii) is competent in oral and written English. 	For
purposes of the previous sentence, an alien who is a graduate of a medical
school shall be considered to have passed parts I and II of the National
Board of Medical Examiners if the alien was fully and permanently licensed
to practice medicine in a State on January 9, 1978, and was practicing
medicine in a State on that date.
(C) 	Uncertified foreign health-care workers
Subject to subsection (r), any alien who seeks to enter the United States for
the purpose of performing labor as a health-care worker, other than a
physician, is inadmissible unless the alien presents to the consular officer,
or, in the case of an adjustment of status, the Attorney General, a certificate
from the Commission on Graduates of Foreign Nursing Schools, or a
certificate 	from 	an 	equivalent 	independent 	credentialing 	organization
approved by the Attorney General in consultation with the Secretary of
Health and Human Services, verifying that--
(i) 	the alien's education, training, license, and experience--
(I) 	meet all applicable statutory and regulatory requirements for entry into the
United States under the classification specified in the application;
(II) 	are comparable with that required for an American health-care worker of
the same type; and
(III) 	are authentic and, in the case of a license, unencumbered;
(ii) 	the alien has the level of competence in oral and written English considered
by the Secretary of Health and Human Services, in consultation with the
Secretary of Education, to be appropriate for health care work of the kind
in which the alien will be engaged, as shown by an appropriate score on one
or 	more 	nationally 	recognized, 	commercially 	available, 	standardized
assessments of the applicant's ability to speak and write; and
(iii) 	if a majority of States licensing the profession in which the alien intends to
work recognize a test predicting the success on the profession's licensing or
certification examination, the alien has passed such a test or has passed such
an 	examination. 	For 	purposes 	of 	clause 	(ii), 	determination 	of 	the
standardized tests required and of the minimum scores that are appropriate
are within the sole discretion of the Secretary of Health and Human Services
and are not subject to further administrative or judicial review.
(D) 	Application of grounds
The grounds for inadmissibility of aliens under subparagraphs (A) and (B)
shall apply to immigrants seeking admission or adjustment of status under
paragraph (2) or (3) of section 1153(b) of this title.
(6) 	Illegal entrants and immigration violators
(A) 	Aliens present without admission or parole
(i) 	In general
An alien present in the United States without being admitted or paroled, or
who arrives in the United States at any time or place other than as designated
by the Attorney General, is inadmissible.
(ii) 	Exception for certain battered women and children
Clause (i) shall not apply to an alien who demonstrates that--
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(I) 	the alien is a VAWA self-petitioner;
(II) 	(a) the alien has been battered or subjected to extreme cruelty by a spouse
or parent, or by a member of the spouse's or parent's family residing in the
same household as the alien and the spouse or parent consented or
acquiesced to such battery or cruelty, or (b) the alien's child has been
battered or subjected to extreme cruelty by a spouse or parent of the alien
(without the active participation of the alien in the battery or cruelty) or by
a member of the spouse's or parent's family residing in the same household
as the alien when the spouse or parent consented to or acquiesced in such
battery or cruelty and the alien did not actively participate in such battery
or cruelty, and
(III) 	there was a substantial connection between the battery or cruelty described
in subclause (I) or (II) and the alien's unlawful entry into the United States.
(B) 	Failure to attend removal proceeding
Any alien who without reasonable cause fails or refuses to attend or remain
in attendance at a proceeding to determine the alien's inadmissibility or
deportability and who seeks admission to the United States within 5 years
of such alien's subsequent departure or removal is inadmissible.
(C) 	Misrepresentation
(i) 	In general
Any alien who, by fraud or willfully misrepresenting a material fact, seeks
to procure (or has sought to procure or has procured) a visa, other
documentation, or admission into the United States or other benefit
provided under this chapter is inadmissible.
(ii) 	Falsely claiming citizenship
(I) 	In general
Any alien who falsely represents, or has falsely represented, himself or
herself to be a citizen of the United States for any purpose or benefit under
this chapter (including section 1324a of this title) or any other Federal or
State law is inadmissible.
(II) 	Exception
In the case of an alien making a representation described in subclause (I), if
each natural parent of the alien (or, in the case of an adopted alien, each
adoptive parent of the alien) is or was a citizen (whether by birth or
naturalization), the alien permanently resided in the United States prior to
attaining the age of 16, and the alien reasonably believed at the time of
making such representation that he or she was a citizen, the alien shall not
be considered to be inadmissible under any provision of this subsection
based on such representation.
(iii) 	Waiver authorized
For provision authorizing waiver of clause (i), see subsection (i).
(D) 	Stowaways
Any alien who is a stowaway is inadmissible.
(E) 	Smugglers
(i) 	In general
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Any alien who at any time knowingly has encouraged, induced, assisted,
abetted, or aided any other alien to enter or to try to enter the United States
in violation of law is inadmissible.
(ii) 	Special rule in the case of family reunification
Clause (i) shall not apply in the case of alien who is an eligible immigrant
(as defined in section 301(b)(1) of the Immigration Act of 1990), was
physically present in the United States on May 5, 1988, and is seeking
admission as an immediate relative or under section 1153(a)(2) of this title
(including under section 112 of the Immigration Act of 1990) or benefits
under section 301(a) of the Immigration Act of 1990 if the alien, before May
5, 1988, has encouraged, induced, assisted, abetted, or aided only the alien's
spouse, parent, son, or daughter (and no other individual) to enter the United
States in violation of law.
(iii) 	Waiver authorized
For provision authorizing waiver of clause (i), see subsection (d)(11).
(F) 	Subject of civil penalty
(i) 	In general
An alien who is the subject of a final order for violation of section 1324c of
this title is inadmissible.
(ii) 	Waiver authorized
For provision authorizing waiver of clause (i), see subsection (d)(12).
(G) 	Student visa abusers
An 	alien 	who 	obtains 	the 	status 	of 	a 	nonimmigrant 	under 	section
1101(a)(15)(F)(i) of this title and who violates a term or condition of such
status under section 1184(l) of this title is inadmissible until the alien has
been outside the United States for a continuous period of 5 years after the
date of the violation.
(7) 	Documentation requirements
(A) 	Immigrants
(i) 	In general
Except as otherwise specifically provided in this chapter, any immigrant at
the time of application for admission--
(I) 	who is not in possession of a valid unexpired immigrant visa, reentry permit,
border crossing identification card, or other valid entry document required
by this chapter, and a valid unexpired passport, or other suitable travel
document, or document of identity and nationality if such document is
required under the regulations issued by the Attorney General under section
1181(a) of this title, or
(II) 	whose visa has been issued without compliance with the provisions of
section 1153 of this title, is inadmissible.
(ii) 	Waiver authorized
For provision authorizing waiver of clause (i), see subsection (k).
(B)Nonimmigrants
(i) 	In general
Any nonimmigrant who--
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(I) 	is not in possession of a passport valid for a minimum of six months from
the date of the expiration of the initial period of the alien's admission or
contemplated initial period of stay authorizing the alien to return to the
country from which the alien came or to proceed to and enter some other
country during such period, or
(II) 	is not in possession of a valid nonimmigrant visa or border crossing
identification card at the time of application for admission, is inadmissible.
(ii) 	General waiver authorized
For provision authorizing waiver of clause (i), see subsection (d)(4).
(iii) 	Guam and Northern Mariana Islands visa waiver
For provision authorizing waiver of clause (i) in the case of visitors to Guam
or the Commonwealth of the Northern Mariana Islands, see subsection (l).
(iv) 	Visa waiver program
For authority to waive the requirement of clause (i) under a program, see
section 1187 of this title.
(8) 	Ineligible for citizenship
(A) 	In general
Any immigrant who is permanently ineligible to citizenship is inadmissible.
(B) 	Draft evaders
Any person who has departed from or who has remained outside the United
States to avoid or evade training or service in the armed forces in time of
war or a period declared by the President to be a national emergency is
inadmissible, except that this subparagraph shall not apply to an alien who
at the time of such departure was a nonimmigrant and who is seeking to
reenter the United States as a nonimmigrant.
(9) 	Aliens previously removed
(A) 	Certain aliens previously removed
(i) 	Arriving aliens
Any alien who has been ordered removed under section 1225(b)(1) of this
title or at the end of proceedings under section 1229a of this title initiated
upon the alien's arrival in the United States and who again seeks admission
within 5 years of the date of such removal (or within 20 years in the case of
a second or subsequent removal or at any time in the case of an alien
convicted of an aggravated felony) is inadmissible.
(ii) 	Other aliens
Any alien not described in clause (i) who--
(I) 	has been ordered removed under section 1229a of this title or any other
provision of law, or
(II) 	departed the United States while an order of removal was outstanding, and
who seeks admission within 10 years of the date of such alien's departure or
removal (or within 20 years of such date in the case of a second or
subsequent removal or at any time in the case of an alien convicted of an
aggravated felony) is inadmissible.
(iii) 	Exception
Clauses (i) and (ii) shall not apply to an alien seeking admission within a
period if, prior to the date of the alien's reembarkation at a place outside the
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United States or attempt to be admitted from foreign contiguous territory,
the Attorney General has consented to the alien's reapplying for admission.
(B)Aliens unlawfully present
(i) 	In general
Any alien (other than an alien lawfully admitted for permanent residence)
who--
(I) 	was unlawfully present in the United States for a period of more than 180
days but less than 1 year, voluntarily departed the United States (whether or
not pursuant to section 1254a(e)2 of this title) prior to the commencement
of proceedings under section 1225(b)(1) of this title or section 1229a of this
title, and again seeks admission within 3 years of the date of such alien's
departure or removal, or
(II) 	has been unlawfully present in the United States for one year or more, and
who again seeks admission within 10 years of the date of such alien's
departure or removal from the United States, is inadmissible.
(ii) 	Construction of unlawful presence
For purposes of this paragraph, an alien is deemed to be unlawfully present
in the United States if the alien is present in the United States after the
expiration of the period of stay authorized by the Attorney General or is
present in the United States without being admitted or paroled.
(iii) 	Exceptions
(I) 	Minors
No period of time in which an alien is under 18 years of age shall be taken
into account in determining the period of unlawful presence in the United
States under clause (i).
(II) 	Asylees
No period of time in which an alien has a bona fide application for asylum
pending under section 1158 of this title shall be taken into account in
determining the period of unlawful presence in the United States under
clause (i) unless the alien during such period was employed without
authorization in the United States.
(III) 	Family unity
No period of time in which the alien is a beneficiary of family unity
protection pursuant to section 301 of the Immigration Act of 1990 shall be
taken into account in determining the period of unlawful presence in the
United States under clause (i).
(IV) 	Battered women and children
Clause (i) shall not apply to an alien who would be described in paragraph
(6)(A)(ii) if “violation of the terms of the alien's nonimmigrant visa” were
substituted for “unlawful entry into the United States” in subclause (III) of
that paragraph.
(V) 	Victims of a severe form of trafficking in persons
Clause (i) shall not apply to an alien who demonstrates that the severe form
of trafficking (as that term is defined in section 7102 of Title 22) was at least
one central reason for the alien's unlawful presence in the United States.
(iv) 	Tolling for good cause
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In the case of an alien who--
(I) 	has been lawfully admitted or paroled into the United States,
(II) 	has filed a nonfrivolous application for a change or extension of status
before the date of expiration of the period of stay authorized by the Attorney
General, and
(III) 	has not been employed without authorization in the United States before or
during the pendency of such application, the calculation of the period of
time specified in clause (i)(I) shall be tolled during the pendency of such
application, but not to exceed 120 days.
(v) 	Waiver
The Attorney General has sole discretion to waive clause (i) in the case of
an immigrant who is the spouse or son or daughter of a United States citizen
or of an alien lawfully admitted for permanent residence, if it is established
to the satisfaction of the Attorney General that the refusal of admission to
such immigrant alien would result in extreme hardship to the citizen or
lawfully resident spouse or parent of such alien. 	No court shall have
jurisdiction to review a decision or action by the Attorney General regarding
a waiver under this clause.
(C) 	Aliens unlawfully present after previous immigration violations
(i) 	In general
Any alien who--
(I) 	has been unlawfully present in the United States for an aggregate period of
more than 1 year, or
(II) 	has been ordered removed under section 1225(b)(1) of this title, section
1229a of this title, or any other provision of law, and who enters or attempts
to reenter the United States without being admitted is inadmissible.
(ii) 	Exception
Clause (i) shall not apply to an alien seeking admission more than 10 years
after the date of the alien's last departure from the United States if, prior to
the alien's reembarkation at a place outside the United States or attempt to
be 	readmitted 	from 	a 	foreign 	contiguous 	territory, 	the 	Secretary 	of
Homeland Security has consented to the alien's reapplying for admission.
(iii) 	Waiver
The Secretary of Homeland Security may waive the application of clause
(i) in the case of an alien who is a VAWA self-petitioner if there is a
connection between--
(I) 	the alien's battering or subjection to extreme cruelty; and
(II) 	the alien's removal, departure from the United States, reentry or reentries
into the United States; or attempted reentry into the United States.
(10) 	Miscellaneous
(A) 	Practicing polygamists
Any immigrant who is coming to the United States to practice polygamy is
inadmissible.
(B) 	Guardian required to accompany helpless alien
Any alien--
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(i) 	who is accompanying another alien who is inadmissible and who is certified
to be helpless from sickness, mental or physical disability, or infancy
pursuant to section 1222(c) of this title, and
(ii) 	whose protection or guardianship is determined to be required by the alien
described in clause (i), is inadmissible.
(C) 	International child abduction
(i) 	In general
Except as provided in clause (ii), any alien who, after entry of an order by a
court in the United States granting custody to a person of a United States
citizen child who detains or retains the child, or withholds custody of the
child, outside the United States from the person granted custody by that
order, is inadmissible until the child is surrendered to the person granted
custody by that order.
(ii) 	Aliens supporting abductors and relatives of abductors
Any alien who--
(I) 	is known by the Secretary of State to have intentionally assisted an alien in
the conduct described in clause (i),
(II) 	is known by the Secretary of State to be intentionally providing material
support or safe haven to an alien described in clause (i), or
(III) 	is a spouse (other than the spouse who is the parent of the abducted child),
child (other than the abducted child), parent, sibling, or agent of an alien
described in clause (i), if such person has been designated by the Secretary
of State at the Secretary's sole and unreviewable discretion, is inadmissible
until the child described in clause (i) is surrendered to the person granted
custody by the order described in that clause, and such person and child are
permitted to return to the United States or such person's place of residence.
(iii) 	Exceptions
Clauses (i) and (ii) shall not apply--
(I) 	to a government official of the United States who is acting within the scope
of his or her official duties;
(II) 	to a government official of any foreign government if the official has been
designated by the Secretary of State at the Secretary's sole and unreviewable
discretion; or
(III) 	so long as the child is located in a foreign state that is a party to the
Convention on the Civil Aspects of International Child Abduction, done at
The Hague on October 25, 1980.
(D) 	Unlawful voters
(i) 	In general
Any alien who has voted in violation of any Federal, State, or local
constitutional provision, statute, ordinance, or regulation is inadmissible.
(ii) 	Exception
In the case of an alien who voted in a Federal, State, or local election
(including an initiative, recall, or referendum) in violation of a lawful
restriction of voting to citizens, if each natural parent of the alien (or, in the
case of an adopted alien, each adoptive parent of the alien) is or was a citizen
(whether by birth or naturalization), the alien permanently resided in the
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In the Fourth Amendment to the Constitution of the United States context, the Supreme
Court recognizes in dicta that certain interior checkpoints are “functional equivalents” to border
checkpoints, such that the Fourth Amendment protections against searches are lower than they
otherwise are in the United States’ interior. See Almeida-Sanchez v. United States, 413 U.S. 266,
272 (1973)(“Whatever the permissible scope of a routine border search might be, searches of this
kind may in certain circumstances take place not only at the border itself, but at its functional
United States prior to attaining the age of 16, and the alien reasonably
believed at the time of such violation that he or she was a citizen, the alien
shall not be considered to be inadmissible under any provision of this
subsection based on such violation.
(E) 	Former citizens who renounced citizenship to avoid taxation
Any alien who is a former citizen of the United States who officially
renounces United States citizenship and who is determined by the Attorney
General to have renounced United States citizenship for the purpose of
avoiding taxation by the United States is inadmissible.
8 U.S.C. §§ 1182(a)(1)-(5), (a)(8)-(10). These provisions are unlikely to be applicable at a border
or airport check point. These are paper mistakes that are unlikely to be committed at the border or
a “checkpoint.” Thus, “aliens seeking admission” are not the same as “an alien . . . who is arriving
in the United States.” 8 U.S.C. § 1225(b)(2).
If an alien “arriving in the United States” is inadmissible under §§ 1182(a)(6)(C) or
1182(a)(7), the alien is subject to expedited removal. Given the other eight provisions in § 1182
do not relate to arriving, saying “aliens seeking admission” is the same as “an arriving” alien does
not match the reality and the statute’s language.
The reasons that some try to equate “arriving” with “seeking admission” is that they both
sound like “entry.” 	In the IIRIRA, Congress drops the concept of “entry” from the INA and
replaces entry with a definition of who is an applicant for admission. Kurzbam, supra, at 73. By
eliminating the definition of “entry,” and replacing “entry” with the terms “admission” and
“admitted,” Congress “re-characterize[s] aliens who are present in the United States, but who have
not been inspected and admitted” as “applicants for admission.” Succar, 394 F.3d at 13. Congress
defines admission as the “lawful entry of the alien into the United States after inspection and
authorization by an immigration officer.” 8 U.S.C. § 1101(a)(13)(A).
If an alien “arriving in the United States” falls within § 1225(b)(1), § 1225(b)(2) cannot
cover them. 	See 8 U.S.C. § 1225(b)(2)(B)(ii) (“Except subparagraph (A) shall not apply to an
alien -- . . . (ii) to whom paragraph (1) applies . . . .”). Thus, while applicants for admission includes
arriving aliens, § 1225(b)(2)(B)(ii) covers most if not all of them. 	Thus, “seeking admission”
requires more than just presentation at a border or a checkpoint.
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equivalent as well.”). 	Examples of the functional equivalent of border checkpoints include
“searches at an established station near the border,” or “at a point marking the confluence of two
or more roads extending from the border.” Almeida-Sanchez v. United States, 413 U.S. at 273.
Not all permanent checkpoints, however, qualify as the functional equivalent of the border. The
majority of interior checkpoints do not operate under the authority of “functional equivalency” to
search cars that pass through the checkpoint, but instead, based on statutory authority under 8
U.S.C. § 1357(a)(3), where Congress allows “[a]ny officer or employee of the Service authorized
under regulations prescribed by the Attorney General shall have power without warrant -- within
a reasonable distance from any external boundary of the United States, to board and search for
aliens [in] any . . . vehicle.” 8 U.S.C. § 1357(a)(3). “Reasonable distance” has been interpreted
to mean “within 100 air miles from any external boundary of the United States.” 	8 C.F.R. §
287.1(a)(2). The Tenth Circuit makes clear that certain interior checkpoints operate under 8 U.S.C.
§ 1357(a)(3)’s authority. In United States v. Rascon-Ortiz, 994 F.2d 749 (10 th Cir. 1993)(“Rascon-
Ortiz”), when discussing a permanent border patrol checkpoint located on Highway 54, near
Orogrande, New Mexico, roughly forty miles from the Mexico border, the Tenth Circuit states:
We note this case involves a permanent checkpoint removed from the
United States-Mexico border, as authorized by 8 U.S.C. § 1357(a)(1) and (a)(3)
(1988); see 8 C.F.R. § 287.1(a)(2) (1992), and, therefore, all references in this
opinion to checkpoints refer to checkpoints not located on the border. This is an
important distinction as a citizen’s Fourth Amendment rights at a checkpoint
located on the border, or its functional equivalent, are significantly less than inside
the border. See United States v. Montoya de Hernandez, 473 U.S. 531, 538 (1985);
Almeida-Sanchez v. United States, 413 U.S. 266, 272-73 (1973).
Rascon-Ortiz, 994 F.2d at 727 n.4. The Court determines that the border checkpoint at which the
United States detains Loza is a § 1357 checkpoint and does not operate under the authority of
functional equivalency. 	The United States stops Loza at a checkpoint “near Alamogordo, New
Mexico.” Motion to Dismiss Class Action Complaint and Petition for Writ of Habeas Corpus, at
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3, filed December 23, 2025 (Doc. 21). There are two permanent checkpoints near Alamogordo:
one on US 70 east (Alamogordo), which is fifteen miles southwest of Alamogordo, and another on
US 54 north, which is thirty miles south of Alamogordo.27 See United States Border Patrol interior
checkpoints, 	W IKIPEDIA , 	https://en.wikipedia.org/wiki/United_States_Border_Patrol_interior_
checkpoints#New_Mexico. 	The Tenth Circuit in Rascon-Ortiz decides that the US 54 checkpoint
is a § 1357 checkpoint, and affirmatively states that this checkpoint is distinct from a checkpoint
at the border or its functional equivalent. 	See 994 F.2d at 727 n.4. 	In accordance with this
conclusion, the Court decides that all permanent checkpoints in New Mexico “removed from the
United States-Mexico border” are checkpoints that § 1357 authorizes and therefore are not the
border’s functional equivalent. Accordingly, regardless whether the United States stops Loza at
the US 54 or the US 70 checkpoint, the Court determines that this checkpoint is not the “functional
equivalent” of the border such that Loza is “seeking admission” by virtue of presenting at this
checkpoint and then becomes subject to § 1225(b)(2).
Even if, however, the checkpoint at which the United States detains Loza qualifies as the
border’s functional equivalent, the Court decides that the Supreme Court’s determination in the
Fourth Amendment context in Almeida-Sanchez v. United States, 413 U.S. at 272-73, does not
counsel extending this functionality to conclude that an alien is an arriving alien “seeking
admission” merely by virtue of passing through one of these checkpoints removed from the United
States-Mexico border. 8 U.S.C. § 1225(b)(2). The functional equivalency of the border-fiction
applies, because there are certain checkpoints that are so connected to the border that the Fourth
27 The other permanent checkpoints in New Mexico are: (i) I-10 west, which is 22 miles
west of Las Cruces; (ii) NM 11 north, which is 22.6 miles south of Deming; (iii) I-25 north, which
is 23 miles north of Las Cruces; and (iv) NM 185 north, which is 13 miles northwest of Radium
Springs. 	See 	United 	States 	Border 	Patrol 	interior 	checkpoints, 	W IKIPEDIA ,
https://en.wikipedia.org/wiki/United_States_ Border_Patrol_interior_checkpoints#New_Mexico.
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Amendment protections that exist at these areas are the same as the protections that exist at the
border. 	This equivalency does not mean, however, that every person passing through these
checkpoints is arriving from outside of the United States. At the border, every person presenting
for inspection at a port of entry is seeking to enter the country, but the Court does not conclude
that every applicant for admission, who is arriving at the border, is “seeking admission,” under §
1225(b)(2), because he or she is presenting at the precipice of the United States and asking for
entry. 	An alien is not entering at these functional equivalencies to the border, where persons
presenting for inspection are no longer seeking to enter the country, because they already have
entered the country, some perhaps minutes ago and some perhaps years ago. The Court therefore
concludes that presence at a functional equivalency checkpoint, without more, does not change an
applicant for admission’s status to seeking admission. The applicant for admission is already
“present” in the country and is no longer “arriving” and therefore, merely going through a
checkpoint is not “seeking admission” and is not seeking lawful entry into the country; this alien
remains an “applicant for admission,” but not an alien “seeking admission.” 	Accordingly, the
Court determines that United States detains Loza at a checkpoint removed from the United States-
Mexico border, but he is not “seeking admission” by going through a checkpoint. Hence, although
he is an applicant for admission, he is not seeking admission, and the United States cannot detain
him under § 1225(b)(2). The United States, therefore, must detain him under § 1226(a) and afford
him the procedural protections that this statute provides. The Court therefore overrules the Federal
Respondents’ Objection to Magistrate Judge Robbenhaar’s conclusion that the United States must
detain Loza under § 1226(a). The Court determines that the United States must detain Loza in
accordance with the statutory provisions of § 1226(a), or, if the United States is unable or declines
to follow § 1226(a)’s statutory requirements, the United States must release Loza immediately.
The Court does not, however, order any relief consistent with this ruling, because the Court
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sustains a later Objection in which the Federal Respondents object to the granting of relief beyond
the scope of the Petitioners’ TRO filings. See infra Section IV.
B. 	CASTILLO IS NOT SEEKING ADMISSION SUCH THAT HE CAN BE
DETAINED 	UNDER 	§ 	1225(b)(2), 	AND 	ACCORDINGLY 	MUST 	BE
DETAINED UNDER § 1226(a).
Castillo is an applicant for admission, because he is an alien present in the United States
without admission. 	See 8 U.S.C. § 1225(a)(1). 	The Court therefore looks first to whether the
United States can detain Castillo under § 1225(b)(1). The Court determines that the United States
may not detain Castillo under § 1225(b)(1), because he is not an arriving alien or an alien present
in the United States continuously for less than two years whom an inspecting immigration officer
deems inadmissible under §§ 1182(a)(6)(C), (a)(7). Accordingly, the Court next looks to whether
the United States may detain Castillo under § 1225(b)(2). The United States apprehends Castillo
in El Paso, Texas on December 29, 2024, after the United States encounters Castillo at the El Paso
County Detention Facility following an arrest for Burglary of Habitation. See Motion to Dismiss
Class Action Complaint and Petition for Writ of Habeas Corpus, at 3, filed December 23, 2025
(Doc. 21). There is no indication that Castillo has any pending application or has taken any other
action that indicates that he is actively seeking admission. The Court determines, therefore, that
Castillo is not an applicant for admission seeking admission such that the United States can detain
Castillo under § 1225(b)(2). 	Instead, the United States must detain Castillo under § 1226(a).
Accordingly, the Court overrules the Federal Respondents’ Objection to Magistrate Judge
Robbenhaar’s conclusion that the United States must detain Castillo under § 1226(a). The Court
determines that the United States must detain Castillo in accordance with § 1226(a)’s statutory
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provisions, or, if the United States is unable or declines to follow § 1226(a)’s statutory
requirements, the United States must immediately release Castillo.28
II. 	THE COURT SUSTAINS IN PART AND OVERRULES IN PART FEDERAL
RESPONDENTS’ 	OBJECTION 	TO 	THE 	MAGISTRATE 	JUDGE
ROBBENHAAR’S CONCLUSION IN THE PFRD THAT PETITIONERS’ DUE
PROCESS 	RIGHTS ARE 	VIOLATED 	BECAUSE 	OF 	THEIR 	DETENTION
WITHOUT BOND UNDER § 1225(b)(2).
The due process rights afforded to an alien depend on whether that alien is subject to
territorial standing or the entry fiction doctrine. See Singh, 2026 WL 146005 at 36 (Browning,
J.)(“[T]he rule of territorial standing presumes that aliens who reach United States soil under their
own power -- legally or illegally -- have ties to the community sufficient to confer a wide range of
Constitutional rights . . . . The entry doctrine, by comparison, concludes that aliens whom the
United States permits into the country absent some legal right to be there -- e.g. paroled -- have no
community ties, and, therefore, relatively few rights.”). Aliens subject to territorial standing --
aliens who have entered the United States without encountering law enforcement -- have greater
due process rights than aliens subject to the entry fiction -- aliens whom the United States permits
28 Normally, this conclusion would require that the Respondents provide Castillo with a
bond hearing. Castillo’s current detainment, however, comes as result of an appeal from a bond
hearing under § 1226(a) that occurs on August 28, 2025, during which the IJ determines that
Castillo proves, by clear-and-convincing evidence, that he is neither a danger to society nor a flight
risk. See PFRD at 6. Instead of releasing Castillo, Castillo remains in custody during the pendency
of DHS’ appeal of the IJ’s bond hearing decision, in which the BIA overturns the IJ’s bond decision,
not on the merits, but on jurisdictional grounds after concluding incorrectly that the United States
can hold Castillo under § 1225(b)(2). See Matter of Antonio Adrian Castillo, No. Redacted, at 1,
(B.I.A. Dec. 5, 2025)(unpublished). The United States does not order another hearing. The United
States already has given Castillo a bond hearing at which he makes the successful showing required
to obtain bond and the opportunity for release. Accordingly, unless the United States wishes to
challenge the IJ’s bond determination on its merits, the United States must honor the IJ’s bond
determination and allow Castillo immediate release if he complies with the terms of the bond. The
Court does not, however, order any relief consistent with this ruling, because the Court sustains a
later Objection in which the Federal Respondents object to the granting of relief beyond the scope
of the Petitioners’ TRO fiings. See infra Section IV.
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into the country under the power of the United States government. 	The facts in the record
demonstrate that Loza is subject to territorial standing, see PFRD at 4 (“[Loza] first arrived in the
U.S. around August 1999, without inspection”), but the record is unclear with regards to Castillo.
The Court therefore undertakes a due process analysis assuming both that Castillo is subject to
territorial standing and assuming that he is subject to the entry-fiction doctrine.
For aliens subject to the entry-fiction doctrine, their procedural due process rights are
limited to what the statute affords.29 See Singh, 2026 WL 146005, at * 37 (citing Thuraissigiam,
29 While the Supreme Court has said that Constitutional Due Process for aliens the United
States detains “on the threshold” is all the process that Congress gives, that does not seem like
sound Constitutional analysis, for several reasons. 	First, the Constitution exists before any
immigration statute, so the Constitution provided some protection to aliens before Congress passes
the first immigration statues -- The Alien and Sedition Acts -- in 1798. Andrew Baxter & Alex
Nowrasteh, A Brief History of U.S. Immigration Policy from the Colonial Period to the Present
Day (Aug. 3, 2021), https://www.cato.org/policy-analysis/brief-history-us-immigration-policy-
colonial-period-present-day?gad_source=1&gad_ campaignid=22458109145&gclid=EAIaIQobC
hMI14vHmsq9kgMVxWRHAR1aky1qEAAYASAAEgIy7_D_BwE. 	The question is what Due
Process required before the 1798 statutes. Presumably there was some protections for aliens before
that statute. It seems better to decide what the Constitution provided then and provides now than
just refer to a statute.
Second, the Court is uncomfortable with the idea that every violation of the statute is a
Constitutional violation. Normally, the Constitution is a floor, and Congress must provide process
above the floor to be Constitutional. By describing Due Process as nothing more than what the
Congress provides, the Supreme Court is not giving Congress or the lower courts guidance
concerning what Due Process requires. In other words, saying that the rule is whatever Congress
gives is Constitutional Due Process is no Constitutional guidance at all.
Third, ever since Marbury v. Madison, 5 U.S. 137 (1803), the Supreme Court has insisted
that it is the arbitrator of what the Constitution means. In the immigration area, the Supreme Court
gives this power to Congress. 	When the lower courts desperately need guidance, the Supreme
Court is not to be found.
Fourth, when Congress changes the law, the Constitution changes. Congress decides what
the Constitution means and protects. Thus, what can happen is that Constitutional protections can
go and down. For the nation and for the federal judiciary, that Constitutional protections can go
down or away is odd. It seems that the best approach would be for the Supreme Court to drop this
whatever-Congress-says standard, and do what it does in other areas and decide what the
Constitution requires. In other words, the Supreme Court needs to do what Chief Judge Marshal
in Marbury v. Madison, claims as its own job. 	The Supreme Court needs to decide what the
Constitution protects.
Procedural Due Process requires notice and the opportunity to be heard. Notice probably
is not the issue if the United States is detaining the alien; the issue is the hearing. 	Likely, the
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591 U.S. at 139; Zadvydas, 533 U.S. at 693). 	Section 1226(a) affords detained aliens a bond
hearing; therefore, the United States’ continued detainment of Loza and Castillo without the
provision of a bond hearing violates the procedurally afforded rights of § 1226(a). Accordingly,
because an alien’s procedural due process rights are equivalent to the process that Congress
provides under the statute, that violation of the statute for these aliens equates to a violation of
their procedural due process rights. The remedy, however, is not a Constitutional analysis to see
if the alien is entitled to greater process; instead, the only remedy is to afford the alien the process
that the statute authorizes, because the alien is not entitled to any greater process. 	See Sierra
Immigr. & Naturalization Serv., 258 F.3d 1213, 1218 (10th Cir. 2001)(explaining the procedural
due process of an alien subject to the entry fiction: “‘Whatever the procedure authorized by
Congress is, it is due process as far as an alien denied entry is concerned.’” (quoting United States
ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 544 (1950)).
For aliens subject to territorial standing, however, they receive greater due process
protections that the Constitution affords. See Zadyvas, 533 U.S. at 693 (“[O]nce an alien enters
the country, the legal circumstances change, for the Due Process Clause applies to all ‘persons’
within the United States, including aliens, whether their presence here is lawful, unlawful,
temporary, or permanent.”). The Fourteenth Amendment to the United States Constitution protects
citizens from the deprivation of “life, liberty, or property, without due process of law . . . .” U.S.
CONST . amend. XIV § 1. “[P]rocedural due process ensures that a state will not deprive a person
of life, liberty or property unless fair procedures are used in making that decision . . . .” Archuleta
United States is detaining the alien or about to detain the alien. The issue probably is removal or
not removal, and detention if removal is appropriate. That a limited hearing probably is all that
the Due Process gives. It does not require a bond hearing, any particular burden of proof, or any
burden of proof on the United States. It seems that fleshing out what the Constitution minimally
requires makes more sense than referring to the statute for Constitutional analysis.
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v. Colo. Dep’t of Insts., Div. of Youth Servs., 936 F.2d 483, 490 (10th Cir. 1991). The Tenth Circuit
prescribes a two-step inquiry in determining whether an individual’s procedural due process rights
were violated: (i) “[d]id the individual possess a protected property [or liberty] interest to which
due process protection was applicable?”; and (ii) “[w]as the individual afforded an appropriate
level of process?” Camuglia v. City of Albuquerque, 448 F.3d 1214, 1219 (10th Cir. 2006).
First, the Court determines that aliens subject to territorial standing possess a protected
liberty interest to which due process is applicable. 	“Freedom from imprisonment -- from
government custody, detention, or other forms of physical restraint -- lies at the heart of the liberty
that [the Due Process] Clause protects.” Zadvydas, 533 U.S. at 678 (citing Foucha v. Louisiana,
504 U.S. 71, 80 (1992)). 	Second, the Court considers whether a territorial alien detained without
any procedure other than an immigration officer’s initial determination that the alien is
inadmissible is afforded sufficient process. The Court determines that this procedure is adequate.
First, the Supreme Court has “firmly and repeatedly endorsed the proposition that Congress may
make rules as to aliens that would be unacceptable if applied to citizens.” Demore v. Kim, 538
U.S. 510, 522 (2003)(“Demore”). 	Second, the Court notes the Supreme Court’s “longstanding
view that the Government may constitutionally detain deportable aliens during the limited period
necessary for their removal proceedings.” Demore, 538 U.S. at 526.
The Court looks to two Supreme Court decisions discussing the due process rights of aliens
in the immigration context to inform its analysis: 	Zadvydas and Demore. 	In Zadvydas, the
Supreme Court looks at whether the Attorney General may detain a removable alien indefinitely
beyond the removal period or only for a period reasonably necessary to secure the alien’s removal.
See 533 U.S. at 682. The Supreme Court determines that a “statute permitting indefinite detention
of an alien would raise a serious constitutional problem” and therefore reads into § 1231 a
reasonable time limit on detention. Zadvydas, 533 U.S. at 690. Looking first at the United States’
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interests in indefinite detention, the Supreme Court identifies two: ensuring the appearance of
aliens at future immigration proceedings and preventing danger to the community. See Zadvydas,
533 U.S. at 690. The Supreme Court decides that the first interest, ensuring appearance, is “weak
or nonexistent where removal seems a remote possibility at best,” and that, “where detention’s
goal is no longer practically attainable, detention no longer ‘bear[s][a] reasonable relation to the
purpose for which the individual [was] committed.’” Zadvydas, 533 U.S. at 690 (quoting Jackson
v. Indiana, 406 U.S. 715, 738 (1972)). The second interest, protecting the community, is also weak,
because the provision authorizing detention does not apply narrowly to a small group of dangerous
individuals, “but broadly to aliens ordered removed for many and various reasons, including tourist
visa violations.” Zadvydas, 533 U.S. at 691. Further, “once the flight risk justification evaporates,
the only special circumstance present is the alien’s removable status itself, which bears no relation
to a detainee’s dangerousness.” Zadvydas, 533 U.S. at 691-92. The Court weighs these interests
against the alien’s liberty interest -- freedom from imprisonment -- and concludes that “an alien’s
liberty interest is, at the least, strong enough to raise a serious question as to whether, irrespective
of the procedures used, the Constitution permits detention that is indefinite and potentially
permanent.” Zadvydas, 533 U.S. at 696.
In Demore, by contrast, the Supreme Court considers a challenge to detention without a
determination that the alien poses either a danger to society or a flight risk under § 1226(c), which
authorizes the detention of certain criminal aliens. See Demore, 538 U.S. at 514. The Supreme
Court determines that “[d]etention during removal proceedings is a constitutionally permissible
part of that process.” Demore, 538 U.S. at 531. In doing so, the Supreme Court draws two major
distinctions between the interests at issue in Demore and the interests in Zadvydas. Looking first
to the United States’ interest, the Supreme Court explains that, in Zadvydas, the aliens challenging
their detention following the final orders of deportation are ones for whom removal is “no longer
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practically attainable,” and therefore detention no longer served its purported immigration purpose
of preventing aliens from fleeing prior to their removal. Demore, 538 U.S. at 527. By contrast, in
Demore, the detention of these criminal aliens is pending their removal proceedings, which
“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.” 	538 U.S. at 527-28. 	The Supreme Court highlights that, “in
adopting § 1226(c), Congress had before it evidence suggesting that permitting discretionary
release of aliens pending their removal hearings would lead to large numbers of deportable
criminal aliens skipping their hearings and remaining at large in the United States unlawfully.”
Demore, 538 U.S. at 528. 	Second, looking at the alien’s interest in liberty, the Supreme Court
distinguishes Zadvydas on the grounds that the detention in Zadvydas is “indefinite” and
“potentially permanent,” whereas the detention under § 1226(c) is of a “much shorter duration.”
Demore, 538 U.S. at 529. Specifically, in around eighty-five percent of cases under § 1226(c), the
United States completes removal proceedings in an average time of forty-seven days, and the
United States completes the remaining fifteen percent in an average of four months. See Demore,
538 U.S. at 529. Based on the balance of interests under § 1226(c), the Supreme Court concludes
that detention during removal proceedings under § 1226(c) is Constitutional in the absence of a
detainment hearing. See Demore, 538 U.S. at 531.
Weighing the interests in the present case, the Court concludes that Demore counsels the
conclusion that detainment of a non-criminal territorial alien without a detainment hearing does
not violate procedural due process. Looking at the United States’ interests first, the United States
detains the aliens in this case, similar to the aliens in Demore, pending their removal hearings.
Accordingly, the United States’ interest in preventing deportable aliens from fleeing and thus
increasing the chance that they will be removed, applies to this group of aliens as it does to the
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aliens in Demore. 	In Demore, there are Congressional findings which indicate that permitting
“discretionary release of aliens pending their removal hearings would lead to large numbers of
deportable criminal aliens” absconding, whereas, here, the provisions apply to a large group of
aliens, many of whom have not committed crimes other than illegal entry. Demore, 538 U.S. at
528. 	The Supreme Court in Zadvydas, however, indicates that the United States’ interest in
preventing flight applies in all immigration proceedings as long as removal still remains a genuine
possibility. See Zadvydas, 533 U.S. at 690. The Court concludes that the United States maintains
a strong interest in ensuring that aliens show up for removal proceedings, because the United States
has an interest in ensuring that it is able to carry out its immigration laws. 	The second United
States interest that Zadvydas identifies, however, preventing danger to the community, does not
apply to these aliens, because these statutory provisions apply to a broad swath of aliens, many if
not most of whom have not committed any crime other than illegal entry. Accordingly, the only
special circumstance present is the alien’s illegal status, which bears no relation to a detainee’s
dangerousness. Looking at the United States’ interest in detention, therefore, the Court concludes
that it is greater than the United States’ interest in Zadvydas, yet weaker than the United States’
interest in Demore.
The Court then turns to the alien’s interest in liberty during the pendency of the removal
proceedings. The Court notes that the timeframe of detention for territorial aliens pending normal
removal proceedings under § 1229(a) is shorter than the “indefinite” period of detention present
in Zadvydas, because, unlike in Zadvydas, the period of detention pending removal proceedings
has a definite end date -- the conclusion of removal proceedings -- making the alien’s liberty
interest here weaker than in Zadvydas. The Court also acknowledges, however, that detention for
aliens pending removal proceedings under § 1229(a) can take longer than the average removal
proceedings under § 1226(c) in Demore, lasting anywhere from several months to several years.
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See How Long Do Removal Proceedings Take?, LEGAL CLARITY, https://legal clarity.org/how-
long-do-removal-proceedings-take/. 	Accordingly, the Court concludes that the alien’s liberty
interest here is weaker than the alien’s interest in Zadvydas, yet stronger than the alien’s interest
in Demore, because the alien faces a detention period of longer than the forty-seven day period in
Demore, yet shorter than the “indefinite” detention in Zadvydas. Weighing the balance between
the United States’ interests in detention pending removal and the alien’s interest in liberty during
the removal proceedings, the Court concludes that the alien’s interest does not outweigh the United
States’ interest sufficiently to overcome the Supreme Court’s declaration in Demore that
“[d]etention during removal proceedings is a constitutionally permissible part of that process,”
such that detention during removal proceedings requires certain process to be fair.30 538 U.S. at
531.
30 The Due Process Clause applies to “all persons” within the United States. U.S. Const.
amend. V. 	Congress possesses plenary power to exclude aliens, but the courts historically
constrain that power when Congress exercises that power in deportation proceedings as opposed
to exclusion proceedings. 	Courts accept that Congress may prescribe the procedures governing
removal proceedings, whether exclusion or deportation, but courts retain the authority, and the
duty, to ensure that those procedures comport with the Constitution. See Neuman at 989 (stating
that habeas is a right “to keep executive adjudicators within their authority”). The Judiciary, not
Congress or the Executive, bears responsibility for saying what the law is and determining whether
an Act of Congress comports with Constitutional limits. 	See Loper Bright Enterprises v.
Raimondo, 603 U.S. at 369 (“It is emphatically the province and duty of the judicial department
to say what the law is’” (quoting Marbury v. Madison, 5 U.S. 137, 163 (1803)).
The Fifth Amendment provides that “no person shall be . . . deprived of life, liberty, or
property, without due process of law.” U.S. Const. amend. V. Procedural due process protects all
persons’ interests in life, liberty, and property by providing them notice and an opportunity to be
heard. See Trump v. J. G. G., 604 U.S. 670, 673 (2025)(“So, the detainees are entitled to notice
and opportunity to be heard ‘appropriate to the nature of the case.’ (quoting Mullane v. Central
Hanover Bank & Trust Co., 339 U.S. 306, 313 (1950))). 	The question here concerns what
procedural due process requires. This inquiry inherently is fact dependent. Process sufficient for
one category of alien may not be sufficient for another alien, because of the inquiry’s fact
dependent nature.
Turning to the caselaw, Jennings does not eliminate completely all concerns about §
1225(b)(2). Justice Alito does not hold that § 1225(b)(2) is Constitutional; instead, he declines to
read into the statute limitations that Congress does not include. 	See Jennings, 583 U.S. at 286
(stating that the Ninth Circuit errs, because it does not “interpret the statute” and instead “rewrite[s]
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it”). The Court then remands the Constitutional challenges for the lower courts to consider the
Constitutional issues “on their merits.” 583 U.S. at 312. Addressing those arguments may require
application of the Mathews’ factors; however, the Supreme Court uses a general balancing
framework. That analysis, however, is not mechanical, because § 1225(b)(2) applies to multiple
categories of “other aliens.” 	Singh, 2026 WL 146005 at *18-19. 	The statute governs both (i)
arriving aliens inadmissible for reasons other than two documentation deficiencies referenced in §
1225(b)(1); and (ii) aliens present in the United States for more than two years. See Singh, 2026
WL 146005 at *18-19. 	Section 1225(b)(2) applies to aliens who possess different degrees of
protection under the Due Process Clause -- namely, aliens subject to the entry fiction and aliens
with territorial standing. See Singh, 2026 WL 146005 at *31-32.
The Supreme Court makes clear that, for arriving aliens, due process requires only the
process that Congress provides. See Shaughnessy, 338 U.S. at 544. As the Court discusses below
that conclusion follows logically as a straightforward application of the weighing the interests
involved. Arriving aliens possess no cognizable liberty interest in freedom on United States soil,
no protected property interests, and face no United States-caused jeopardy to life. The Supreme
Court extends this reasoning to arriving aliens permitted physical ingress into the United States,
subjecting them to the entry fiction. 	See Kaplan, 267 U.S. at 230. Aliens subject to the entry
fiction, though physically present within the United States’ border, remain in a Constitutionally
precarious position. They enter the United States on the implicit condition that, once the United
States determines their admissibility, it may remove them without further process. That condition
limits both the connections such aliens form with the community and the fundamental rights they
may acquire while removal proceedings remain pending. 	See Osorio-Martinez v. Att'y Gen.
United States of Am., 893 F.3d 153, 158 (3d Cir. 2018)(“As we explained in Castro, only aliens
who have developed sufficient connections to this country may invoke our Constitution's
protections.”).
Accordingly, application of a balancing analysis to arriving aliens and entry-fiction aliens
presents little Constitutional difficulty. The private interests at stake are minimal at most; arriving
aliens possess no liberty or property interests, and entry-fiction aliens understand that any such
interests are temporary and contingent. 	By contrast, the United States’ interests, ensuring
appearance at removal proceedings and protecting the community, are substantial, particularly
given the uncertainty surrounding flight risk and dangerousness at the point of entry. 	In this
context, the United States’ interests outweigh both the risk of erroneous deprivation and the
marginal value of additional procedural safeguards. Put simply, where the Due Process Clause’s
protected interests are effectively zero, the risk of unconstitutional deprivation is likewise
negligible. That is why weighing the United States interests against the arriving or entry-fiction
aliens’ interests present little Constitutional difficulty.
Zadvydas and Demore guide the Court on conducting the analysis when the equation is no
longer as clear cut. In Zadvydas, the Supreme Court considers what due process requires when an
alien’s liberty interest, although limited, is subjected to potentially indefinite detention and where
the United States’ interests are no longer as strong. See Zadvydas, 533 U.S. at 690-692. Justice
Breyer weighs the interests the United States asserts -- ensuring the appearance of aliens at future
immigration proceedings and preventing danger to the community -- against the petitioners’ risk
of lifelong detention. 	See Zadvydas, 533 U.S. at 691. 	Unlike arriving aliens, the aliens in
Zadvydas face detention with no foreseeable end. 	See Jennings, 583 U.S at 299 (“To start, §§
1225(b)(1) and (b)(2), unlike § 1231(a)(6), provide for detention for a specified period of time.”).
The risk that the aliens in Zadvydas face is high. 	Jennings’ aliens face detention pending
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proceedings; the Zadvydas aliens faced detention for life. The Supreme Court finds that risk so
severe that it construes § 1231 to include a temporal limitation.
In addition to the risk, the Supreme Court emphasizes that the United States’ interests
weaken as removal became increasingly remote. Preventing flight “is weak or nonexistent where
removal seems a remote possibility at best,” and detention that no longer bears a reasonable
relation to its purpose violates due process. Zadvydas, 533 U.S. at 690. With respect to protecting
the community, Justice Breyer explains that preventive detention is Constitutionally permissible
only for specially dangerous individuals and only with strong procedural protections. 	See
Zadvydas, 533 U.S. at 690 (“But we have upheld preventive detention based on dangerousness
only 	when 	limited 	to 	specially 	dangerous 	individuals 	and 	subject 	to 	strong 	procedural
protections.”). The Constitutional instruction which Zadvydas provides is that Due Process Clause
does not tolerate extended detention without sufficient justifications even when an alien’s private
interests are negligible.
Demore provides another data point for analyzing understanding the Constitutional
balancing the Due Process Clause requires. 	In Demore, the Supreme Court upholds mandatory
detention for certain criminal aliens, during removal proceedings, under § 1226(c). See, 538 U.S.
at 513. “We hold that Congress, 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,
may require that persons such as respondent be detained for the brief period necessary for their
removal proceedings.” 	Demore, 538 U.S. at 513. 	The specificity of Chief Justice Rehnquist’s
holding informs the Court’s understanding of the Constitutional analysis.
First, Congress justifies its concern as to deportable criminal aliens. See Demore, 538 U.S.
at 518 (citing Criminal Aliens in the United States: Hearings before the Permanent Subcommittee
on Investigations of the Senate Committee on Governmental Affairs, 103d Cong., 1st Sess. (1993);
S.Rep. No. 104-48, at 1 (1995)(stating that “confinement of criminal aliens alone cost $724 million
in 1990”)). In addition to the costs, these criminal aliens “often committed more crimes before
being removed.” Demore, 538 U.S. at 518-19 (“One 1986 study showed that, after criminal aliens
were identified as deportable, 77% were arrested at least once more and 45% -- nearly half -- were
arrested multiple times before their deportation proceedings even began.” (citing Hearing on H.R.
3333 before the Subcommittee on Immigration, Refugees, and International Law of the House
Committee on the Judiciary, 101st Cong., 1st Sess., at 54, 52 (1989))). This data goes to the United
States’ interest in detaining these aliens, which is weak in Zadvydas. Indeed, the Supreme Court
distinguishes Zadvydas, stating that it is “materially different,” because “there, ‘detention's goal is
no longer practically attainable, detention no longer bears a reasonable relation to the purpose for
which the individual was committed.’” Demore, 538 U.S. at 527 (quoting Zadvydas, 533 U.S. at
690).
Chief Justice Rehnquist also includes the second material distinction in his holding. See
Demore, 538 U.S. at 513. 	“Zadvydas is materially different from the present case in a second
respect as well. While the period of detention at issue in Zadvydas was ‘indefinite’ and ‘potentially
permanent,’ 533 U.S., at 690-691, the detention here is of a much shorter duration.” Demore, 538
at 529. The Supreme Court then provides the statistics that removal proceedings complete “in an
average time of 47 days and a median of 30 days.” 538 U.S. at 529. Moreover, the “statistics do
not include the many cases in which removal proceedings are completed while the alien is still
serving time for the underlying conviction.” 538 U.S. at 529. The Supreme Court uses a balancing
framework in upholding § 1226(c) similar to the approach taken in Zadvydas.
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The dissent in Demore notes that the Due Process Clause gives long-time permeant
residents (“LPRs”) “greater protections than other aliens.” Demore, 538 U.S. at 547 (Souter, J.,
concurring in part)(citing Landon v. Plasencia, 459 U.S. 21 (1982)). The Constitution affords LPRs
more protection for their “person and property,” because immigration laws give LPRs “the
opportunity to establish a life permanently in this country by developing economic, familial, and
social ties indistinguishable from those of a citizen.” 	Demore, 538 U.S. at 544 (Souter, J.,
concurring in part). See United States v. Verdugo-Urquidez, 494 U.S. 259, 271 (1990)(“[A]liens
receive constitutional protections when they have come within the territory of the United States
and developed substantial connections with this country.”); Woodby v. Immigr. & Naturalization
Serv., 385 U.S. 276, 285 (1966)(holding that deportation orders need clear, unequivocal, and
convincing evidence owing to the “drastic deprivations that may follow when a resident of this
country is compelled by our Government to forsake all the bonds formed here and go to a foreign
land where he often has no contemporary identification”).
The alien, to whom the United States has been traditionally hospitable, has been accorded
a generous and ascending scale of rights as he increases his identity with our society. . . .
[A]t least since 1886, we have extended to the person and property of resident aliens
important constitutional guaranties -- such as the due process of law of the Fourteenth
Amendment.
Johnson v. Eisentrager, 339 U.S. 763, 770-71 (1950).
Justice Souter argues that the interests in Demore are greater than those in Zadvydas even
though both cases concern LPRs. Demore, 538 U.S. at 544 (Souter, J., concurring in part). The
petitioner in Demore is not subject to a “final order of removal,” so he has a right to remain in the
country, and detention will “impede the alien's ability to develop and present his case on the very
issue of removability.’” Demore, 538 U.S. at 554 (Souter, J., concurring in part). Nonethless, the
majority uphold § 1226(c) after considering Zadvydas. 	Demore teaches that the United States’
interests assume particular significance in the immigration context, and courts must therefore apply
a balancing framework with a presumption that accords more weight to those interests.
Zadvydas and Demore guide the Court’s analysis. 	The Court now turns to the
Constitutional inquiry Jennings remands. For arriving aliens and entry-fiction aliens, the analysis
remains straightforward unless detention becomes prolonged in a manner resembling Zadvydas.
The difficult questions arise for aliens with territorial standing, who have developed substantial
connections with this country. 	Such aliens enjoy greater due process protections than arriving
aliens, but the extent of those protections depends on the facts. An alien who effects an entry and
the United States discovers months later should not possess the same liberty and property interests
as an alien who enters and remains undiscovered for decades. An alien who quietly builds a life
in the United States, establishing family, employment, and community ties, possesses liberty and
property interests similar in some respects to those of a citizen.
Regardless, the Court still concludes that for these territorial aliens, who do not have
convictions and whom the United States apprehends during routine enforcement, the Due Process
Clause does not demand certain process under procedural due process. Their liberty and property
interests exceed those of arriving aliens but fall short of those of LPRs. And although the United
States’ interest in protecting the community carries less force here than in Demore, the United
States still has a strong interest in ensuring that removable aliens attend their removal hearings and
that upon reaching a final removal determination, the United States is capable of removing them.
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This conclusion does not mean, however, that the United States may detain territorial aliens
forever without any process. See Demore, 538 U.S. at 532 (Kennedy, J., concurring)(“For similar
reasons, since the Due Process Clause prohibits arbitrary deprivations of liberty, a lawful
permanent resident such as respondent could be entitled to an individualized determination as to
his risk of flight and dangerousness if the continued detention became unreasonable or
unjustified.”). All aliens, whether subject to the entry-fiction doctrine or territorial standing, have
substantive due process rights separate and apart from the statute. See Singh, 2026 WL 146005 ,
at *39. 	The United States may violate an alien’s substantive due process rights if immigration
detention becomes punitive. See Singh, 2026 WL 146005, at * 39 (citing the following language
from Rodriguez-Fernandez v. Wilkinson, 654 F.2d 1382, 1387 (10th Cir. 1981): “[A]n excluded
alien in physical custody within the United States may not be ‘punished’ without being accorded
the substantive . . . due process guarantees of the Fifth Amendment.”). Nevertheless, “the mere
fact that a person is detained does not inexorably lead to the conclusion that the government has
imposed punishment.” United States v. Salerno, 481 U.S. 739, 746 (1987). A restriction on liberty
is punitive rather than regulatory if (i) the United States intends to impose punishment, or (ii) the
restriction is not rationally related to a legitimate nonpunitive United States purpose or is excessive
There may come a time, however, when detention becomes so long that the detention no longer
supports the United States interest in detaining the alien. At that point, the Due Process Clause
requires that the alien be afforded some process. The Court believes, however, that the appropriate
vehicle for determining when that process must be afforded comes from substantive due process,
not procedural due process. In sum, the Court thinks that the United States will need to give the
detained alien a hearing after some period of time. The Court believes that period of time, however,
properly comes from substantive rather than procedural due process, and relies on the factually
specific liberty interests of the aliens at issue.
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in relation to that purpose. See United States v. Salerno, 481 U.S. at 747. The Court determines
that neither Petitioner demonstrates, at this time, that their detention is so long that it has crossed
over into punishment and is therefore a violation of their due process rights. First, the Petitioners
provide no evidence that their detention is the result of an intent to punish on the United States’
part. Further, the Court determines that Loza and Castillo’s detentions to date, from August 16,
2025, and January 3, 2025 respectively, are not so long so as to qualify as “excessive in relation”
to the purpose of facilitating deportation. PFRD at 4-5. When there is “an unreasonable delay by
the INS in pursing and completing deportation proceedings, it could become necessary then to
inquire whether the detention is not to facilitate deportation . . . but to incarcerate for other
reasons.” Demore v. Kim, 538 U.S. at 532-33 (Kennedy, J, concurring). The Court does not draw
a bright-line rule of what constitutes an “unreasonable delay,” but concludes that the approximate
six months and thirteen months detention up to this point do not constitute a violation of
Petitioners’ substantive due process rights.
Accordingly, the Court concludes that the continued detention without a hearing for Loza,
whom the Court concludes is subject to territorial standing, does not violate his due process rights,
either procedural or substantive. Instead, the denial of a bond hearing when he is properly held
under § 1226(a) constitutes a statutory violation which must be rectified by the Federal
Respondents if they are to continue to detain him under § 1226(a). There are insufficient facts in
the record to determine whether Castillo is subject to territorial standing or the entry fiction
doctrine. Assuming that Castillo is subject to the entry-fiction doctrine such that a violation of §
1226(a) rises to the level of a violation of his due process rights, the only remedy that Castillo is
entitled to is compliance with the statutory due process of § 1226(a), if the United States continues
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to detain him.31 	Accordingly, the Court sustains in part and overrules in part the Federal
Respondents’ Objection 	to 	Magistrate 	Judge 	Robbenhaar’s 	conclusion 	in 	the 	PFRD 	that
Petitioners’ detention violates Petitioners’ due process rights.
III. 	THE COURT SUSTAINS THE FEDERAL RESPONDENTS’ OBJECTION TO
MAGISTRATE JUDGE ROBBENHAAR’S CONCLUSION THAT THE BURDEN
SHOULD SHIFT TO THE UNITED STATES AT FUTURE BOND HEARINGS.
Section 1226(a) states that the Attorney General may release an alien on “bond of at least
$1,500 with security approved by, and containing conditions prescribed by, the Attorney General .
. . .” but does not prescribe anything further about what the bond hearing shall look like. 8 U.S.C.
§ 1226(a). 	Section 1226(c), which requires the Attorney General to take into custody aliens
charged with, arrested for, or convicted of certain crimes, discusses the release of these aliens if
the release is necessary for certain investigatory or other prosecutorial purposes and the “alien
satisfies the Attorney General that the alien will not pose a danger to the safety of other persons or
of property and is likely to appear for any scheduled proceeding.” 8 U.S.C. § 1226(c)(4). Nothing
in the statute indicates, however, that this requirement that the alien demonstrate they are not a
danger to the community or flight risk before release described in § 1226(c)(4) for criminal aliens
applies to the bond hearing described in § 1226(a).
The BIA is responsible for implementing the current structure of the bond hearing under §
1226(a). See Velasco Lopez v. Decker, 978 F.3d 842, 849 (2d Cir. 2020)(“Decker”). Following
31 The due process analysis that Judge Robbenhaar undertakes in the PFRD relates to
Castillo’s detention during the automatic stay that DHS invokes during the pendency of the appeal
before the BIA regarding the IJ’s initial bond determination for Castillo. 	The BIA concludes
Castillo’s appeal in the United States’ favor on December 5, 2025, and since then the United States
has been detaining Castillo under the assumed authority of § 1225(b)(2), which the Court now
determines must be the authority of § 1226(a). 	See Matter of Antonio Adrian Castillo, No.
Redacted, at 1, (B.I.A. Dec. 5, 2025)(unpublished). 	Accordingly, the question of due process
considerations of detention during the pendency of a BIA appeal is now moot. The only due
process analysis the Court undertakes for Castillo is equivalent to the analysis for Loza -- the due
process considerations regarding continued detention without a bond hearing.
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the IIRIRA’s enactment, INS implements new regulations that impose the standard for the initial
post-arrest custody determination that immigration officials make. 8 C.F.R. § 236.1(c)(2)-(8). The
regulations establish a presumption of detention and place on the arrested individual the burden of
demonstrating, to the arresting officer’s satisfaction, that release will not pose a danger to property
or persons, and that the individual is likely to appear for any future proceedings. See 8 C.F.R. §
236.1(c)(8). 	The regulation applies only to the initial custody determination that the arresting
officer makes and not to immigration judges in bond hearings. See 8 C.F.R. § 236.1(c)(8)(“Any
officer authorized to issue a warrant of arrest may, in the officer’s discretion, release an alien . . .
provided that the alien must demonstrate to the satisfaction of the officer that such release would
not pose a danger to property or persons, and that the alien is likely to appear for any future
proceeding.”). Shortly after INS implements the new regulations, however, the BIA applies the
rule provided in § 236.1(c)(8) for arresting officers, including the presumption for detention, to
bond hearings the immigration judges conduct under § 1226(a). See, e.g., In Re Adeniji, 22 I. &
N. Dec. 1102, 1113 (BIA 1999)(“From the outset, therefore, the regulations under IIRIRA have
added as a requirement for ordinary bond determinations under section 236(a) of the Act [1226(a)]
that the alien must demonstrate that ‘release would not pose a danger to property or persons,’ even
though section 236(a) does not explicitly contain such a requirement.”).
The Court considers whether it has the authority to tell the United States what the bond
hearing must look like on a habeas petition. The writ of habeas corpus has long functioned as a
judicial mechanism for testing the lawfulness of detention. See Peyton v. Rowe, 391 U.S. 54, 63
(1968)(“[A] principle aim of the writ is to provide for swift judicial review of alleged unlawful
restraints on liberty.”). Further, the Supreme Court’s traditional understanding of the writ is that
courts generally do not use habeas to “order relief that neither terminates custody, accelerates the
future date of release from custody, nor reduces the level of custody.” Wilkinson v. Dotson, 544
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U.S. at 86 (Scalia, J., concurring). The Court acknowledges that the writ is an “adaptable remedy,”
whose “precise application and scope changed depending upon the circumstances,” but the Court
understands this adaptability to still be cabined within the context of a challenge to illegal
confinement. See Boumediene, 553 U.S. at 779-80. See Jones v. Cunningham, 371 U.S. 236, 243
(1963)(explaining that the writ of habeas “now and never has been a static, narrow, formalistic
remedy; its scope has grown to achieve its grand purpose -- the protection of individuals against
erosion of their right to be free from wrongful restraints upon their liberty” when allowing a habeas
challenge to parole conditions which “significantly confine and restrain [Petitioner’s] freedom”).
The Court therefore concludes that a challenge to detention without any hearing, which
relegates an alien to mandatory detainment pending removal proceedings, is appropriate under the
writ of habeas. By contrast, however, the Court concludes that a challenge to the burden that an
alien’s § 1226(a) bond hearing imposes -- a challenge to the structure of the available bond hearing
-- is not appropriate under a habeas petition unless the bond hearing’s existing structure is so
weighed against the alien that the alien has no chance to be released on bond. In other words, if
the bond hearing’s structure is such that no alien has a meaningful chance of success at achieving
release, this is such a denial of liberty that a challenge to this process is not beyond writ of habeas’
expansive reach, because the challenge is to detention, not directly to process. The remedy, in that
case, is release and not the Court telling the United States how to do hearings. 	The Court
determines, however, that the § 1226(a) bond hearing’s current structure does not qualify as a
process so detrimental to the alien’s liberty access that it may be challenged under the writ of
habeas, because the writ does not qualify as a challenge to wrongful detention. 	The current §
1226(a) bond hearing requires only that an alien prove that he or she is not a flight risk nor a danger
to the community before the United States releases the alien on bond. This burden does not present
an extensive barrier to an alien seeking release, and, in fact, many aliens receive release on bond
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during the pendency of their removal proceedings. That Castillo, who already has received a §
1226(a) bond hearing, is able to successfully demonstrate to the IJ that he is not a flight risk or
danger to the community, and is granted the right to release on bond, underscores that the process
does not violate due process. See PFRD at 6. The fact that the BIA later overturns this decision
on jurisdictional grounds, concluding incorrectly that the United States can hold Castillo under §
1225(b)(2) instead of § 1226(a), does not negate the fact that Castillo is able to successfully carry
his burden at the § 1226(a) hearing. See Matter of Antonio Adrian Castillo, No. Redacted, at 1,
(B.I.A. Dec. 5, 2025)(unpublished), filed December 23, 2025 (Doc. 21). Accordingly, the Court
determines that it cannot decide on a habeas petition what the § 1226(a) bond hearing’s structure
must be, and as a result sustains the Federal Respondents’ Objection to Magistrate Judge
Robbenhaar’s conclusion that the United States must carry the burden by clear-and-convincing
evidence that an alien is a flight risk or a danger to the community before denying bond under §
1226(a).
IV. 	THE COURT SUSTAINS THE FEDERAL RESPONDENTS’ OBJECTION TO
MAGISTRATE JUDGE ROBBENHAAR’S CONCLUSION THAT THE PFRD
AFFORDS THE PETITIONERS’ RELIEF WHICH THE PETITIONERS DO NOT
SEEK IN THEIR MOTION FOR A TRO.
The PFRD responds only to the Petitioners’ Motion for TRO and Petitioners’ Amended
Motion for Temporary Restraining Order, filed November 6, 2025 (Doc. 5)(“Amended TRO”).
PFRD at 1. 	The Petitioners file the Motion for the TRO after they file their Class Action
Complaint, because Castillo is assigned a new IJ and is subsequently rescheduled to an earlier final
individual hearing on November 5, 2025. 	See TRO ¶ 6, at 2. 	This action is important for the
Petitioners’ claim, because after Castillo has a final order of removal, he will be subject to detention
under a different statute of the INA, at which point allegedly “his physical liberty will be deprived
without proper adjudication of his claims in this lawsuit.” TRO ¶ 5, at 2. The only relief that the
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Petitioners seek in the TRO Motion is that the Court enjoin the Respondents from proceeding on
removal cases for the Petitioners and enjoin Respondents from transferring the Petitioners out of
the Otero Processing Center. See TRO at 3. The Petitioners then file the Amended Motion for
TRO, because Castillo’s hearing is rescheduled from November 5, 2025 to November 17, 2025.
See Amended TRO ¶ 5, at 2. The Petitioners’ request for relief is not different, however, from the
relief that the first TRO seeks, and they request again that the Court enjoin the Respondents from
proceeding on the Petitioners’ removal cases and enjoin the Respondents from transferring the
Petitioners out of the Otero Processing Center. See Amended TRO at 3.
The PFRD recommends further relief than is requested in these motions, however, because
Magistrate Judge Robbenhaar concludes that, implicit in the Brief in Support of the Motion for
Temporary Restraining Order, filed November 3, 2025 (Doc. 4)(“TRO Brief”), is a request for
“injunctive relief requiring compliance with the applicable due process requirements to prevent
continuing the constitutional due process deprivations.” PFRD at 10. The Court disagrees with
this conclusion. It is true that the TRO Brief explains why the Petitioners believe they are likely
to succeed on the claims they bring in their Class Action Complaint as support for why the Court
should grant the TRO. The first page of the TRO Brief, however, indicates that the claims in the
Class Action Complaint are separate and apart from the relief that the TRO requests:
Plaintiffs (or Petitioners), Antonio Adrian Castillo (individually as “Mr.
Castillo”) and Juan Jose Leon Loza (individually as “Mr. Leon Loza”), have filed
the instant lawsuit and petition for Habeas Corpus against Defendants alleging
violations of the Due Process Clause, the Administrative Procedure Act, and the
Immigration and Nationality Act (“INA”). Because Defendants (or Respondents)
have assigned a new Immigration Judge to Mr. Castillo’s case and, subsequently
rescheduled it to an earlier hearing, Plaintiffs have filed a Motion for Temporary
Restraining Order.
TRO Brief at 1. 	Accordingly, the Court agrees with the Federal Respondents that the PFRD
incorrectly grants relief that the Petitioners do not seek in either their TRO Motion or Amended
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TRO Motion by concluding that the United States should release Castillo and the United States
should grant Loza a bond hearing under § 1226(a).32 See PFRD at 26. As stated above, however,
if the issue of relief under § 1226(a) comes properly before the Court, the Court concludes that the
United States must detain both Loza and Castillo under § 1226(a) in accordance with the statutory
provisions, or immediately release them.
V. 	THE COURT SUSTAINS THE FEDERAL RESPONDENTS’ OBJECTION TO THE
MAGISTRATE 	JUDGE 	ROBBENHAAR’S 	CONCLUSION 	THAT 	THE
RESPONDENTS CANNOT TRANSFER, UNDER THE ALL WRITS ACT, 28 U.S.C.
§ 1651, THE PETITIONERS OUT OF THE UNITED STATES.
Under the All Writs Act, courts “may issue all writs necessary or appropriate in aid of their
respective jurisdictions and agreeable to the usages and principles of law.” 	28 U.S.C. § 1651(a).
In the PFRD, Magistrate Judge Robbenhaar concludes that the All Writs Act grants the Court
authority to enter an injunction to prevent the Respondents from removing the Petitioners either
from the District of New Mexico or from the United States during the pendency of these habeas
proceedings. See PFRD at 24. The Respondents object only to the conclusion that the All Writs
Act prohibits transfer out of the United States, because enjoining the United States from removing
the Petitioners from the United States would be to enjoin otherwise lawful removal on the basis of
the underlying habeas petition. See Objections at 14.
32 There may be a good reason why the Petitioners choose not to ask for immediate relief
under § 1226(a) in their TRO filings. The Petitioners seek to be the named representatives for a
class action lawsuit representing, along with a different class regarding aliens detained pending a
bond appeal of an IJ’s bond hearing ruling to the BIA, a Bond Denial Class -- all noncitizens whom
the United States apprehends in the interior of the United States and detains [within the District of
New Mexico] who (i) have entered or will enter the United States without inspection; (ii) are not
apprehended upon arrival at a port of entry or its functional equivalent, and (iii) are not or will not
be subject to detention under 8 U.S.C. § 1226(c), § 1225(b)(1), or § 1231. 	See Class Action
Complaint ¶ 56, at 17. If the Court is to grant the Petitioners relief under § 1226(a) as a result of
their TRO filings, the Petitioners status as named representatives in their Class Action complaint
could be mooted. 	This consideration further supports the Court’s refusal to grant relief not
requested in the Petitioners’ TRO Motion or Amended TRO Motion.
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The Court first notes that the recommendation that the Court enjoin the United States from
transferring the Petitioners out of the United States during the pendency of the habeas proceedings
is beyond the scope of relief that the Petitioners request in the TRO Motion and the Amended TRO
Motion. See TRO Motion at 3 (requesting that the Court enjoin the Respondents “from proceeding
on removal cases for Mr. Castillo and Mr. Loza and from transferring them out of Otero Processing
Center in Chaparral, New Mexico”); Amended TRO Motion at 3 (requesting the same). The Court
declines to extend relief beyond the scope of relief requested by the Petitioners. Second, even if
the Petitioners request this relief, the Court exercises its discretion under the All Writs Act only to
enjoin Petitioners’ unlawful removal from New Mexico while their habeas proceedings remain
pending. 	The Court does not prevent, however, the United States from proceeding with the
Petitioners’ removal 	proceedings 	under 	§ 	1229(a) 	during 	the 	pendency 	of 	these 	habeas
proceedings. 	The Court will not use the All Writs Act to prevent the United States from using
statutory proceedings to obtain a lawful order of removal. 	Once the Petitioners receive a final
order of removal, the United States ceases to detain the Petitioners or put them on bond under §
1226(a), but instead they transfer to § 1231’s statutory authority. At that time, the Court loses
jurisdiction to hear the habeas petitions for release under § 1226(a), because the habeas petitions
will be moot, and, therefore, at that time the All Writs Act is no longer necessary to prevent the
Court from losing jurisdiction which it no longer has. The All Writs Act, therefore, is incapable of
preventing the United States from carrying out a lawful order of removal on the basis of protecting
the Court’s jurisdiction, because the Court will lose jurisdiction for this habeas proceeding once
the United States obtains a lawful final order of removal. Finally, there is nothing in the record
that indicates that removal of either Loza or Castillo outside of the United States is imminent, and
therefore the Court concludes that there is no need at the present time and on the present record
for the Court to invoke the All Writs Act to prevent this removal from occurring. See A. A. R. P.
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v. Trump, 605 U.S. 91, 95 (2025)(applying the All Writs Act to prevent removal of aliens that was
imminent to preserve “jurisdiction while the question of what notice is due [before removal] is
adjudicated”). 	The Court, therefore, sustains the Federal Respondents’ Objection to Magistrate
Judge Robbenhaar’s conclusion that, under the All Writs Act’s authority, the United States may not
remove the Petitioners from the United States during the habeas proceedings’ pendency.
VI. 	THE COURT SUSTAINS THE FEDERAL RESPONDENTS’ OBJECTION TO THE
CHARACTERIZATION OF ITS DISCRETIONARY STAY REQUEST.
The Federal Respondents object to the following language of the PFRD -- “‘This lack of
immediate urgency was further demonstrated by AUSA Posey’s request at the November 19th
hearing for DHS to have an opportunity to issue a discretionary stay of removal proceedings’” --
as an inaccurate characterization. 	Objections at 14-15 (quoting PFRD at 12). 	The Federal
Respondents clarify that they are speaking in relation to the automatic stay provision under which
the United States previously detains Castillo during the pendency of his BIA appeal, and that their
position is that, “should this Court find the automatic stay provision invalid; DHS would request
sufficient time to request a discretionary stay from the BIA before any TRO would go into effect.”
Objections at 15. To the extent that the Federal Respondents seek a clarification of their statements
at the November 19, 2025 hearing to reflect that they do not request an opportunity to issue a
discretionary stay of removal proceedings, the Court sustains the Federal Respondents’ Objection.
IT IS ORDERED that: (i) the Respondents’ Objections to the Proposed Findings and
Recommended Disposition, filed December 5, 2025 (Doc. 11), are sustained in part and overruled
in part; (ii) the Magistrate Judge Proposed Findings and Recommended Disposition, filed
November 21, 2025 (Doc. 8), is adopted in part and rejected in part; (iii) the Petitioners’ Motion
for Temporary Restraining Order, filed November 3, 2025 (Doc. 3) is granted in part and denied
in part; (iv) the Petitioners’ Amended Motion for Temporary Restraining Order, filed November 6,
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2025 (Doc. 5) is granted in part and denied in part; and (v) the Respondents are enjoined from
transferring Petitioners out of the District of New Mexico during the pendency of their habeas
proceedings or until the Petitioners receive a final order of removal.
________________________________
UNITED STATES DISTRICT JUDGE
Counsel:
Mary Stillinger
Stillinger & Godinez, PLLC
El Paso, Texas
--and--
Felipe D.J. Millan
Felipe D.J. Millan, P.C.
El Paso, Texas
Attorneys for the Petitioners
Ryan Ellison
First Assistant United States Attorney
Ryan Posey
Allison Shokes
Assistant United States Attorneys
United States Attorney’s Office
Albuquerque, New Mexico
Attorneys for Respondents Kristi Noem, Pamela Bondi, Sirce Owen, Mary De Anda-
Ybarra, Executive Office for Immigration Review, and Otero Immigration Court
Christina Gooch
Sutin, Thayer & Browne
Albuquerque, New Mexico
Attorneys for Respondent Dora Castro
Case 2:25-cv-01074-KG-JFR Document 25 Filed 02/10/26 Page 123 of 123