Mikhail Savin v. David R Rivas, et al.

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Mikhail Savin, No. CV-26-01120-PHX-DWL

10 Petitioner, ORDER

11 v.

12 David R Rivas, et al.,

13 Respondents. 14 15 This is a habeas corpus proceeding under 28 U.S.C. § 2241 that was referred to a 16 magistrate judge for the preparation of a report and recommendation (“R&R”). (Doc. 4.) 17 On April 10, 2026, the R&R issued. (Doc. 14.) It concludes that Petitioner is entitled to a 18 bond hearing, such that his habeas petition should be granted. (Id. at 15-16.) 19 Although neither side filed objections to the R&R, the Court retains authority to 20 reject or modify the recommended disposition. See 28 U.S.C. § 636(b)(1)(C) (“A judge of 21 the court may accept, reject, or modify, in whole or in part, the findings or 22 recommendations made by the magistrate judge.”). See also Thomas v. Arn, 474 U.S. 140, 23 154 (1985) (“[W]hile the statute does not require the judge to review an issue de novo if 24 no objections are filed, it does not preclude further review by the district judge, sua sponte 25 . . . .”); Decker v. Berryhill, 856 F.3d 659, 663 (9th Cir. 2017) (“A district court’s authority 26 to review a magistrate judge’s [R&R] is not conditioned on a party’s making an 27 objection.”). With the utmost respect to the Magistrate Judge, the Court concludes this is 28 one of those rare instances where rejection of the R&R’s recommended disposition is 1 warranted despite the absence of objections. 2 As set forth in the R&R, Petitioner is a citizen of Russia who, while in Mexico, 3 applied for admission to the United States using the CBP One application. (Doc. 14 at 1.) 4 In October 2024, Petitioner was detained at the border and served with a notice to appear. 5 (Id.) “[H]is detention is pursuant to 8 U.S.C. § 1225.” (Id. at 2 n.1.) Petitioner 6 subsequently conceded the charge of inadmissibility, filed an application for asylum, and 7 also sought withholding of removal and protection under the Convention Against Torture. 8 (Id. at 1-2.) In June 2025, an Immigration Judge (“IJ”) found Petitioner credible but denied 9 his claims for relief. (Id. at 2-3.) In July 2025, Petitioner appealed the IJ’s decision to the 10 Board of Immigration Appeals (“BIA”). (Id. at 3.) In November 2025, Petitioner filed his 11 opening brief with the BIA. (Id.) The Department of Homeland Security did not file a 12 response brief. (Id. at 4.) The BIA appeal remains pending. (Id.) Against this backdrop, 13 Petitioner argues that “the length of his detention, without a determination as to whether 14 he is a flight risk or a danger to the community, violates his right to due process.” (Id. at 15 4-5.) 16 As the R&R correctly notes, Petitioner’s continued detention under these 17 circumstances is statutorily mandated under 8 U.S.C. § 1225(b). (Id. at 7.) The disputed 18 issue is whether this statutorily mandated civil detention is nevertheless unconstitutional, 19 at least as applied to Petitioner. 20 In Ibarra-Perez v. Howard, 468 F. Supp. 3d 1156 (D. Ariz. 2020), this Court 21 addressed a similar issue. There, an alien who was “taken into DHS custody” in January 22 2020 and “detained under 8 U.S.C § 1225(b)” filed a habeas petition arguing, inter alia, 23 that “his prolonged detention without a custody redetermination hearing violates the Due 24 Process Clause of the Fifth Amendment.” Id. at 1160-61. The Court disagreed and denied 25 the habeas petition. After canvassing the relevant Ninth Circuit and Supreme Court 26 authorities, the Court stated: 27 [I]t is permissible under 8 U.S.C. § 1225(b) to detain an arriving alien who 28 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 1 detention may last, although the Ninth Circuit suggested in Rodriguez II [Rodriguez v. Robbins, 715 F.3d 1127 (9th Cir. 2013)] and Rodriguez III 2 [Rodriguez v. Robbins, 804 F.3d 1060 (9th Cir. 2015)] that prolonged 3 detention under § 1225(b) would raise constitutional concerns when applied to a specific subgroup of arriving aliens—namely, LPRs [lawful permanent 4 residents] who previously resided in the United States—it did not question 5 the constitutionality of the prolonged detention of arriving aliens in Petitioner’s circumstances. Instead, it seemed to reaffirm that, under 6 [Barrera-Echavarria v. Rison, 44 F.3d 1441 (9th Cir. 1995) (en banc)], such 7 detention is constitutionally permissible while an asylum/removal proceeding is pending. Nor has the Ninth Circuit issued any [subsequent] 8 decisions that overrule those earlier holdings. 9 Id. at 1175-76 (cleaned up). Later, the Court added: 10 11 [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 12 constitutionally permissible to require Petitioner to remain in custody for the 13 duration of his removal proceeding. If anything, the Ninth Circuit seemed to ratify that understanding of Barrera-Echavarria in Rodriguez II and 14 Rodriguez III. And neither the Supreme Court’s decision in [Jennings v. 15 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 16 doubt upon the continued validity of those portions of Barrera-Echavarria, Rodriguez II, and Rodriguez III. Thus, . . . Petitioner is not entitled to a bond 17 hearing under current Ninth Circuit law. 18 19 Id. at 1177 (cleaned up). 20 In reaching this conclusion, the Court acknowledged that some district courts— 21 including the court in Banda v. McAleenan, 385 F. Supp. 3d 1099 (W.D. Wash. 2019)— 22 had come out the other way and concluded that aliens being detained under § 1225(b) may, 23 at least after a certain period of time in immigration custody, be entitled as a matter of due 24 process to a bond hearing. Id. at 1177. But the Court identified reasons why it respectfully 25 disagreed with those decisions, including that they “did not cite or discuss Barrera- 26 Echavarria, the ‘entry fiction,’ or the portions of Rodriguez II and Rodriguez III that seem 27 to adopt Barrera-Echavarria’s logic as it pertains to arriving aliens who are detained under 28 1 § 1225(b) and are subject to the entry fiction.” Id. at 1177 n.25.1 Finally, the Court 2 emphasized that its denial of habeas relief was “not an approval of indefinite detention. 3 The statute under which Petitioner is being detained authorizes his detention only ‘until 4 specified events take place,’ i.e., until the resolution of the current removal proceeding. 5 And if Petitioner’s removal ceases to become reasonably foreseeable, Petitioner will have 6 other potential avenues for seeking release.” Id. (citation omitted). 7 Two days after Ibarra-Perez was decided, the Supreme Court decided Department 8 of Homeland Security v. Thuraissigiam, 591 U.S. 103 (2020). There, an alien apprehended 9 near the border was “detained . . . for expedited removal” pursuant to § 1225(b). Id. at 114. 10 After an IJ found that the alien lacked a credible fear of persecution and denied his asylum 11 claim, the alien filed a habeas petition seeking to challenge, on various grounds, the 12 unfavorable credible-fear determination. Id. at 114-15. The disputed issue in 13 Thuraissigiam was the constitutionality of a statutory provision barring judicial review of 14 such claims—the Ninth Circuit held this provision was unconstitutional but the Supreme 15 Court reversed, explaining that “[w]hile aliens who have established connections in this 16 country have due process rights in deportation proceedings, the Court long ago held that 17 Congress is entitled to set the conditions for an alien’s lawful entry into this country and 18 1 In Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206 (1953), the Supreme 19 Court invoked the entry fiction as one reason for concluding that the habeas petitioner in that case—an alien who had been detained on Ellis Island for more three years upon 20 attempting to enter the country—did not have a constitutional right to a bond hearing. Id. at 215-16 (concluding that “we do not think that [the petitioner’s] continued exclusion 21 deprives him of any statutory or constitutional right” in part because “he is treated as if stopped at the border,” and contrasting the petitioner’s situation with that of “resident aliens 22 temporarily detained pending expeditious consummation of deportation proceedings”). See also Barrera-Echavarria, 44 F.3d at 1449-50 (“Barrera argues that Mezei is inapposite 23 because it involved only the legality of continued exclusion under the special provisions of the Passport Act, and not the legality of Mezei’s detention. This interpretation, however, 24 is incorrect: while the Court spoke in terms of exclusion, its holding necessarily included a determination that Mezei’s detention was legal as well.”) (citation omitted); Palma v. 25 Arteta, 2026 WL 697015, *11-12 (S.D.N.Y. 2026) (“[T]he entry distinction applies with full force in challenges to a non-entered alien’s detention. Mezei, after all, involved a non- 26 entered alien who sought release from detention on bond, and the Supreme Court rejected his challenge because he was ‘an alien on the threshold of initial entry.’ It makes little 27 sense to distinguish the Government’s power with respect to a non-entered alien’s ‘application for admission’ from its power with respect to such an alien’s detention. The 28 power to exclude and the power to detain pending exclusion go hand in hand.”) (cleaned up). 1 that, as a result, an alien at the threshold of initial entry cannot claim any greater rights 2 under the Due Process Clause. [Petitioner] attempted to enter the country illegally and was 3 apprehended just 25 yards from the border. He therefore has no entitlement to procedural 4 [due process] rights other than those afforded by statute.” Id. at 107. 5 In the Court’s view, Thuraissigiam underscores the conclusion reached in Ibarra- 6 Perez. Indeed, “[w]hile Thuraissigiam was decided in the admission context, it cited and 7 reaffirmed the continuing vitality of Mezei, which addressed the issue of detention.” 8 Gonzales Garcia v. Rosen, 513 F. Supp. 3d 329, 333 (W.D.N.Y. 2021). Accordingly, since 9 Thuraissigiam was decided, many district courts—albeit not all (and not even most) district 10 courts—have concluded that an arriving alien subject to statutorily mandated detention 11 under §§ 1225(b)(1) or 1225(b)(2) does not have a constitutional right to a bond hearing. 12 See, e.g., Korneva v. Rokosky, 2026 WL 851591, *1 (D. Ariz. 2026); Palma v. Arteta, 2026 13 WL 697015, *11-12 (S.D.N.Y. 2026); Leon Alcazar v. Cantu, 2025 WL 2548698, *12-14 14 (D. Ariz. 2025), adopted by 2025 WL 2304357 (D. Ariz. 2025); Mendoza-Linares v. 15 Garland, 2024 WL 3316306, *2 (S.D. Cal. 2024); Petgrave v. Aleman, 529 F. Supp. 3d 16 665, 676-79 (S.D. Tex. 2021); Gonzales Garcia, 513 F. Supp. 3d at 336. See generally 17 Doe v. Bondi, 2025 WL 3516292, *5-6 (D. Colo. 2025) (surveying the relevant authorities, 18 noting that “[s]ome courts have held that, at some point, due process requires a noncitizen 19 subject to prolonged detention under Section 1225(b) be given an individualized bond 20 hearing before an immigration judge . . . [b]ut other courts have held that due process 21 imposes no time limit or hearing requirement when an alien is subject to mandatory 22 detention under Section 1225(b) while removal proceedings are pending,” and concluding 23 that “procedural due process does not afford inadmissible arriving aliens subject to 24 prolonged detention a right to release or a bond hearing prior to the conclusion of removal 25 proceedings”). Having carefully considered the latest authorities on this topic, as well as 26 the R&R’s analysis and the parties’ arguments, and acknowledging the existence of a split 27 in authority on the issue,2 the Court still concludes there is no constitutional right to a bond

28 2 As the R&R notes, “[a] majority of the federal district courts that have considered the question have concluded that at some point prolonged detention under § 1225(b), 1 hearing in this context. This conclusion is also consistent with the Ninth Circuit’s recent 2 observation that, “after the Supreme Court’s decisions in Jennings and [Johnson v. 3 Arteaga-Martinez, 596 U.S. 573 (2022)], it remains undetermined whether the Due Process 4 Clause requires additional bond procedures under any immigration detention statute.” 5 Rodriguez Diaz v. Garland, 53 F.4th 1189, 1201 (9th Cir. 2022). 6 Nor does this case fall within either of the potential exceptions identified in Ibarra- 7 Perez. First, this is not a situation involving “indefinite” detention because the duration of 8 Petitioner’s detention has a known endpoint that is subject to external constraints—namely, 9 the conclusion of his BIA appeal (and, perhaps, any subsequent petition for review in the 10 Ninth Circuit). Cf. Prieto-Romero v. Clark, 534 F.3d 1053, 1064-65 (9th Cir. 2008) 11 (rejecting prolonged detention claim where the delay in removal was caused by the 12 petitioner’s request for “[j]udicial review, [which] unlike the administrative process the 13 government invoked in [a different case], is subject to strict procedural rules” that serve as 14 an “independent, external constraint” and provide “satisfactory assurance that [the process] 15 will be resolved with reasonable expedition”) (cleaned up). Second, Petitioner has not 16 established that his removal has ceased being “reasonably foreseeable.” That exception is 17 sometimes invoked when an alien has been granted withholding of removal from his home 18 country and the government has not established a reasonable likelihood of removal to a 19 third country. See, e.g., Chen v. Noem, 2026 WL 962606, *2 (D. Ariz. 2026) (granting 20 habeas petition filed by Chinese detainee where “China will not be considered as a removal 21 destination (due to the withholding order),” “all third-party states have refused to accept 22 her as a deportee,” and “Respondents indicate[d] they are no longer even responsible for 23 attempting to identify a potential third country to which Petitioner might be removed”) 24 (cleaned up). But here, Petitioner has not been granted withholding of removal to his home 25 country or otherwise attempted to show why such removal is unforeseeable. 26 As a final matter, the R&R notes that many of the “equities of this case” are 27

28 without an individualized bond hearing, violates the detainee’s right to due process.” (Doc. 14 at 7.) 1 || favorable to Petitioner. (Doc. 14 at 15.) “Petitioner did not attempt to avoid inspection || when he appeared at a port of entry. Petitioner appeared for inspection with the hope of 3 || admission and the express acquiescence of the government via the CBP process. Petitioner 4|| has a wife, and a child he has never seen, who are legally present in the United States... 5 || [and] Petitioner and his family have a sponsor who will ensure that the family does not 6 || become an economic burden on the state.” (/d. at 13-14.) Although the Court is || sympathetic to these facts, the Court is also mindful that, in our system of government, 8 || “Congress is entitled to set the conditions for an alien’s lawful entry into this country.” 9|| 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 11 |} procedural rights other than those afforded by statute.” Jd. See also Palma, 2026 WL 12 || 697015 at *10 (“[E]ven in cases where the balance of interests might seem to favor the 13} non-entered alien’s right to release, courts must be mindful that matters of immigration 14]| ... are largely within the control of the executive and the legislature, and so whatever our 15 || individual estimate of that policy and the fears on which it rests, .. . courts cannot substitute their judgment for the legislative mandate.) (cleaned up). 17 Accordingly, 18 IT IS ORDERED that: 19 1. The R&R’s recommended disposition (Doc. 14) is rejected. 20 2. The habeas petition (Doc. 1) is denied. 21 3. Petitioner’s motion to enforce (Doc. 15) is denied as moot. 22 4. The Clerk shall enter judgment accordingly and terminate this action. 23 Dated this 29th day of April, 2026. 24

26 } t _ Dominic W, Lanza 7 United States District Judge 28

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