Oli v. Bondi et al

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UNITED STATES DISTRICT COURT
DISTRICT OF ARIZONA
Khima Oli,
Petitioner
-vs-
Pamela Bondi, et al.,
Respondents.
CV-26-2102-PHX-SHR (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. ). 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
The relevant facts in this case are not disputed. Petitioner is a native and citizen of
Nepal. She entered the United States on December 9, 2024, and was immediately
apprehended by Immigration and Customs Enforcement Officers. She has been detained
ever since.
Petitioner was charged with being removable as an arriving alien under 8 U.S.C. §
1225(b). On August 22, 2025 Petitioner was ordered removed by the Immigration Judge
(IJ). She appealed that decision to the Board of Immigration Appeals (BIA). Her appeal
remains pending with the BIA.
/ /
/ /
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III. PARTIES’ ARGUMENTS
Despite acknowledging the mandatory nature of her detention under 8 U.S.C. §
1225, Petitioner argues in her remaining claim that she has a Fifth Amendment Due
Process right to a bond determination despite her ongoing removal proceedings.1
Respondents argue Section 1225(b)(1) mandates Petitioner’s detention through the
completion of removal proceedings, citing Jennings v. Rodriguez, 583 U.S. 281, 296-305
(2018). Respondents further argue that as an alien seeking admission, her due process
rights are limited to those granted by Congress, citing various cases, including Shaugnessy
v. United States ex rel. Mezei, 345 U.S. 206, 212 (1953).
On May 18, 2026, Petitioner filed a Reply (Doc. 12), dated April 30, 2026.
Petitioner repeats her arguments that she is entitled to a bond determination under the Fifth
Amendment. She references cases involving detention of aliens under 8 U.S.C. § 1226,
applicable to aliens who have effected an entry into the United States, and returning legal
permanent residents.
IV. APPLICATION OF LAW TO FACTS
A. DETENTION REQUIRED BY STATUTE
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. 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:
1 Petitioner also raised an Eighth Amendment claim, which was dismissed in the screening
Order. (Order 3/30/26, Doc. 4.)
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That process of [deciding who may enter and/or stay in the
country] generally begins at the Nation's borders and ports of entry,
where the Government must determine whether an alien seeking to
enter the country is admissible. Under [ ] 8 U.S.C. § 1225, an alien
who “arrives in the United States,” or “is present” in this country but
“has not been admitted,” is treated as “an applicant for admission.” §
1225(a)(1). Applicants for admission must “be inspected by
immigration officers” to ensure that they may be admitted into the
country consistent with U.S. immigration law. § 1225(a)(3).
As relevant here, applicants for admission fall into one of two
categories, those covered by § 1225(b)(1) and those covered by §
1225(b)(2).
* * *
Regardless of which of those two sections authorizes their
detention, applicants for admission may be temporarily released on
parole “for urgent humanitarian reasons or significant public benefit.”
§ 1182(d)(5)(A); see also 8 C.F.R §§ 212.5(b), 235.3 (2017). Such
parole, however, “shall not be regarded as an admission of the alien.”
8 U.S.C. § 1182(d)(5)(A). Instead, when the purpose of the parole has
been served, “the alien shall forthwith return or be returned to the
custody from which he was paroled and thereafter his case shall
continue to be dealt with in the same manner as that of any other
applicant for admission to the United States.” Ibid.
Jennings, 583 U.S. at 287-288. Thus, any parole from detention under § 1225 arises only
under § 1182(d)(5) under the discretion of the Secretary.
In her Reply, Petitioner seeks to shoehorn herself into the rights of a legal
permanent resident (LPR) returning to the country. Petitioner relies on Landon v.
Plasencia, 459 U.S. 21, 32 (1982), which held that an LPR who has made only an
“innocent, casual, and brief excursion” outside the country is not an applicant for
admission on their return. But Petitioner is not a returning LPR. She has never effected
any legal entry into the country. Moreover, Landon is instructive on the extent of
Petitioner’ rights given her actual status:
This Court has long held that an alien seeking initial admission
to the United States requests a privilege and has no constitutional
rights regarding his application, for the power to admit or exclude
aliens is a sovereign prerogative.
Landon, 459 U.S. at 32. See id. at 33-34 (distinguishing Mezei because there the departure
from the country had been “for some twenty months”).
She also argues for the first time in her reply that her detention is governed by §
1226(a), not 1225. “The district court need not consider arguments raised for the first time
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in a reply brief.” Zamani v. Carnes, 491 F.3d 990, 997 (9th Cir. 2007). Moreover, this
contention is rejected by Jennings’ conclusion that § 1225(b) governs the detention of
aliens, like Petitioner, “seeking entry into the United States,” Jennings, 583 U.S. at 842,
while § 1226 “applies to aliens already present in the United States,” id. at 846.
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 more than 18 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
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
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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, to avoid a constitutional violation, the statute would be
construed such 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, her removal is still being adjudicated with the BIA. Thus her current
detention is pursuant to 8 U.S.C. § 1225(b). Accordingly, the statutory provision
construed by Zadvydas, and applied in Xi, has no application to Petitioner.
Indeed, in Jennings the Court declined to extend Zadvydas to an inadmissible alien,
because: (1) detention under § 1225(b) has a definite term (completion of proceedings);
(2) the detention is statutorily mandated, rather than permissive, and thus not ambiguous;
and (3) unlike § 1231(a)(6) detention, detention under § 1225(b) is subject to exceptions,
namely § 1182(b)(5). Jennings, 583 U.S. at 299-301. (The Jennings Court reached similar
conclusions about 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, overruled decisions, and dissenting
opinions to argue that this Court should recognize constitutional rights beyond what
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Congress has established, despite Mezei’s clear holding.
For example, Petitioner cites 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 cited portions of Rodriguez II
and III where the Ninth Circuit had already acknowledged such a limitation citing Mezei.
Id. at 313.2
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
2 Petitioner also cites, in her Reply, to Rodriguez III, Rodriguez v. Robbins, 804 F.3d 1060
(9th Cir. 2015), rev'd sub nom. Jennings v. Rodriguez, 583 U.S. 281 (2018). She refers
to a laundry list of other pre-Jennings decisions from other circuits. She does so for the
proposition that pre-final-removal order detention under § 1226(c) is limited to six months.
But Petitioner is an unadmitted alien governed by § 1225, and Mezei’s limitation on due
process of such aliens was acknowledged in Jennings. Petitioner points to no post-
Jennings decisions that reach a contrary conclusion.
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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, Judge
Bumatay of the Ninth Circuit 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,
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.
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1995) (finding no constitutional limitation on prolonged detention of excludable aliens,
relying in part on Mezei).
The undersigned is aware that other district judges around the country, in the Ninth
Circuit and even in this District have reached the opposite conclusion. See e.g., 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).3
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 §
1225(b) waived by failure to raise in response). The undersigned finds these decisions
persuasive.
Accordingly, the undesigned concludes that Petitioner has no due process right to
release on any basis from her current detention under § 1225(b),4 except as provided by
Congress, e.g., under 8 U.S.C. § 1182(d)(5). Thus, the Court need not employ any due
process analyses to determine whether other facts of Petitioner’s case justify release.
Therefore, the Petition must be denied.
3 Petitioner cites the ruling in Forfoi v. Bondi, CV-26-1739-PHX-SMB-JFM (D. Ariz.
March 15, 2026) for the proposition that pre-removal order detention under § 1225(b) is
limited. In that case, however, the Petitioner’s order of removal was alleged to have
become final some nine months before the original petition was filed, and relief was
granted based on Zadvydas’s limitations on post-removal order detention under § 1231.
4 When Petitioner has a final order of removal, and her detention shifts to § 1231(a)(6),
the limitations in Xi may apply to afford her a right to a bond hearing.
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V. RECOMMENDATION
IT IS THEREFORE RECOMMENDED Petitioner's Petition for Writ of Habeas
Corpus (Doc. 1) be DENIED.
VI. EFFECT OF RECOMMENDATION
This recommendation is not an order that is immediately appealable to the Ninth
Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of
Appellate Procedure, should not be filed until entry of the district court's judgment.
However, pursuant to Rule 72(b), Federal Rules of Civil Procedure, the parties shall
have fourteen (14) days from the date of service of a copy of this recommendation within
which to file specific written objections with the Court. See also Rule 8(b), Rules
Governing Section 2254 Proceedings. Thereafter, the parties have fourteen (14) days
within which to file a response to the objections. Failure to timely file objections to any
findings or recommendations of the Magistrate Judge will be considered a waiver of a
party's right to de novo consideration of the issues, see United States v. Reyna-Tapia, 328
F.3d 1114, 1121 (9th Cir. 2003)(en banc), and will constitute a waiver of a party's right to
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: May 29, 2026
26-2102r RR 26 05 19 on HC.docx
James F. Metcalf
United States Magistrate Judge
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