Nurbekov v. Rivas et al

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UNITED STATES DISTRICT COURT
DISTRICT OF ARIZONA
Elzhigit Nurbekov,
Petitioner
-vs-
David R. Rivas, et al.,
Respondents.
CV-25-4353-PHX-DWL (JFM)
Report & Recommendation
on Petition for Writ of Habeas Corpus
I. MATTER UNDER CONSIDERATION
Petitioner has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. §
2254 (Doc. 1). The Petitioner's Petition is now ripe for consideration. Accordingly, the
undersigned makes the following proposed findings of fact, report, and recommendation
pursuant to Rule 8(b), Rules Governing Section 2254 Cases, Rule 72(b), Federal Rules of
Civil Procedure, 28 U.S.C. § 636(b) and Rule 72.2(a)(2), Local Rules of Civil Procedure.
II. RELEVANT FACTUAL & PROCEDURAL BACKGROUND
A. FACTUAL & PROCEDURAL BACKGROUND
Petitioner, a native and citizen of Kyrgyzstan, applied for admission to the United
States on or about November 14, 2024, at San Ysidro, California, having obtained an
appointment for inspection under the “CBP One” program. (Petition at ¶¶ 3, 13.; Exh. A,
Torrero Decl. at ¶ 4; Exh. R-A.) (Exhibits to the Response, Doc. 11, are referenced herein
as “Exh. ___”; Exhibits to the Reply are referenced herein as “Exh. R-___”.) He was
promptly detained and on December 2, 2024 was placed in removal proceedings as an
arriving alien. (Petition at ¶¶ 14(1st), 14(2nd); Exh. A at ¶ 4; Exh. R-B, Not. Appear.) He
filed an asylum application in February 2025, based on religious persecution of him as an
atheist, and a parole request on July 14, 2025. (Petition at ¶¶ 16-17; Exh A. at ¶ 7.) After
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several continuances of hearings, on July 29, 2025 an Immigration Judge granted
Petitioner asylum. (Petition at ¶¶ 15, 16, 19, 20; Exh A. at ¶ 7.)
The Department of Homeland Security filed an appeal with the Board of
Immigration Appeals. (Petition at ¶¶ 21, 22; Exh A. at ¶ 8.) Petitioner emailed a filed a
second parole request on November 10, 2025, with no response, and Petitioner continues
in custody. (Petition at ¶¶ 24-27.) On March 9, 2026, the BIA sustained DHS’s appeal of
the grant of asylum, citing the lack of findings or conclusions of law in the immigration
court’s decision, and remanded for a new decision. (MTRO Response, Doc. 16 at Exh. A,
BIA Dec. 3/9/26; MTRO Reply, Doc. 17 at 2-3.) Thus it appears Petitioner is awaiting a
new ruling by the Immigration Judge.
B. PRESENT FEDERAL HABEAS PROCEEDINGS
Petition - Petitioner, presently detained in the San Luis Regional Detention
Cetner in San Luis, Arizona, filed through counsel his Petition for Writ of Habeas Corpus
pursuant to 28 U.S.C. § 2241 on November 20, 2025 (Doc. 1). Petitioner asserts “that his
prolonged detention for more than 12 months ‘without a tenable justification’ violates his
due process rights under the Fifth Amendment.” (Order 12/2/25 at 1-2.)
Response - On February 2, 2026, Respondents filed their Response (Doc. 11),
arguing that Petitioner is properly detained without bond pursuant to 8 U.S.C. § 1225(b)(2)
because he is an unadmitted alien, in the process of seeking entry, his removal proceedings
are ongoing, and such detention is not unconstitutionally indefinite.
Reply - On February 13, 2026, Petitioner filed a Reply (Doc. 12). Petitioner argues
8 U.S.C. § 1225(b) does not bar constitutional claims based on prolong detention without
a bond hearing, and such detention violates due process.
MTRO – On March 26, 2026, Petitioner filed a Motion for Temporary Restraining
Order (Doc. 14), seeking relief in the form of declarations on the constitutionality of his
detention and his immediate release from detention and verification thereof, attorneys fees
and costs. On April 6, 2026, Respondents responded (Doc. 16), opposing the motion.
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Petitioner replied on April 8, 2026 (Doc. 17).
III. APPLICATION OF LAW TO FACTS
Petitioner concedes that, constitutional concerns aside, he is properly detained
under 8 U.S.C. § 1225(b), and thus “[t]he sole issue here is whether unreasonably
prolonged detention under 8 U.S.C. §1225(b) without a bond hearing violates due
process.” (Reply at 1.)
A. DETENTION UNDER 1225(B) PROPER
In Jennings v. Rodriguez, 583 U.S. 281 (2018), the Court summarized the pre-
removal detention statutes:
In sum, U.S. immigration law authorizes the Government to detain
certain aliens seeking admission into the country under §§ 1225(b)(1)
and (b)(2).
583 U.S. at 289.1 The detention statute provides:
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 [removal] proceeding
8 U.S.C. § 1225(b)(2)(A).
The Jennings Court summarized:
That process of [deciding who may enter and/or stay in the
country] generally begins at the Nation's borders and ports of entry,
where the Government must determine whether an alien seeking to
enter the country is admissible. Under [ ] 8 U.S.C. § 1225, an alien
who “arrives in the United States,” or “is present” in this country but
“has not been admitted,” is treated as “an applicant for admission.” §
1 In responding to the TRO motion, Respondents cited to the recent decision in
Buenrostro-Mendez v. Bondi,166 F.4th 494, 508 (5th Cir. 2026). (Doc. 16 at 3.) See also
Avila v. Bondi, 2026 WL 819258 (8th Cir. Mar. 25, 2026). Cf. Rodriguez v. Warden,
Golden State Annex, 2026 WL 673401 (E.D. Cal. Mar. 10, 2026), report and
recommendation adopted sub nom. Rodriguez v. Warden, 2026 WL 688925 (E.D. Cal.
Mar. 11, 2026) (detailing disagreements with Buenrostro-Mendez). That Fifth Circuit’s
decision in that case is inapposite here. It decided only whether aliens who have gained
entry (albeit illegally) and surreptitiously remained in the country could nonetheless be
deemed to be “seeking admission,” and thus subject to mandatory detention under §
1225(b). Here, Petitioner admits he actually sought admission, not that he has merely been
deemed to be seeking it.
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1225(a)(1). Applicants for admission must “be inspected by
immigration officers” to ensure that they may be admitted into the
country consistent with U.S. immigration law. § 1225(a)(3).
As relevant here, applicants for admission fall into one of two
categories, those covered by § 1225(b)(1) and those covered by §
1225(b)(2).
* * *
Regardless of which of those two sections authorizes their
detention, applicants for admission may be temporarily released on
parole “for urgent humanitarian reasons or significant public benefit.”
§ 1182(d)(5)(A); see also 8 C.F.R §§ 212.5(b), 235.3 (2017). Such
parole, however, “shall not be regarded as an admission of the alien.”
8 U.S.C. § 1182(d)(5)(A). Instead, when the purpose of the parole has
been served, “the alien shall forthwith return or be returned to the
custody from which he was paroled and thereafter his case shall
continue to be dealt with in the same manner as that of any other
applicant for admission to the United States.” Ibid.
Jennings, 583 U.S. at 287-288. Thus, any parole from detention under § 1225 arises only
under § 1182(d)(5) under the discretion of the Secretary.
B. LIMITED CONSTITUTIONAL RIGHTS
In Shaughnessy v. United States ex rel. Mezei, the petitioning alien had (after a
period of residence) left the United States and spent 19 months “behind the iron curtain”
before attempting to return to the U.S. The Court found he was not challenging his
exclusion, just his continued detention on Ellis Island because other countries would not
take him. 345 U.S. 206, 207 (1953). The Mezei Court quoted Knauff for the proposition
that while aliens who had already “passed through our gates, even illegally, may be
expelled only after proceedings conforming to traditional standards of fairness
encompassed in the due process of law...But an alien on the threshold of initial entry stands
on a different footing: ‘Whatever the procedure authorized by Congress is, it is due process
as far as an alien denied entry to the country is concerned.’” Mezei, 345 U.S. at 212
(quoting Knauff, 338 U.S. at 544). The Court went on to determine whether Mezei could
be detained indefinitely on Ellis Island, concluding that Mezei was not deprived of “any
statutory or constitutional right.” 345 U.S. at 215-216.
In Dep't of Homeland Sec. v. Thuraissigiam, the Supreme Court discussed the due
process rights of arriving aliens seeking admission. “[A]s to ‘foreigners who have never
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been naturalized, nor acquired any domicil or residence within the United States, nor even
been admitted into the country pursuant to law,’ ‘the decisions of executive or
administrative officers, acting within powers expressly conferred by Congress, are due
process of law.’”591 U.S. 103, 138 (2020) (quoting Nishimura Ekiu v. U.S., 142 U.S. 651,
660 (1892)). This is illustrative of the enduring authority of Mezei, although the facts of
Thuraissigiam were limited to a challenge to the admission decision, and were so
disconnected from detention that the Thuraissigiam court found no basis for habeas
jurisdiction, and the decision contains no language extending its holding beyond the
admission decision.
In Zadvydas v. Davis, 533 U.S. 678, 688 (2001) (habeas challenge to post-removal
order detention), the Court distinguished Mezei in finding a right to a detention hearing for
aliens post-removal order. The Court discussed Mezei’s status as an “arriving alien”
deemed “stopped at the border.” Zadvydas, 533 U.S. at 693-694 (“this Court's …rejection
of his challenge to continued detention rested upon a basic territorial distinction,” i.e. his
detention on Ellis Island was not a “landing”) (citing Mezei, 345 U.S. at 215). The
Zadvydas Court held that post-removal order detention without a bond hearing was
limited, and created a six month window in which continued detention was presumptively
constitution. In Xi v. U.S. I.N.S., 298 F.3d 832, 837 (9th Cir. 2002), the Ninth Circuit
recognized Mezei describes due process rights of arriving aliens regarding detention, but
found Zadvydas’s constitutional construction of § 1231(a)(6) to apply to all post-removal
order aliens, including arriving aliens.
Of course, here, Petitioner is not being detained post-removal order pursuant to §
1231(a)(6). Rather, his removal is still being adjudicated in the immigration court. (And
Petitioner asserts he intends to seek judicial review thereafter.) Thus his current detention
is pursuant to 8 U.S.C. § 1225(b). Accordingly, the statutory provision construed by
Zadvydas, and applied in Xi, has no application to Petitioner.
Indeed, in Jennings the Court declined to extend Zadvydas to an inadmissible alien,
because: (1) detention under § 1225(b) has a definite term (completion of proceedings);
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(2) the detention is statutorily mandated, rather than permissive, and thus not ambiguous;
and (3) unlike § 1231(a)(6) detention, detention under § 1225(b) is subject to exceptions,
namely § 1182(b)(5). Jennings, 583 U.S. at 299-301. (The Jennings Court reached similar
conclusions with respect to detention under § 1226. Id. at 303-306.) Thus the Court found
no opportunity to apply the constitutional avoidance canon employed in Zadvydas.
Petitioner points to various district court cases to argue that this Court should
recognize constitutional rights beyond what Congress has established, despite Mezei’s
clear holding. Petitioner cites to Banda v. McAleenan, 385 F. Supp. 3d 1099 (W.D. Wash.
2019) which decided without reliance on Zadvydas that 17 months detention under §
1225(b) without a bond hearing was “prolonged” and thus a violation of due process. And
Petitioner points to Toktosunov v. Wamsley, C25-1724TL, 2025 WL 3492858, at *4 (W.D.
Wash Dec. 5, 2025) (“‘[n]early all district courts that have considered the issue agree that
prolonged mandatory detention pending removal proceedings, without a bond hearing,
will—at some point—violate the right to due process). The undersigned is not convinced.
In Banda, Judge Robart made no effort to address the limitations on constitutional
rights of unadmitted aliens recognized in Mezei. Instead, he simply adopted the
proposition that at some point, prolonged detention must amount to a constitutional
violation for all persons.
The closest to an affirmative authority cited in Banda was Rodriguez v. Robbins
(“Rodriguez II”), 715 F.3d 1127 (9th Cir. 2013), where the Ninth Circuit addressed in a
class action the concerns that prolonged detention under §§ 1225(b) and 1226(c) without
a bond hearing would be “constitutionally doubtful,” and thus construed the statutes to
require bond hearings after six months. But that case was reversed by the Supreme Court
in Jennings, finding unsupportable the Ninth Circuit’s attempts to employ “constitutional
avoidance” to write in limitations on detention under those sections, and remanding for
further proceedings on the underlying constitutional claims. Jennings, 583 U.S. at 312.
Moreover, in so doing, the Court recognized that “some members of the certified class
may not be entitled to bond hearings as a constitutional matter,” and cited to Mezei, and
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cited portions of Rodriguez II and III where the Ninth Circuit had already acknowledged
such a limitation citing Mezei. Id. at 313.
Eventually, in Rodriguez v. Marin (“Rodriguez IV”), 909 F.3d 252 (9th Cir. 2018)
the Ninth Circuit observed:
We have grave doubts that any statute that allows for arbitrary
prolonged detention without any process is constitutional or that
those who founded our democracy precisely to protect against the
government’s arbitrary deprivation of liberty would have thought so.
Arbitrary civil detention is not a feature of our American government.
“[L]iberty is the norm, and detention prior to trial or without trial is
the carefully limited exception.” United States v. Salerno, 481 U.S.
739, 755, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987). Civil detention
violates due process outside of “certain special and narrow
nonpunitive circumstances.” Zadvydas v. Davis, 533 U.S. 678, 690,
121 S.Ct. 2491, 150 L.Ed.2d 653 (2001) (internal quotation marks
and citation omitted). As Justice Breyer wrote in Rodriguez,
The Fifth Amendment says that “[n]o person shall be ...
deprived of life, liberty, or property without due process of
law.” An alien is a “person.” To hold him without bail is to
deprive him of bodily “liberty.” And, where there is no bail
proceeding, there has been no bail-related “process” at all. The
Due Process Clause—itself reflecting the language of the
Magna Carta—prevents arbitrary detention.
138 S.Ct. at 861 (Breyer, J., dissenting) (alteration in original)
(citations omitted).
Rodriguez IV, 909 F.3d at 256–57 (9th Cir. 2018). But the Ninth Circuit did not revisit
the Mezei issue. In addressing a call to impose bond mandates under § 1226, Ninth Circuit
Judge Bumatay addressed the above dicta from Rodriguez IV, and observed:
Absent any allegation that the extended detention here is unrelated to
an immigration purpose, the mere fact that detention is “prolonged”
doesn't alter the statutory framework. Indeed, in our circuit, the
median processing time for an immigration case to reach a merits
determination is 39 months. Does that mean that any immigration
proceeding appealed in the Ninth Circuit would automatically
invalidate mandatory detention under § 1226(c)? Why should our
delays in processing cases impact Congress's design? And dicta from
Rodriguez v. Marin isn't a basis to rule otherwise. First, the Rodriguez
order was written after the Supreme Court expressly rejected our
view that immigration statutes must allow for individualized bond
hearings after detentions become prolonged. 909 F.3d at 255. Second,
Rodriguez's musings were mainly justified by a criminal law ruling.
Id. at 256–57 (quoting United States v. Salerno, 481 U.S. 739, 755,
107 S.Ct. 2095, 95 L.Ed.2d 697 (1987)). But that's irrelevant when it
comes to immigration law. See Demore, 538 U.S. at 521, 123 S.Ct.
1708. Third, Rodriguez cites Zadvydas v. Davis, 533 U.S. 678, 690,
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121 S.Ct. 2491, 150 L.Ed.2d 653 (2001), for the proposition that
“[c]ivil detention” violates due process outside of “certain special and
narrow nonpunitive circumstances.” Rodriguez, 909 F.3d at 257
(simplified). But Zadvydas only holds that immigration detention
must “serve its purported immigration purpose,” Demore, 538 U.S.
at 526, 123 S.Ct. 1708, and there is no argument that the detention of
criminal aliens serves no immigration purpose. Finally, Rodriguez
quotes at length Justice Breyer's dissenting opinion in Jennings v.
Rodriguez, 583 U.S. 281, 138 S.Ct. 830, 200 L.Ed.2d 122 (2018).
Rodriguez, 909 F.3d at 257 (quoting Jennings, 583 U.S. at 330, 138
S.Ct. 830) (Breyer, J., dissenting). But respectfully, a dissenting view
is no reason to upset congressional will.
In contrast, Rodriguez ignored the long history of deference to
the political branches in administering the immigration system. See
Demore, 538 U.S. at 538–40, 123 S.Ct. 1708 (O'Connor, J.,
concurring); Rodriguez Diaz, 53 F.4th at 1215–18 (Bumatay, J.,
concurring). Thus, no extra bond hearing was due here.
Martinez v. Clark, 124 F.4th 775, 788 (9th Cir. 2024) (Bumatay, J., concurring).
In sum, neither the Supreme Court nor the Ninth Circuit have deviated from Mezei’s
limitation on the due process rights of admission-seeking aliens to be released from
detention under § 1225(b). Cf. Barrera-Echavarria v. Rison, 44 F.3d 1441, 1448 (9th Cir.
1995) (finding no constitutional limitation on prolonged detention of excludable aliens,
relying in part on Mezei).
The undersigned is aware that other district judges in the Ninth Circuit have reached
the opposite conclusion. See Avakian v. Cantu, CV-26-00104-PHX-SHD-CDB, Report
and Recommendation, Doc. 17 at 18-19 (D.Ariz. 2026), adopted 2026 WL 746351, at *2
(D. Ariz. Mar. 17, 2026) (detailing cases).
But at least some judges in this District have found no due process limitation on
detention under § 1225(b). See e.g. Ibarra-Perez v. Howard, CV-20-0739-PHX-DWL,
468 F. Supp. 3d 1156, 1177 (D. Ariz. 2020) (finding no limitation on detention of
admission-seeking alien during removal proceedings); Munoz v. Bondi, CV-25-02951-
PHX-MTL, 2026 WL 380610, at *1 (D. Ariz. Feb. 11, 2026) (same, citing Thuraissigiam’s
reference to rights limited to those provided by statute); Korneva v. Rokosky, CV-26-
01505-PHX-MTL, 2026 WL 851591, at *1 (D. Ariz. Mar. 11, 2026) (same). Cf. Avakian
v. Cantu, CV-26-00104-PHX-SHD, 2026 WL 746351, at *2 (D. Ariz. Mar. 17, 2026)
(finding opposition to claim of due process violation from prolonged detention under §
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1225(b) waived by failure to raise in response).
Accordingly, the undesigned concludes that Petitioner has no due process right to
release on any basis from his current detention under § 1225(b),2 except as provided by
Congress, e.g. under 8 U.S.C. § 1182(d)(5). Thus, the Court need not consider the
application of the factors applied in Banda or other due process analyses, to determine
whether the facts of Petitioner’s case justify release. Therefore, the Petition must be
denied.
C. MOTION FOR TEMPORARY RESTRAINING ORDER
As noted by Petitioner, to obtain such relief, Petitioner “must establish that he is
likely to succeed on the merits.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20
(2008). (Motion, Doc. 14 at 5.) Because Petitioner’s Petition is without merit, he cannot
show a likelihood of success on the merits. Accordingly, his Motion for Preliminary Relief
must be denied.
IV. RECOMMENDATION
IT IS THEREFORE RECOMMENDED:
(A) Petitioner's Petition for Writ of Habeas Corpus (Doc. 1) be DENIED.
(B) Petitioner’s Motion for Temporary Restraining Order (Doc. 14) be DENIED.
V. EFFECT OF RECOMMENDATION
This recommendation is not an order that is immediately appealable to the Ninth
Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of
Appellate Procedure, should not be filed until entry of the district court's judgment.
However, pursuant to Rule 72(b), Federal Rules of Civil Procedure, the parties shall
have fourteen (14) days from the date of service of a copy of this recommendation within
2 When Petitioner has a final order of removal, and his detention shifts to § 1231(a)(6), the
limitations in Xi may apply to afford him a right to a bond hearing.
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which to file specific written objections with the Court. See also Rule 8(b), Rules
Governing Section 2254 Proceedings. Thereafter, the parties have fourteen (14) days
within which to file a response to the objections. Failure to timely file objections to any
findings or recommendations of the Magistrate Judge will be considered a waiver of a
party's right to de novo consideration of the issues, see United States v. Reyna-Tapia, 328
F.3d 1114, 1121 (9th Cir. 2003)(en banc), and will constitute a waiver of a party's right to
appellate review of the findings of fact in an order or judgment entered pursuant to the
recommendation of the Magistrate Judge, Robbins v. Carey, 481 F.3d 1143, 1146-47 (9th
Cir. 2007).
In addition, the parties are cautioned Local Civil Rule 7.2(e)(3) provides that
“[u]nless otherwise permitted by the Court, an objection to a Report and Recommendation
issued by a Magistrate Judge shall not exceed ten (10) pages.”
Dated: April 8, 2026
25-4353r RR 26 04 07 on HC.docx
James F. Metcalf
United States Magistrate Judge
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