AGUILAR VILLALOBOS v. KURZDORFER (2025)

DECISION AND ORDER

Pro se Petitioner Wardis Aguilar-Villalobos, a civil immigration detainee currently held at the Buffalo Federal Detention Facility, filed this habeas corpus proceeding pursuant to 28 U.S.C. § 2241. Dkt. 1. Respondents (“the Government”) moved to dismiss the petition. Dkt. 4.

In 2012, Petitioner entered the United States unlawfully and was apprehended the same day near the border. He was later released and remained in the United States while his immigration case progressed. He has been in immigration custody since 2022 and argues that his continued detention is in violation of due process. The Government argues that Petitioner's legal status is the same as if he had not entered the United States (namely, that it is the same now as it was when he was apprehended upon entry), and, thus, he is not entitled to additional due process. As discussed further below, the Court concludes that (1) Petitioner is a “certain other alien” detained under 1225(b), viewed as on the threshold of entry, and that (2) Petitioner is not entitled to procedural protections beyond those provided by statute.

For these reasons and those below, the Court concludes that Petitioner is not entitled either to a bond hearing or release and, therefore, dismisses the petition.

BACKGROUND

I. FACTUAL BACKGROUND

Petitioner is a native and citizen of El Salvador. Dkt. 1 at 5;² Dkt. 4-3 at 2. On August 29, 2012, Petitioner entered the United States, crossing the Rio Grande River near Eagle Pass, Texas. Dkt. 1 at 5; Dkt. 4-3 at 2; Dkt. 4-2 at 1. He was apprehended that same day and underwent screening pursuant to 8 U.S.C. § 1225(b)(1)(A). Dkt. 1 at 5; Dkt. 4-3 at 2. Within a few weeks, Petitioner was interviewed and found to have a credible fear of persecution or torture if returned to El Salvador, so he was referred to immigration proceedings for additional review pursuant to 8 U.S.C. § 1225(b)(1)(B)(ii). Dkt. 4-1 at 2; Dkt. 4-3 at 2; Dkt. 6 at 2, 8-9. A Notice to Appear was issued on October 13, 2012. See Dkt. 4-2 at 3-4. On October 19, 2012, U.S. Immigrations and Customs Enforcement (“ICE”) issued a $7,500 custody bond, and on October 29, 2012, Petitioner was bonded out of ICE custody. Dkt. 6 at 2, 9.

According to Petitioner,³ he then moved around and settled in the Long Island, New York area, where he eventually married a United States citizen and had a child. Dkt. 6 at 2. During this time, Petitioner requested and received a change of venue to the Immigration Court in New York City as his immigration case progressed. Id.

Petitioner was arrested on or about September 27, 2018 by Suffolk County Police Department. Id. at 9. Petitioner was ultimately convicted of the charge of attempted criminal possession of a weapon in Suffolk County Court and sentenced to a period of incarceration of 2.5 years.⁴ Id. at 2, 9; Dkt. 1 at 5. After serving that sentence, Petitioner was transferred directly to ICE custody at the Buffalo Federal Detention Facility in Batavia, New York, on or about June 2, 2022. Dkt. 6 at 2, 9.

Petitioner continued litigating his immigration proceedings, but, ultimately, he was ordered removed by an immigration judge on or about February 24, 2023.⁵ Dkt. 4-3 at 2; Dkt. 4-1 at 2; Dkt. 6 at 9. Petitioner appealed the order of removal to the Board of Immigration Appeals, and that appeal was dismissed on August 1, 2023. Dkt. 4-3 at 2; Dkt. 4-1 at 2; Dkt. 6 at 9. Petitioner also filed a motion to reopen, which was denied on February 26, 2024. Dkt. 4-3 at 2; Dkt. 4-1 at 2.

Petitioner filed two petitions for review (23-6899, 24-616) with the Court of Appeals for the Second Circuit based on these decisions, and those petitions were ultimately consolidated. Dkt. 4-1 at 2; Dkt. 4-3 at 3. Petitioner moved for a stay of removal and, on April 11, 2024, the Second Circuit ordered a stay of removal. Dkt. 4-3 at 3; Dkt. 1 at 5.

II. PROCEDURAL BACKGROUND

Aguilar-Villalobos filed the instant petition under 28 U.S.C. § 2241 on November 18, 2024. Dkt. 1. The Court issued a scheduling order, Dkt. 2, and on January 6, 2025, Respondents moved to dismiss the petition for failure to state a claim. Dkt. 4. Petitioner responded on January 30, 2025, Dkt. 6, and Respondents replied on January 31, 2025, Dkt. 8. That day, the Court issued a text order for supplemental briefing regarding Petitioner's status and the Notice to Appear. Dkt. 9. Respondents filed a response. Dkt. 10. On May 5, 2025, Petitioner filed a letter (Dkt. 12) as well as a motion to appoint counsel (Dkt. 13).

Petitioner continues to be detained at the Buffalo Federal Detention Facility. At the time he filed the petition on November 18, 2024, he alleges he has been detained approximately 29 months. Dkt. 1 at 5.

DISCUSSION

I. JURISDICTION

Habeas corpus review is available to persons who are “in custody in violation of the Constitution or laws or treatises of the United States.” 28 U.S.C. § 2241(c)(3). In the immigration context, only circuit courts have jurisdiction over challenges to the legality of final orders of deportation, exclusion, and removal. See Gittens v. Menifee, 428 F.3d 382, 384 (2d Cir. 2005) (“[The REAL ID Act, 119 Stat. 231, § 106(a) (May 11, 2005)] eliminates habeas jurisdiction over final orders of deportation, exclusion, and removal, providing instead for petitions of review ․, which circuit courts alone can consider.”). District courts, however, can review claims by aliens challenging the constitutionality of their pre-removal detention. See Demore v. Kim, 538 U.S. 510, 516-17, 123 S.Ct. 1708, 155 L.Ed.2d 724 (2003).

II. STATUTORY BASIS FOR DETENTION

Petitioner argues that his immigration detention has been unreasonably prolonged in violation of Fifth Amendment due process and that he is entitled to release or, alternatively, to a bond hearing where the Government bears the burden to prove, by clear and convincing evidence, that he should be detained. Dkt. 1. Petitioner, proceeding pro se, cites to various statutes and cases in support of his arguments, which indicate that Petitioner considers himself subject to mandatory detention under 8 U.S.C. § 1226(c). See, e.g., Dkt. 1 at 12; Dkt. 6 at 3.

The Government, however, contends that Petitioner's detention is currently authorized under 8 U.S.C. § 1225(b) as a “certain other alien” because he unlawfully entered the United States and was detained with 14 days of entry and within 100 miles of the border. Dkt. 4-3 at 3-4. While Petitioner was subject to a final order of removal, the Government argues that the Second Circuit's order staying Petitioner's removal shifted his detention authority from 8 U.S.C. § 1231 back to 8 U.S.C. § 1225(b). See id. at 3 (citing 8 U.S.C. § 1231(a)(1)(B)(ii)). Crucially, the Government argues that the petition should be dismissed because Petitioner, as a “certain other alien” under Section 1225(b), has no right to bring a constitutional due process claim for prolonged immigration detention. Id. at 3-7.

For the reasons below, the Court agrees.

A. 8 U.S.C. § 1225(b)

8 U.S.C. 1225(b) authorizes detention of certain aliens seeking to enter the country.⁶ Jennings v. Rodriguez, 583 U.S. 281, 287, 138 S.Ct. 830, 200 L.Ed.2d 122 (2018). Section 1225 applies to two categories of aliens: “arriving aliens” and “certain other aliens.” St. Charles v. Barr, 514 F. Supp. 3d 570, 575 (W.D.N.Y. 2021) (citing Dorval v. Barr, 414 F. Supp. 3d 386, 390 (W.D.N.Y. 2019)); see 8 U.S.C. § 1225(b).

The statute provides that “arriving aliens”—generally noncitizens appearing as applicants for admission at the border—are subject to expedited removal proceedings “without further hearing or review unless the alien indicates either an intention to apply for asylum ․ or a fear of persecution.” 8 U.S.C. § 1225(b)(1)(A)(i).

Upon that showing of intention to apply for asylum or fear of persecution, the arriving alien is then referred for an interview by an asylum officer, who determines if that individual has a “credible fear” of persecution. 8 U.S.C. §§ 1225(b)(1)(A)(ii), (b)(1)(B)(i)-(ii). If such a credible fear is found, the “alien shall be detained for further consideration of the application for asylum.” 8 U.S.C. § 1225(b)(1)(B)(ii). The only mechanism for release of aliens detained under Section 1225(b) is through discretionary parole. See Dorval, F. Supp. 3d at 391-92; see 8 U.S.C. § 1182(d)(5)(A).

Section 1225(b)(1)(A)(iii)(I), combined with the Homeland Security Act of 2002, authorized the Secretary of the Department of Homeland Security (“DHS”) to designate “certain other aliens” as being subject to these same expedited removal procedures as “arriving aliens.” St. Charles, 514 F. Supp. 3d at 575-76 (citing Designating Aliens for Expedited Removal, 69 Fed. Reg. 4877-01, 48879 (Aug. 11, 2004)). The DHS Secretary then specifically designated “certain other aliens” to include those noncitizens encountered within 100 miles of the border and apprehended within 14 days of their entry into the United States. See Designating Aliens for Expedited Removal, 69 Fed. Reg. 4877-01, 48879 (Aug. 11, 2004). In other words, those noncitizens “who unlawfully enter the United States and are detained within 14 days of entry and within 100 miles of the border are treated the same as ‘arriving aliens’ under the current statutory and regulatory scheme.” St. Charles, 514 F. Supp. 3d at 576; see Dep't of Homeland Sec. v. Thuraissigiam, 591 U.S. 103, 139-40, 140 S.Ct. 1959, 207 L.Ed.2d 427 (2020) (aliens detained shortly after unlawful entry are treated “on the threshold” just like aliens “detained after arriving at a port of entry”).

B. Petitioner Is Detained As a “Certain Other Alien”

The Court concludes that Petitioner's current legal status is a “certain other alien” and that he is detained pursuant to Section 1225(b).⁷ It is undisputed that, in 2012, Petitioner entered the United States at the United States-Mexico border—specifically at Eagle Pass, Texas—and was immediately arrested and served with a Notice and Order of Expedited Removal. See Dkt. 4-2. He was detained within 100 miles of the border and within 14 days of his entry into the United States—and then established a credible fear of persecution and was referred for further consideration of his asylum application. This puts Petitioner squarely in the category of “certain other aliens”—who are treated the same as an “arriving aliens” under the statutory and regulatory framework, as the Supreme Court recognized in Thuraissigiam. 591 U.S. at 139-40, 140 S.Ct. 1959.

Petitioner argues that he is detained under Section 1226(c)—which governs detention of noncitizens who have been convicted of certain crimes. See Dkt. 6 at 3 (stating his conviction “render[ed] petitioner to mandatory detention under 8 U.S.C. 1226(c)”). It is true that Petitioner was convicted of a weapons offense, sentenced to incarceration, and then immediately transferred to ICE custody—but he was not ordered removed based on that crime. Rather, per Petitioner's Notice to Appear, see Dkt. 4-2 at 3-4, Petitioner's removal proceedings were premised on the 2012 determination of inadmissibility and subsequent denial of his asylum application and related relief.⁸ Petitioner's immigration proceedings were not triggered by his conviction of a removable offense and, thus, he was not detained under Section 1226(c).

Petitioner also cites to Zadvydas v. Davis, 533 U.S. 678, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001), and related caselaw concerning prolonged detention under Section 1231, which concerns individuals who have been ordered removed. See, e.g., Dkt. 1 at 12; 8 U.S.C. § 1231. Petitioner was ordered removed as of February 24, 2023 and appealed that decision, unsuccessfully, through the administrative appeals process. As the Government notes, however, Petitioner's appeal of his immigration case to the Second Circuit, combined with the Second Circuit's order staying his removal, means that his detention remains under—or reverted back to being authorized by—Section 1225(b). That is, because he has received a stay from the Second Circuit while his petition for review is pending, the removal period pursuant to Section 1231(a)(1)(B) has not begun yet. See 8 U.S.C. § 1231(a)(1)(B)(i)-(iii). Thus, Petitioner is not detained currently under Section 1231, and the Zadvydas framework does not apply.

For these reasons, Petitioner is not detained pursuant to Section 1226(c) or Section 1231. Rather, he is detained as a “certain other alien” under Section 1225(b), who, under the statutory and regulatory framework, is treated the same as an “arriving alien.” The result is that—even though Petitioner has been present in the United States for years—he is treated as if he had never entered, or as if he were “on the threshold” of entering, the United States. See Thuraissigiam, 591 U.S. at 139-40, 140 S.Ct. 1959; see also Gonzales Garcia v. Rosen, 513 F. Supp. 3d 329, 331, 333 (W.D.N.Y. 2021) (acknowledging the “legal fiction” of treating petitioner as being on the threshold of entry despite being already present in the United States); Poonjani v. Shanahan, 319 F. Supp. 3d 644, 648 (S.D.N.Y. 2018) (noting the “entry fiction” that treated the petitioner as “at the threshold of initial entry” despite being continuously present in the United States for nearly fifteen years).

III. DUE PROCESS CHALLENGE TO DETENTION

The Court next assesses Petitioner's due process arguments in light of his prolonged detention under Section 1225(b). The Supreme Court's ruling in Thuraissigiam and related precedent compel denial of Petitioner's petition here.

For a noncitizen, “the nature of [due process] protection may vary depending upon [an alien's] status and circumstance.” Zadvydas, 533 U.S. at 694, 121 S.Ct. 2491 (citations omitted). The Supreme Court has recognized that aliens who are “on the threshold of initial entry stand[ ] on a different footing” legally than those who “passed through our gates” and are thus deemed to have “entered” the United States. Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 212, 73 S.Ct. 625, 97 L.Ed. 956 (1953); see also Zadvydas, 533 U.S. at 693, 121 S.Ct. 2491 (“The distinction between an alien who has effected an entry into the United States and one who has never entered runs throughout immigration law.”) (citations omitted). In Mezei, the Supreme Court held that, for an alien “on the threshold of initial entry,” due process is “[w]hatever the procedure authorized by Congress is ․” 345 U.S. at 212, 73 S.Ct. 625 (citations omitted).

Nearly seventy years later, in Thuraissigiam, the Supreme Court reaffirmed that constitutional due process protections do not apply to a noncitizen who is physically detained, if he is inadmissible and taken into custody at or shortly after unlawfully crossing the border. See Gonzales-Garcia, 513 F. Supp. 3d at 334. In doing so, Thuraissigiam—a challenge to admission procedures—decisively cited and relied on Mezei, a detention challenge.⁹ See 591 U.S. at 139-40, 140 S.Ct. 1959; Gonzales Garcia, 513 F. Supp. 3d at 334 (rejecting the argument that Thuraissigiam does not apply to detention challenges). Thus, Mezei and Thuraissigiam together require that the Court treat a “certain other alien,” like Petitioner, as being “on the threshold” of entry to the United States and, as such, entitled only to the statutory process provided by Congress.

Based on this precedent, Petitioner's continued detention here, without a bond hearing, does not deprive him of any statutory or constitutional right. See Mezei, 345 U.S. at 215, 73 S.Ct. 625. During his immigration proceedings, Petitioner was found not to have a credible fear of persecution. Accordingly, Petitioner appears to be detained pursuant to Section 1225(b)(1)(B)(iii)(IV), which provides for mandatory detention “pending a final determination of credible fear of persecution and, if found not to have such a fear, until removed.” 8 U.S.C. § 1225(b)(1)(B)(iii)(IV). These immigration statutes do not authorize a bond hearing or provide for release other than discretionary parole by certain officials. See Poonjani, 319 F. Supp. 3d at 648-49 (citation omitted). Petitioner has availed himself fully of the process provided in Section 1225, including applying for asylum and related relief, and ultimately appealing to the Second Circuit. He has been granted a stay of removal while the Second Circuit considers that petition. Based on this, the Court cannot conclude that Petitioner has been denied the procedural protections provided to him by statute.

Petitioner's close ties to the United States do not entitle him to additional process. Indeed, Mezei's twenty-five-year residency in the United States did not provide him with greater due process protections—the Supreme Court still treated him as an “entering alien” and concluded that his prolonged detention did not “deprive him of any statutory or constitutional right.” Mezei, 345 U.S. at 213-15, 73 S.Ct. 625; Petgrave v. Aleman, 529 F. Supp. 3d 665, 677 (S.D. Tex. 2021) (“[D]espite Mezei's prior twenty-five year tenure in the United States ․ he was treated for constitutional purposes ‘as if stopped at the border.’ ”). As previously noted, in cases like Petitioner's, the “certain other alien” status creates a construct wherein courts are to ignore a petitioner's lengthy residence in the United States. See Gonzales-Garcia, 513 F. Supp. 3d at 331, 333; Poonjani, 319 F. Supp. 3d at 648.¹⁰

Because the statutory language clearly does not entitle aliens detained under Section 1225(b) to bond hearings, and Mezei and Thuraissigiam hold that the Constitution requires nothing further for aliens on the threshold of entry, this Court concludes that Petitioner's due process rights have not been violated by his ongoing detention. Petitioner does not have a constitutional right to any additional procedure, and the petition must be denied.

IV. MOTION FOR COUNSEL

Lastly, the Court turns to Petitioner's request for appointment of counsel. Dkt. 13. For all the reasons above, the Court has determined that the petition does not have merit and must be dismissed. Accordingly, the Court concludes the motion to appoint counsel is moot.¹¹

CONCLUSION

For the above reasons, the Court GRANTS the Government's motion to dismiss (Dkt. 4). The petition (Dkt. 1) is dismissed. Petitioner's motion for appointment of counsel is denied as moot (Dkt. 3).

The Clerk of Court is directed to close this case.

SO ORDERED.

FOOTNOTES

2.   Page numbers refer to the CM/ECF pagination at the top of the page.

3.   The Government's submissions offer no information about what occurred between the October 13, 2012 Notice to Appear and the immigration judge's decision ordering removal dated February 24, 2023. The Court relies on Petitioner's submissions and attached documents to fill in the gaps, particularly regarding his criminal and ongoing immigration proceedings.

4.   The exact date of Petitioner's conviction is unclear. See Dkt. 6 at 3 (conviction date of May 6, 2022); id. at 9 (conviction date of July 12, 2019).

5.   The petition and the ICE detention decision included with Petitioner's response state that Petitioner was ordered removed on February 26, 2023. Dkt. 1 at 16; Dkt. 6 at 9.

6.   By contrast, Section 1226 generally governs the process of arresting and detaining aliens who are already present in the United States pending their removal. Jennings, 583 U.S. at 288, 138 S.Ct. 830.

7.   Specifically, Petitioner's current detention appears to be authorized under Section 1225(b)(1)(B)(iii)(IV), as he has received a final administrative determination of his asylum application but has not yet been removed. Alternatively, given his pending Second Circuit petition, Petitioner is still awaiting a final judicial determination on his asylum and related claims—still subjecting him to the mandatory detention provision of Section 1225(b)(1)(B)(iii)(IV).

8.   The Government did not provide details or documentation to aid this Court's understanding of Petitioner's immigration case and order of removal dated February 24, 2023. Given the lengthy intervening period, which included noteworthy events like his conviction and subsequent incarceration, this Court understands Petitioner's confusion regarding the statute authorizing his detention. In light of this, the Court has reviewed the docket and briefs in Petitioner's pending case with the Second Circuit as well as the immigration judge's decision ordering removal. That review confirms that Petitioner conceded his removability as an inadmissible alien and that Petitioner unsuccessfully sought relief in the form of asylum, statutory withholding of removal, and protection under the Convention Against Torture. Thus, this Court has no basis to conclude that Petitioner was subject to removal pursuant to any statute except Section 1225(b).

9.   Mezei involved a noncitizen who, after residing in the United States for twenty-plus years, traveled to Europe for about nineteenth months. 345 U.S. at 208-09, 73 S.Ct. 625. When he attempted to reenter the United States at Ellis Island, he was denied admission for security reasons. Id. He remained detained on Ellis Island for months because no other country would accept him. Id. He filed a series of habeas corpus proceedings to challenge his detention on Ellis Island. Id. Eventually, the district court agreed that his detention was excessive and granted his petition. The Supreme Court ultimately reversed and found that his prolonged detention without a hearing did not make his confinement unconstitutional. Id. at 215-16, 73 S.Ct. 625.

10.   The fact that Petitioner passed a credible fear interview also does not alter his status as an “inadmissible alien on the threshold of initial entry.” See Gonzales Garcia, 513 F. Supp. 3d at 335-36 (petitioner having passed a credible fear interview, as in Poonjani, did not alter his status as an inadmissible alien on the threshold of initial entry).

11.   The CJA provides in relevant part that, “[w]henever the United States magistrate or the court determines that the interests of justice so require, representation may be provided for any financially eligible person who ․ is seeking relief under section 2241, 2254, or 2255 of title 28.” 18 U.S.C. § 3006A(a)(2)(B). Thus, the three relevant factors under Section 3006A(2)(B) are: (1) the applicant has brought an action for relief under one of the federal habeas statutes, 28 U.S.C. §§ 2241, 2254, or 2255; (2) the applicant is financially eligible; and (3) the interests of justice require appointment of counsel. Id. In assessing the last of these factors, courts in this circuit have considered “the petitioner's likelihood of success on the merits, the complexity of the legal issues raised by the petition, and the petitioner's ability to investigate and present the case.” McDonald v. Feeley, 535 F. Supp. 3d 128, 141 (W.D.N.Y. 2021) (citation omitted).

JOHN L. SINATRA, JR., UNITED STATES DISTRICT JUDGE