Sala v. RokoskySala v. Rokosky
This is a habeas corpus proceeding under
Although neither side filed objections to the R&R, the Court retains authority to reject or modify the recommended disposition. See
As set forth in the R&R, Petitioner is a native and citizen of Bangladesh who was detained near the border by immigration authorities in January 2025, soon after he entered the United States without inspection, and was then placed in expedited removal proceedings. (Doc. 14 at 1; Doc. 19 at 3.) In March 2026, Petitioner‘s application for asylum was denied and Petitioner was ordered removed from the United States, but Petitioner has appealed the removal order to the Board of Immigration Appeals (“BIA“) and his appeal remains pending. (Doc. 7 ¶ 3; Doc. 19 at 3, 5.)
As the R&R correctly notes, Petitioner‘s continued detention under these circumstances is statutorily mandated under
In Ibarra-Perez v. Howard, 468 F. Supp. 3d 1156 (D. Ariz. 2020), this Court addressed a similar issue. There, an alien who was “taken into DHS custody” in January 2020 and “detained under 8 U.S.C § 1225(b)” filed a habeas petition arguing, inter alia, that “his prolonged detention without a custody redetermination hearing violates the Due Process Clause of the Fifth Amendment.” Id. at 1160-61. The Court disagreed and denied the habeas petition. After canvassing the relevant Ninth Circuit and Supreme Court authorities, the Court stated:
[I]t is permissible under 8 U.S.C. § 1225(b) to detain an arriving alien who has expressed a credible fear of persecution and/or who is subject to removal because he is not clearly entitled to admission. As for how long such detention may last, although the Ninth Circuit suggested in Rodriguez II [Rodriguez v. Robbins, 715 F.3d 1127 (9th Cir. 2013)] and Rodriguez III [Rodriguez v. Robbins, 804 F.3d 1060 (9th Cir. 2015)] that prolonged
detention under § 1225(b) would raise constitutional concerns when applied to a specific subgroup of arriving aliens—namely, LPRs [lawful permanent residents] who previously resided in the United States—it did not question the constitutionality of the prolonged detention of arriving aliens in Petitioner‘s circumstances. Instead, it seemed to reaffirm that, under [Barrera-Echavarria v. Rison, 44 F.3d 1441 (9th Cir. 1995) (en banc)], such detention is constitutionally permissible while an asylum/removal proceeding is pending. Nor has the Ninth Circuit issued any [subsequent] decisions that overrule those earlier holdings.
Id. at 1175-76 (cleaned up). Later, the Court added:
[T]he Court must do its best to discern and apply the law of the Ninth Circuit as it currently stands. As discussed, Barrera-Echavarria suggests it is constitutionally permissible to require Petitioner to remain in custody for the duration of his removal proceeding. If anything, the Ninth Circuit seemed to ratify that understanding of Barrera-Echavarria in Rodriguez II and Rodriguez III. And neither the Supreme Court‘s decision in [Jennings v. Rodriguez, 583 U.S. 281 (2018)] nor the Ninth Circuit‘s remand order in Rodriguez V [Rodriguez v. Marin, 909 F.3d 252 (9th Cir. 2018)] casts any doubt upon the continued validity of those portions of Barrera-Echavarria, Rodriguez II, and Rodriguez III. Thus, . . . Petitioner is not entitled to a bond hearing under current Ninth Circuit law.
Id. at 1177 (cleaned up).
In reaching this conclusion, the Court acknowledged that some district courts—including the court in Banda v. McAleenan, 385 F. Supp. 3d 1099 (W.D. Wash. 2019)—had come out the other way and concluded that aliens being detained under
Two days after Ibarra-Perez was decided, the Supreme Court decided Department of Homeland Security v. Thuraissigiam, 591 U.S. 103 (2020). There, an alien apprehended near the border was “detained . . . for expedited removal” pursuant to
In the Court‘s view, Thuraissigiam underscores the conclusion reached in Ibarra-Perez. Indeed, “[w]hile Thuraissigiam was decided in the admission context, it cited and reaffirmed the continuing vitality of Mezei, which addressed the issue of detention.” Gonzales Garcia v. Rosen, 513 F. Supp. 3d 329, 333 (W.D.N.Y. 2021). Accordingly, since Thuraissigiam was decided, many district courts—albeit not all (and not even most) district courts—have concluded that an arriving alien subject to statutorily mandated detention under
Having carefully considered the latest authorities on this topic, as well as the R&R‘s detailed analysis2 and the parties’ arguments, and acknowledging the existence of a split in
Nor does this case fall within either of the potential exceptions identified in Ibarra-Perez. First, this is not a situation involving “indefinite” detention because the duration of Petitioner‘s detention has a known endpoint that is subject to external constraints—namely, the conclusion of his BIA appeal (and, perhaps, any subsequent petition for review in the Ninth Circuit). Cf. Prieto-Romero v. Clark, 534 F.3d 1053, 1064-65 (9th Cir. 2008) (rejecting prolonged detention claim where the delay in removal was caused by the petitioner‘s request for “[j]udicial review, [which] unlike the administrative process the government invoked in [a different case], is subject to strict procedural rules” that serve as an “independent, external constraint” and provide “satisfactory assurance that [the process] will be resolved with reasonable expedition“) (cleaned up). Second, contrary to the R&R‘s conclusion (Doc. 19 at 22), Petitioner has not established that his removal has ceased being “reasonably foreseeable.” That exception is sometimes invoked when an alien has been granted withholding of removal from his home country and the government has not established a reasonable likelihood of removal to a third country. See, e.g., Chen v. Noem, 2026 WL 962606, *2 (D. Ariz. 2026) (granting habeas petition filed by Chinese detainee where “China will not be considered as a removal destination (due to the withholding order),” “all third-party states have refused to accept her as a deportee,” and “Respondents indicate[d] they are no longer even responsible for attempting to identify a potential third country to which Petitioner might be removed“) (cleaned up). But here, Petitioner does
As a final matter, the R&R emphasizes that “[e]ven considering that the INA does not statutorily provide bond hearings for 1225(b) petitioners, a statute does not reign supreme in our system—the Constitution does.” (Doc. 19 at 22-23.) Although this powerful statement is certainly true as far it goes, the Court is also mindful that, in our system of government, “Congress is entitled to set the conditions for an alien‘s lawful entry into this country.” Thuraissigiam, 591 U.S. at 107. Here, Congress has chosen to mandate detention for aliens in Petitioner‘s circumstance, and as an arriving alien, Petitioner has “no entitlement to procedural rights other than those afforded by statute.” Id. See also Demore v. Kim, 538 U.S. 510, 521 (2003) (“In the exercise of its broad power over naturalization and immigration, Congress regularly makes rules that would be unacceptable if applied to citizens.“) (citation omitted); Harisiades v. Shaughnessy, 342 U.S. 580, 588-89 (1952) (“It is pertinent to observe that any policy toward aliens is vitally and intricately interwoven with contemporaneous policies in regard to the conduct of foreign relations, the war power, and the maintenance of a republican form of government. Such matters are so exclusively entrusted to the political branches of government as to be largely immune from judicial inquiry or interference.“).
Accordingly,
IT IS ORDERED that:
- The R&R‘s recommended disposition (Doc. 19) is rejected.
- The amended habeas petition (Doc. 7) is denied.
- The Clerk shall enter judgment accordingly and terminate this action.
Dated this 1st day of September, 2026.
Dominic W. Lanza
United States District Judge