FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
YOLANY PADILLA; IBIS No. 24-2801
GUZMAN; BLANCA ORANTES;
D.C. No.
BALTAZAR VASQUEZ,
2:18-cv-00928-MJP
Plaintiffs - Appellees,
v. OPINION
UNITED STATES IMMIGRATION
AND CUSTOMS ENFORCEMENT;
UNITED STATES DEPARTMENT
OF HOMELAND SECURITY;
UNITED STATES CUSTOMS AND
BORDER PROTECTION; UNITED
STATES CITIZENSHIP AND
IMMIGRATION SERVICES;
DAVID J. VENTURELLA;
RODNEY S. SCOTT; JOSEPH B.
EDLOW; TODD BLANCHE,
Attorney General; EXECUTIVE
OFFICE FOR IMMIGRATION
REVIEW; MARKWAYNE
MULLIN; CAMMILLA
WAMSLEY; BRUCE SCOTT;
JAMES JANECKA,
Defendants-Appellants.
2 PADILLA V. U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT
Appeal from the United States District Court
for the Western District of Washington
Marsha J. Pechman, District Judge, Presiding
Argued and Submitted May 21, 2025
San Francisco, California
Filed September 21, 2026
Before: Marsha S. Berzon, Michelle T. Friedland, and
Salvador Mendoza, Jr., Circuit Judges.
Opinion by Judge Berzon;
Concurrence by Judge Friedland.
SUMMARY*
Immigration
Affirming, on interlocutory appeal, the district court’s
denial of the government’s motion to dismiss in a case in which Plaintiffs challenged their mandatory detention under 8 U.S.C. § 1225(b)(1)(B)(ii), the panel held that the district court correctly concluded that (1) it had jurisdiction over this dispute and (2) Department of Homeland Security v.
Thuraissigiam, 591 U.S. 103 (2020), did not bar Plaintiffs’ due process claim.
*
This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.
PADILLA V. U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT 3
Plaintiffs are a certified class of asylum seekers who
entered the United States without admission or parole, were screened for expedited removal, and found to have a credible fear of persecution or torture (the “class”). They were
placed in regular removal proceedings. However, because
they were initially screened for expedited removal, they are subject to mandatory detention under 8 U.S.C.
§ 1225(b)(1)(B)(ii), which, as interpreted in Jennings v. Rodriguez, 583 U.S. 281 (2018), provides no opportunity for bond hearings. The class asserted that the lack of hearings violates the Fifth Amendment’s Due Process Clause. The
district court denied the government’s motion to dismiss and certified two questions for appeal.
The first certified question was whether the district court lacked jurisdiction under 8 U.S.C. § 1252(a)(2)(A). The
panel held that none of the four provisions of
§ 1252(a)(2)(A) precluded jurisdiction over the class’s due process claim. The panel concluded that subsections (i) and (iii) were plainly inapplicable: subsection (i) because the class did not challenge “any individual determination” or “cause or claim” concerning “the implementation or
operation of an order of removal,” and subsection
(iii) because the class did not challenge the application of the expedited removal statute to “individual aliens.” Subsection (ii) did not apply because the due process claim did not
challenge the government’s decision to detain in any
individual, “given case.” Rather, it challenged the
constitutionality of § 1225(b)(1)(B)(ii). Subsection (iv) also did not apply because the class challenged the statute itself, not “procedures and policies” adopted “to implement the
provisions” of the expedited removal statute. Further, the panel concluded that § 1252(e)(3) did not preclude
jurisdiction because it is an exception to the bars of 8
4 PADILLA V. U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT
§ 1252(a)(2)(A), not an independent jurisdiction-limiting provision.
The second certified question was whether the class’s
due process claim was barred by Thuraissigiam, in which the Supreme Court held that a noncitizen apprehended 25 yards within the United States border was “an alien at the threshold of initial entry” and therefore had no due process rights apart from those provided by statute. The government argued
that, after Thuraissigiam, all noncitizens who entered
unlawfully have no procedural due process rights beyond
those conferred by statute. And, as a result of the January 2025 expansion of the expedited removal authority and of
Jennings, inadmissible noncitizens apprehended anywhere
in the United States within two years of entry and transferred from expedited to regular removal proceedings after
showing a credible fear must be detained for as long as those proceedings are pending. Thus, the government argued that the class’s due process claim necessarily failed because class members have no due process rights regarding their
detention other than those provided by statute, and the statute does not provide for bond hearings.
The panel rejected this reading of Thuraissigiam. Thuraissigiam did not trample decades of
precedent establishing that noncitizens within the territory of United States, legally or not, generally are within the
protections of the Due Process Clause. There is a narrow
exception to that territoriality rule: the “entry fiction,” under which noncitizens seeking admission at a point of entry may be physically allowed into the country for a determination on admissibility, but are treated as if stopped at the border with respect to certain legal rights. Because such individuals remain “on the threshold of initial entry,” their due process rights regarding admission are limited to their statutory
PADILLA V. U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT 5
rights. The entry fiction traditionally applied only to
individuals at a point of entry but, in Thuraissigiam, the Court extended it a tiny bit—to an individual apprehended immediately after entry within 25 yards of the border. Since Thuraissigiam, this court has applied the entry fiction to other individuals apprehended immediately after entry.
The panel concluded that the class is fundamentally
differently situated from the individuals in Thuraissigiam and its progeny. Because the class is limited to those who entered without inspection, it excludes individuals
encountered at a point of entry. Moreover, the panel
reasoned that Thuraissigiam’s careful limitation of its due process holding to those apprehended on the “threshold of initial entry” was not an invitation to remove constitutional due process protections from everyone who meets the
current statutory criteria for expedited removal—or as it may be expanded. Thuraissigiam does not suggest that the entry fiction has swallowed up the bedrock principle that the Due Process Clause applies to all persons, including those
illegally present in this country. Thus, the panel concluded that, because the class here includes noncitizens
apprehended far beyond the threshold of entry, it is made up largely of individuals who, before and after Thuraissigiam, have full procedural due process rights under the Fifth
Amendment.
In Section II.B.2, the panel wrote that its conclusion was reinforced by the consideration that the class’s due process claim concerns detention—not, as in Thuraissigiam,
admission to the country. Unlike the political branches’
plenary power over admission, the principle that the
government cannot arbitrarily detain people, including
noncitizens, has been a central tenet of British and American legal traditions since the thirteenth century. Thuraissigiam 6 PADILLA V. U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT
was an admission, not a detention, case. For that reason, as well as because it was specifically limited to noncitizens at the threshold of initial entry, it had no application
here. Noncitizens who arrive illegally and are found away from the border well after arrival are protected from arbitrary detention in violation of the Due Process Clause.
Concurring, Judge Friedland joined all of the majority’s
opinion except for Section II.B.2. She agreed that
Thuraissigiam’s holding covers only those applicants at the threshold of initial entry and, given the broad class
definition, that conclusion was sufficient to resolve the certified questions in this appeal. Judge Friedland therefore refrain from deciding anything further.
COUNSEL
Matt Adams (argued), Leila Kang, Glenda M. Aldana
Madrid, and Aaron Korthuis, Northwest Immigrant Rights
Project, Seattle, Washington; Judy Rabinovitz and Anand
Balakrishnan, American Civil Liberties Union Foundation,
New York, New York; Michael K.T. Tan and Stephen B.
Kang, American Civil Liberties Union Foundation, San
Francisco, California; Emma C. Winger, American
Immigration Council, Washington D.C.; Kristin MacleodBall and Trina A. Realmuto, National Immigration
Litigation Alliance, Brookline, Massachusetts; for PlaintiffAppellees.
David Kim (argued) and Lauren C. Bingham, Senior
Litigation Counsel; Bichngoc T. Do and Alanna T. Duong,
Trial Attorneys; Erez R. Reuveni and Sarah S. Wilson,
Assistant Directors; William C. Peachey and David M.
PADILLA V. U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT 7
McConnell, Directors; Office of Immigration Litigation;
Brian M. Boynton, Principal Deputy Assistant Attorney
General; Civil Division, United States Department of
Justice, Washington, D.C.; Defendants-Appellants.
OPINION
BERZON, Circuit Judge:
Plaintiffs are a certified class of asylum seekers who
entered the United States without being admitted or paroled, were screened for expedited removal, and were found to
have a credible fear of persecution or torture. They were then placed in regular removal proceedings to adjudicate their asylum claims. Because they were initially screened for
expedited removal, they are subject to mandatory detention under 8 U.S.C. § 1225(b)(1)(B)(ii), as interpreted in
Jennings v. Rodriguez, 583 U.S. 281, 297–99 (2018). That
section, Jennings held, provides no opportunity for a bond hearing or any comparable individualized procedure
(hereafter “bond hearing”) requiring the government to
justify the necessity of their detention. Plaintiffs (“the bond hearing class” or “the class”) assert that the lack of
individualized bond hearings to assess the necessity of their continued detention violates the Fifth Amendment’s Due
Process Clause.
Defendants (“the government”) moved to dismiss on the
grounds that (1) the district court lacked subject matter jurisdiction under 8 U.S.C. § 1252(a)(2)(A), which deprives courts of jurisdiction over certain issues related to expedited removal, and (2) the bond hearing class’s due process claim 8 PADILLA V. U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT
is precluded by the Supreme Court’s recent decision in
Department of Homeland Security v. Thuraissigiam, 591
U.S. 103, 107 (2020). The district court denied the motion to dismiss on each ground but certified two issues for
interlocutory appeal.
This interlocutory appeal presents two questions:
(1) whether the district court lacked jurisdiction under 8 U.S.C. § 1252(a)(2)(A) and (2) whether the bond hearing
class’s due process challenge is barred by Thuraissigiam. Because we conclude that the district court had jurisdiction and Thuraissigiam does not decide the outcome in this case, we affirm on the certified issues.
I. Background
A. Expedited Removal Background
Removal of noncitizens usually occurs through the
procedures set forth in 8 U.S.C. § 1229a. That provision
includes various procedural safeguards—preeminently, an
opportunity for an evidentiary hearing before an
immigration judge (“IJ”) and a right to appeal to the Board of Immigration Appeals (“BIA”). See 8 U.S.C. § 1229a.
Under certain circumstances though, the government may
pursue removal through a different, markedly less
procedurally robust pathway known as “expedited removal.”
Expedited removal applies to two classes of inadmissible
noncitizens. See 8 C.F.R. § 235.3(b)(1). First, it applies to “arriving” noncitizens. 8 U.S.C. § 1225(b)(1)(A)(i).
Arriving noncitizens are those “applicant[s] for admission coming or attempting to come into the United States at a
port-of-entry.” 8 C.F.R. § 1.2. Second, expedited removal applies to “certain other” noncitizens. 8 U.S.C.
§ 1225(b)(1)(A)(iii). The statute authorizes the Secretary of
PADILLA V. U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT 9
the Department of Homeland Security (“DHS”) to designate
as “certain other” noncitizens any inadmissible noncitizens in the United States who have not been admitted or paroled and cannot show that they have been continuously present
for the past two years.1 Id.
Previously, DHS limited the “certain other” noncitizen
designation to individuals apprehended within 100 miles of the border who could not show they had been continuously
physically present in the United States for the 14 days prior to their apprehension. See Designating Aliens for Expedited Removal, 69 Fed. Reg. 48877 (Aug. 11, 2004). In January
2025, DHS significantly expanded the “certain other”
category. Now, any inadmissible noncitizen apprehended
anywhere in the United States within two years of entry is eligible for expedited removal.2 See Designating Aliens for Expedited Removal, 90 Fed. Reg. 8139 (Jan. 24, 2025).
If an immigration officer determines that an individual
meets the criteria for expedited removal, the officer may place them in either expedited or full removal proceedings. See Matter of E-R-M- & L-R-M-, 25 I. & N. Dec. 520, 523
(B.I.A. 2011). In expedited proceedings, “the officer shall order the alien removed from the United States without
further hearing or review unless the alien indicates either an
1
Although the statute refers to the Attorney General, this power has since been delegated to the DHS Secretary. See 6 U.S.C. § 202(3); 8 C.F.R. § 235.3(b)(1)(ii).
2
In 2019, the DHS Secretary issued a notice with a similarly expansive expedited removal designation. See Designating Aliens for Expedited Removal, 84 Fed. Reg. 35409 (July 23, 2019). That notice was rescinded several years later, and the prior, more limited expedited removal designation restored. See Rescission of the Notice of July 23, 2019, Designating Aliens for Expedited Removal, 87 Fed. Reg. 16022 (Mar. 21, 2022).
10 PADILLA V. U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT
intention to apply for asylum . . . or a fear of persecution.” 8 U.S.C. § 1225(b)(1)(A)(i). If a noncitizen placed in
expedited removal proceedings indicates an intention to
apply for asylum or a fear of persecution, “the officer shall refer the alien for an interview by an asylum officer” to determine whether they have a credible fear of persecution. Id. § 1225(b)(1)(A)(ii). The same procedures apply to
individuals who assert a fear of torture or return to their country rather than persecution. See 8 C.F.R. §§ 235.3(b)(4), 208.30(b). “If the asylum officer finds an applicant’s
asserted fear to be credible, the applicant will receive ‘full consideration’ of his . . . claim in a standard removal
hearing.” Thuraissigiam, 591 U.S. at 110 (footnote omitted) (quoting 8 C.F.R. § 208.30(f)); see also Matter of M-S-, 27 I. & N. Dec. 509, 509 (A.G. 2019).
Generally, a noncitizen in regular removal proceedings
may be arrested and detained pending a decision on their
removal from the United States. 3 8 U.S.C. § 1226(a).
Individuals detained under § 1226(a) may request a hearing to determine whether they are eligible to be released on
bond. See 8 U.S.C. § 1226(a)(2); Avilez, 69 F.4th at 530. A different detention provision applies to individuals screened for expedited removal but transferred to regular removal
proceedings after a positive credible fear determination. See 8 U.S.C. § 1225(b)(1)(B)(ii). That section states that,
following the positive credible fear determination, “the alien shall be detained for further consideration of the application for asylum.” Id.
3
For those who meet the “criminal aliens” criteria, detention is governed by 8 U.S.C. § 1226(c), not § 1226(a), and is mandatory. See Avilez v. Garland, 69 F.4th 525, 529–35 (9th Cir. 2023).
PADILLA V. U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT 11
The BIA previously took the view that, like other
noncitizens in full removal proceedings, noncitizens in the “certain other” expedited removal category who had been
transferred to full removal proceedings after a positive
credible fear finding were entitled to bond hearings. See Matter of X-K-, 23 I. & N. Dec. 731 (BIA 2005). Although
“arriving” noncitizens were ineligible for release on bond under 8 C.F.R. § 1003.19(h)(2)(i)(B), the BIA reasoned that there was no comparable provision precluding bond hearings for “certain other” noncitizens. Id. at 734–35.
In Jennings v. Rodriguez, the Supreme Court reached the
opposite conclusion. 583 U.S. at 299. The Court interpreted § 1225(b)(1)(B)(ii) to mandate detention without a bond
hearing “until immigration officers have finished
‘consider[ing]’ the application for asylum.” Id. (quoting § 1225(b)(1)(B)(ii)). Jennings explained that the statutorily authorized parole “for urgent humanitarian reasons or
significant public benefit” was the sole exception to the mandatory detention provision. Id. at 300 (quoting 8 U.S.C. § 1182(d)(5)(A)). The Attorney General accordingly
overruled Matter of X-K-, recognizing that the Court had
held in Jennings that the statute requires detention without a bond hearing until the asylum claim is adjudicated. See
Matter of M-S-, 27 I. & N. Dec. at 510.
The upshot: As a result of the January 2025 expansion of
the expedited removal authority and of Jennings, as applied by Matter of M-S-, inadmissible noncitizens apprehended
anywhere in the United States within two years of entry and transferred from expedited to regular removal proceedings after showing a credible fear of persecution or torture must be detained for as long as those proceedings are pending. 12 PADILLA V. U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT
B. Procedural Background
This litigation has been through several iterations. When this suit was filed in 2018, Matter of X-K- was still in effect, so the plaintiffs were entitled to bond hearings. At that stage, they contested the timeframe for obtaining a bond hearing after requesting one, as well as the procedures applicable to the hearing. After filing their second amended complaint, the plaintiffs sought class certification. In March 2019, the district court certified a nationwide bond hearing class, defined as follows:
All detained asylum seekers who entered the
United States without inspection, were
initially subject to expedited removal
proceedings under 8 U.S.C. § 1225(b), were
determined to have a credible fear of
persecution, but are not provided a bond
hearing with a verbatim transcript or
recording of the hearing within seven days of
requesting a bond hearing.4
Shortly thereafter, the district court entered a preliminary injunction requiring the government to provide members of the bond hearing class with a bond hearing within seven days of a request for one.
Less than two weeks later, the Attorney General issued
Matter of M-S-, applying the Supreme Court’s interpretation of § 1225(b)(1)(B)(ii) in Jennings and overruling Matter of X-K-. As the bond hearing class was no longer entitled under the statute to a bond hearing, the plaintiffs filed a third
4
This definition was later amended to include those found to have a credible fear of torture, as well as of persecution.
PADILLA V. U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT 13
amended complaint, alleging that the denial of bond hearings to those individuals transferred to full removal proceedings after a credible fear finding violates the Due Process Clause. The class also moved for a preliminary injunction, arguing that class members were constitutionally entitled to a bond hearing pending resolution of their applications for asylum or relief under the Convention Against Torture (“CAT”), and that § 1225(b)(1)(B)(ii), as interpreted in Jennings and
Matter of M-S-, likely violates the Constitution. The district court granted the preliminary injunction requested, replacing the earlier one.
The government appealed the preliminary injunction
ruling. This court concluded that the bond hearing class had shown that it was likely to succeed on the merits and
determined that the district court had not abused its
discretion in issuing a preliminary injunction. See Padilla v. Immigr. & Customs Enf’t, 953 F.3d 1134, 1141–48 (9th Cir. 2020). The court simultaneously vacated the portion of the preliminary injunction requiring a hearing after only seven days and remanded to the district court to consider the
appropriate timing and procedures for the bond hearings. Id. at 1148, 1152.
The government filed a writ of certiorari, which the
Supreme Court granted. The Court then vacated our opinion and remanded for further consideration in light of
Department of Homeland Security v. Thuraissigiam, 591
U.S. 103 (2020). See Immigr. & Customs Enf’t v. Padilla,
141 S. Ct. 1041 (2021). This court, in turn, remanded to the district court to consider the effect of Thuraissigiam on the class’s claims. See Padilla v. Immigr. & Customs Enf’t, 41 F.4th 1194, 1195 (9th Cir. 2022). Additionally, we instructed the district court to vacate the preliminary injunction,
because another intervening Supreme Court case, Garland
14 PADILLA V. U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT
v. Aleman Gonzalez, 596 U.S. 543 (2022), interpreted 8
U.S.C. § 1252(f) to deprive courts of jurisdiction to issue class-wide injunctions affecting the “operation” of certain immigration provisions. Padilla, 41 F.4th at 1195.
On remand, the district court vacated the injunction. The bond hearing class filed a fourth amended complaint, this time seeking declaratory rather than injunctive relief. The most recent complaint alleges that “class members continue to face lengthy detention without independent review or
timely procedures to guarantee that their deprivation of
liberty serves a valid purpose” and that “Defendants violate the Fifth Amendment’s Due Process Clause by failing to
provide prompt individualized custody hearings with
adequate safeguards.”
The government moved to dismiss, arguing that the court
did not have subject matter jurisdiction under 8 U.S.C.
§§ 1252(a)(2)(A) and (e)(3); the bond hearing class’s due process claim was barred by Thuraissigiam; and the class
had not adequately alleged the existence of a due process violation. The district court denied the motion, concluding that the jurisdictional provisions did not apply,
Thuraissigiam did not apply to the class’s due process claim, and the class continued to allege a viable due process claim.
The district court subsequently granted the government’s
motion to certify for interlocutory appeal the order denying dismissal, and a Ninth Circuit motions panel approved the petition for permission to appeal.
II. Analysis
Two questions have been certified for interlocutory
appeal: (1) whether “the Court has subject matter
jurisdiction over Plaintiffs’ claims” and (2) whether
PADILLA V. U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT 15
“Plaintiffs may pursue constitutional due process claims
regarding bond hearings.”
The government raises additional arguments concerning
the merits of the bond hearing class’s due process claim. Those arguments are outside the scope of the questions
certified for interlocutory appeal. Although an “appellate court may address any issue fairly included within the
certified order,” even one not contained in the certified questions, see Yamaha Motor Corp. v. Calhoun, 516 U.S.
199, 205 (1996), there is no obligation to do so, see, e.g., Reese v. BP Expl. (Alaska) Inc., 643 F.3d 681, 684 (9th Cir. 2011); Beaver v. Tarsadia Hotels, 816 F.3d 1170, 1175 n.2 (9th Cir. 2016), overruled on other grounds by Ratha v.
Rubicon Res. LLC, 168 F.4th 541 (9th Cir. 2026).
In its interlocutory appeal order, the district court
explained that “[t]he jurisdictional issues presented appear to be novel and unaddressed by the Ninth Circuit or the
Supreme Court.” It likewise concluded that the second
question presented a “novel legal issue[]” and that “fairminded jurists might disagree with the Court’s determination that the decision in Department of Homeland Security v.
Thuraissigiam does not bar Plaintiffs’ due process claims.” There was no determination that any of the other issues
addressed in the district court’s order presented legal
questions meriting interlocutory review. Nor do we see any reason why those issues should be addressed in this
interlocutory posture. As a result, we decline the
government’s invitation to go beyond the questions certified by the district court and so address only those two issues.
A. Subject Matter Jurisdiction
The government first asserts that the court lacks subject matter jurisdiction under 8 U.S.C. § 1252(a)(2)(A). That
16 PADILLA V. U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT
provision states that “no court shall have jurisdiction to review” the following:
(i) except as provided in subsection (e), any
individual determination or to entertain any
other cause or claim arising from or relating
to the implementation or operation of an
order of removal pursuant to section
1225(b)(1) of this title,
(ii) except as provided in subsection (e), a
decision by the Attorney General to invoke
the provisions of such section,
(iii) the application of such section to
individual aliens, including the determination
made under section 1225(b)(1)(B) of this
title, or
(iv) except as provided in subsection (e),
procedures and policies adopted by the
Attorney General to implement the
provisions of section 1225(b)(1) of this title.
8 U.S.C. § 1252(a)(2)(A).
These provisions cross reference § 1225(b)(1), which
contains various rules governing expedited removal. Among other matters, § 1225(b)(1) describes which individuals may be subject to expedited removal, procedures applicable to asylum claims and credible fear interviews, and rules for when an order of expedited removal may be issued. It also contains the detention provision applicable to the bond
hearing class, which states, “If the officer determines at the time of the interview that an alien has a credible fear of persecution . . . , the alien shall be detained for further
PADILLA V. U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT 17
consideration of the application for asylum.” Id. § 1225(b)(1)(B)(ii).
Three of the four jurisdiction-stripping provisions in
§ 1252(a)(2)(A) provide for an exception for cases described in subsection (e). As relevant here, subsection (e) states:
Judicial review of determinations under
section 1225(b) of this title and its
implementation is available in an action
instituted in the United States District Court
for the District of Columbia, but shall be
limited to determinations of–
(i) whether such section, or any regulation
issued to implement such section, is
constitutional; or
(ii) whether such a regulation, or a written
policy directive, written policy guideline, or
written procedure issued by or under the
authority of the Attorney General to
implement such section, is not consistent
with applicable provisions of this subchapter
or is otherwise in violation of law.
Id. § 1252(e)(3)(A). Any action brought under this provision “must be filed no later than 60 days after the date the
challenged section, regulation, directive, guideline, or
procedure . . . is first implemented.” Id. § 1252(e)(3)(B).
The government argues that the bond hearing class’s due
process claim is functionally a challenge to Matter of M-S-, the post-Jennings decision recognizing that, under the
Supreme Court’s interpretation in Jennings, § 1225(b)(1)(B)(ii) requires detention without a bond
18 PADILLA V. U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT
hearing for individuals transferred from expedited removal to full removal proceedings after a positive credible fear determination. See Matter of M-S-, 27 I. & N. Dec. at 510. Matter of M-S-, the government contends, is a “polic[y]
adopted by the Attorney General to implement the
provisions of section 1225(b)(1),” so the class’s due process claim is barred by § 1252(a)(2)(A)(iv).5
Alternatively, the government asserts that § 1252(e)(3)
precludes the bond hearing class from bringing its claim
outside of the United States District Court for the District of Columbia. It maintains that Matter of M-S- “implements”
1225(b)(1)(B)(ii), so the class’s due process claim involves “[j]udicial review of . . . [§ 1225(b)’s] implementation.” 8 U.S.C. § 1252(e)(3).
We address each argument in turn.
1. Section 1252(a)(2)(A)
None of the four provisions in § 1252(a)(2)(A) is
implicated by the bond hearing class’s due process challenge to its members’ detention.
Romanettes (i) and (iii) are plainly inapplicable here.
The class does not challenge any “individual determination” or assert a “cause or claim” concerning “the implementation or operation of an order of removal.” 8 U.S.C.
§ 1252(a)(2)(A)(i). By definition, there has been no order of removal for any class member; each has an asylum or CAT
claim that remains undecided. The class also does not
challenge “the application of [§ 1225(b)(1)] to individual aliens,” as it does not ask the court to determine whether the
5
The government also suggests that the other subsections of § 1252(a)(2)(A) potentially bar the bond hearing class’s claim. See infra, pp. [18−19].
PADILLA V. U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT 19
government properly applied § 1225(b)(1)(B)(ii) to any
particular individual. 8 U.S.C. § 1252(a)(2)(A)(iii).
Nor is the class’s claim precluded by subsection (ii),
which “bars judicial review of ‘a decision by the Attorney General to invoke the provisions of [§ 1225(b)(1)]’ in a
given case.” Mendoza-Linares v. Garland, 51 F.4th 1146,
1154 (9th Cir. 2022) (emphasis omitted) (quoting 8 U.S.C. § 1252(a)(2)(A)(ii)). Again, the class’s due process claim does not challenge the government’s decision to detain in any individual, “given case.” Rather, class members
challenge the constitutionality of § 1225(b)(1)(B)(ii), which Jennings held requires mandatory detention. Because
Jennings interpreted § 1225(b)(1)(B)(ii) as making
detention mandatory, the class’s challenge is not to any
decision or determination in “a given case,” but rather to the constitutionality of a statute. Subsection (ii) does not apply.
The final subsection, romanette (iv), addresses review of “procedures and policies adopted by the Attorney General to implement the provisions of section 1225(b)(1).” 8 U.S.C. § 1252(a)(2)(A)(iv). The government contends that this
provision governs because the class’s due process claim
implicates Matter of M-S-. That opinion, the government
asserts, is a policy implementing § 1225(b)(1)(B)(ii)’s
detention mandate. But the class’s due process claim is, after Jennings, necessarily a challenge to § 1225(b)(1)(B)(ii)
itself.
In Jennings, the Court assessed whether
§ 1225(b)(1)(B)(ii), read in conjunction with § 1226(a),
requires the government to provide a bond hearing to
individuals detained under that provision. 583 U.S. at 296– 98. The Court determined that it does not. It held that
§ 1225(b)(1)(B)(ii) “mandate[s] detention” until asylum
20 PADILLA V. U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT
proceedings “have concluded.” Id. at 297. The Court
explained that the statute’s provision authorizing temporary parole “for urgent humanitarian reasons or significant public benefit” is the sole exception to the mandatory detention required by the statute. Id. at 300 (quoting 8 U.S.C.
§ 1182(d)(5)(A)). Because “[t]hat express exception to
detention implies that there are no other circumstances under which aliens detained under § 1225(b) may be released,” the Court determined that § 1225(b)(1)(B)(ii) does not allow for release and so no bond hearings need be held. Id. (emphasis omitted).
The Attorney General subsequently referred Matter of
M-S- to himself to address “[w]hether Matter of XK- . . . should be overruled in light of Jennings v.
Rodriguez.” Matter of M-S-, 27 I. & N. Dec. 476, 476 (A.G. 2018). Matter of M-S-, 27 I. & N. Dec. 509, 510 (A.G. 2019) concluded that “unless paroled, an alien must be detained until his asylum claim is adjudicated” pursuant to
§ 1225(b)(1)(B)(ii), precisely what Jennings had already
interpreted the detention statute to require. Matter of M-Sthus simply recognized, as required by Jennings, that the statute did not permit noncitizens detained under
§ 1225(b)(1)(B)(ii) to access bond hearings. Matter of M-Sthen went on to overrule Matter of X-K-. Matter of M-S-, 27 I. & N. Dec. at 510.
The bond hearing class asserts that “Defendants violate
the Fifth Amendment’s Due Process Clause by failing to
provide prompt individualized custody hearings with
adequate safeguards.” As interpreted by Jennings,
§ 1225(b)(1)(B)(ii) does not allow for such hearings.
Plaintiffs’ due process claim is thus a constitutional
challenge to the statutory detention requirement in
PADILLA V. U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT 21
§ 1225(b)(1)(B)(ii).6 Section 1252(a)(2)(A)(iv) does not bar judicial review of the validity of section 1225(b)(1). It bars review only of “procedures and policies adopted . . . to
implement” that section. Id. § 1252(a)(2)(A)(iv). So
subsection (iv), like the other subsections of
§ 1252(a)(2)(A), does not preclude the bond hearing class’s claim. Id.
Any remaining doubt that § 1252(a)(2)(A) does not
apply to the class’s claim is dispelled by the principle that “where Congress intends to preclude judicial review of
constitutional claims its intent to do so must be clear.” Webster v. Doe, 486 U.S. 592, 603 (1988). “This rule of
statutory construction is necessary to avoid ‘the serious constitutional question that would arise if we construed [a statute] to deny a judicial forum for constitutional claims.’” Ctr. for Biological Diversity v. Bernhardt, 946 F.3d 553, 561 (9th Cir. 2019) (quoting Bowen v. Mich. Acad. of Fam.
Physicians, 476 U.S. 667, 681 n.12 (1986)). Section
1252(a)(2)(A) provides no indication that Congress intended to limit judicial review of the constitutional claim at issue here.
Our conclusion that § 1252(a)(2)(A) does not bar the
bond hearing class’s challenge is consistent with that
6
Even if Plaintiffs’ due process claim were conceived of as both a challenge to the constitutionality of § 1225(b)(1)(B)(ii) and to Matter of M-S-, and we accepted the government’s assumption that an Attorney General’s decisions in precedential BIA cases can constitute “procedures” or “policies” to implement § 1225(b)(1)—an issue we need not reach—the result would be the same: the constitutional challenge to the statute would proceed in the district court. See e.g., Nat’l Institutes of Health v. Am. Pub. Health Ass’n, 145 S. Ct. 2658, 2660 (2025) (Barrett, J., concurring) (requiring splitting of claim between two forums, each of which had jurisdiction over an aspect of the claim).
22 PADILLA V. U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT
section’s purpose. As explained in the House Judiciary
Committee Report on the legislation creating expedited
removal, Congress was concerned with making “[e]xpedited
removal . . . subject to strictly limited judicial review.” H.R. Rep. No. 104-469, at 12 (1996). The statute “limits
administrative and judicial review of expedited removal
proceedings” “[i]n order to streamline the removal process.” United States v. Barajas-Alvarado, 655 F.3d 1077, 1081 (9th Cir. 2011); see also I.M. v. U.S. Customs & Border Prot., 67 F.4th 436, 437–38 (D.C. Cir. 2023). If courts could review all determinations made during expedited removal
proceedings, then “the process would no longer be
expedited.” Thuraissigiam, 591 U.S. at 113. Accordingly,
§ 1252(a)(2)(A)’s goal is to ensure that expedited removal proceedings remain expedited.
Limiting judicial review of the constitutionality of
mandatory detention under § 1225(b)(1)(B)(ii) would in no way advance that goal. If a noncitizen screened for expedited removal obtains a positive credible fear finding, then they are no longer subject to the expedited removal process.
Instead “the applicant will receive ‘full consideration’ of his asylum claim in a standard removal hearing.”
Thuraissigiam, 591 U.S. at 110 (quoting 8 C.F.R.
§ 208.30(f)).7 As a result, judicial review of the provision governing detention after a finding of credible fear cannot possibly be said to delay—or impact in any way—expedited
removal, as the detained individual is no longer in expedited
7
See 8 U.S.C. § 1225(b)(1)(B)(ii) (mandating that a noncitizen with a positive credible fear finding obtain “further consideration of the application for asylum”); H.R. Rep. No. 104-469, at 158 (1996) (“If the alien meets this [credible fear] threshold, the alien is permitted to remain in the U.S. to receive a full adjudication of the asylum claim—the same as any other alien in the U.S.”).
PADILLA V. U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT 23
removal. And, in any event, the length of detention and the length of the removal proceedings are entirely discrete
matters; whether an individual in removal proceedings is
detained or not, the proceedings will end when they end, not earlier or later.
In short, § 1252(a)(2)(A) does not preclude review of the bond hearing class’s due process claim.
2. Section 1252(e)(3)
Nor does § 1252(e)(3) preclude jurisdiction here. As
discussed, § 1252(a)(2)(A)(i), (ii), and (iv) strip the court of jurisdiction over various issues related to expedited removal “except as provided in subsection (e).” Section 1252(e)(3), in turn, states that “[j]udicial review of determinations under section 1225(b) of this title and its implementation is
available in an action instituted in the United States District Court for the District of Columbia” but that such review is limited to only certain issues and must be brought within 60 days after “the challenged section, regulation, directive, guideline, or procedure . . . is first implemented.” 8 U.S.C. § 1252(e)(3)(A)–(B).
As the statutory scheme indicates, § 1252(e)(3) is “an
exception to the jurisdictional bars in § [1252](a)(2)(A),” Mendoza-Linares, 51 F.4th at 1155–56 (emphasis added),
not an independent jurisdiction-limiting provision. Section 1252(e)(3) preserves the D.C. District Court’s jurisdiction over a subset of claims otherwise barred by § 1252(a)(2)(A). It does not preclude other courts from asserting available jurisdiction over challenges where § 1252(a)(2)(A) does not 24 PADILLA V. U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT
apply.8 Nothing in the text of § 1252(e)(3) indicates that it is meant to operate as an independent jurisdiction-limiting provision. Rather, the statutory scheme confirms that
§ 1252(e)(3) grants jurisdiction where otherwise
§ 1252(a)(2)(A), standing alone, would preclude it.
Consistent with this understanding, the D.C. Circuit has
described § 1252(e)(3) as “preserv[ing] the district court’s jurisdiction under 28 U.S.C. § 1331” where jurisdiction
would otherwise have been stripped by § 1252(a)(2)(A).
Make The Rd. N.Y. v. Wolf, 962 F.3d 612, 624–25 (D.C. Cir. 2020); see also Las Americas Immigrant Advoc. Ctr. v. Wolf, 507 F. Supp. 3d 1, 19 (D.D.C. 2020).9 As we have explained, § 1252(a)(2)(A) does not strip jurisdiction over the class’s constitutional challenge to the detention mandate imposed by § 1225(b)(1)(B)(ii), as interpreted in Jennings, so
§ 1252(e)(3) has no applicability here.
To summarize: § 1252(a)(2)(A) does not deprive the
court of jurisdiction over the class’s due process claim. Section 1252(e)(3)’s limited jurisdictional grant therefore does not come into play. As neither § 1252(a)(2)(A) nor
§ 1252(e)(3) bars the class’s due process claim, the district court, and we, have subject matter jurisdiction over that claim.
8
Under 28 U.S.C. § 1331, the court has jurisdiction to decide federal questions, which include questions concerning the constitutionality of statutes.
9
Under this provision, the District Court for the District of Columbia retains jurisdiction to hear cases challenging the agency’s processes for carrying out expedited removal. See, e.g., Make the Rd. N.Y. v. Mullin, 179 F.4th 16, 25 (D.C. Cir. 2026).
PADILLA V. U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT 25
B. Merits
We now turn to the second certified question: whether
the class “may pursue constitutional due process claims
regarding bond hearings” in light of Department of
Homeland Security v. Thuraissigiam, 591 U.S. 103 (2020).
The government’s sweeping core position is that after
Thuraissigiam, noncitizens who have entered the United
States unlawfully have no procedural due process rights
beyond those conferred by statute. As a result, the
government maintains, noncitizens, such as those in the bond hearing class, who are covered by the recently expanded
expedited removal designation, may be detained for as long as it takes to complete full removal proceedings, including court of appeals review of the agency decision. Because the government’s argument turns on its understanding of
Thuraissigiam, we begin by carefully examining that
opinion.
Vijayakumar Thuraissigiam crossed the border into the
United States without inspection. Thuraissigiam, 591 U.S. at 114. He was then apprehended 25 yards from the border and placed in expedited removal proceedings. Id. At that point, Thuraissigiam asserted that he feared persecution if returned to his home country, Sri Lanka. Id. An asylum officer and an immigration judge found that he lacked a credible fear of persecution. Id. Thuraissigiam then filed a habeas petition contesting the negative credible fear finding. Id. at 114–15. The Court determined that 8 U.S.C. § 1252(e)(2)
26 PADILLA V. U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT
“unequivocally bars habeas review of [Thuraissigiam’s]
claims.”10 Id. at 133.
In doing so, the Court rejected the proposition that
§ 1252(e)(2)’s jurisdiction limitation “violate[d] [Thuraissigiam’s] right to due process by precluding judicial review of his allegedly flawed credible-fear proceeding.” Id. at 138. It explained that, “[w]hile aliens who have
established connections in this country have due process
rights in deportation proceedings, the Court long ago held that Congress is entitled to set the conditions for an alien’s lawful entry into this country and that, as a result, an alien at the threshold of initial entry cannot claim any greater rights under the Due Process Clause.” Id. at 107 (emphasis added). Consequently, “an alien in [Thuraissigiam’s] position has
10
Section 1252(e)(2) states:
Judicial review of any determination made under
section 1225(b)(1) of this title is available in habeas
corpus proceedings, but shall be limited to
determinations of—
(A) whether the petitioner is an alien,
(B) whether the petitioner was ordered removed
under such section, and
(C) whether the petitioner can prove by a
preponderance of the evidence that the petitioner
is an alien lawfully admitted for permanent
residence, has been admitted as a refugee under
section 1157 of this title, or has been granted
asylum under section 1158 of this title, such
status not having been terminated, and is entitled
to such further inquiry as prescribed by the
Attorney General pursuant to section
1225(b)(1)(C) of this title.
PADILLA V. U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT 27
only those rights regarding admission that Congress has
provided by statute.” Id. at 140 (emphasis added).
The government argues that, under Thuraissigiam, the
bond hearing class members have no procedural due process rights regarding their detention other than what is provided by statute. Because the statute does not provide for bond hearings, see Jennings, 583 U.S. at 302–03, the government contends, the class’s due process claim necessarily fails.
We cannot agree with this extreme reading of
Thuraissigiam. Thuraissigiam did not—contrary to the
government’s contention—trample decades of precedent
establishing that noncitizens within the United States,
legally or not, generally are within the protections of the Fifth Amendment’s Due Process Clause. The limits on
noncitizens’ due process rights that Thuraissigiam
recognized apply only to individuals on the threshold of
initial entry, not individuals well within the country’s
borders and present for days, weeks, months, or years.
1. Threshold of Initial Entry
First and most important, Thuraissigiam’s due process
holding turned on its conclusion, emphasized repeatedly,
that Thuraissigiam was apprehended “at the threshold of
initial entry” or “on the threshold.” 591 U.S. at 107, 140. As expedited removal now applies to unlawful entrants who
arrived up to two years before their apprehension and are encountered anywhere in the country, the bond hearing class is comprised largely of individuals who have passed that
“threshold” both temporally and geographically. 11 Such
11
The definition of the class is not included with the certified questions, nor did the government argue in this appeal that the definition is flawed. 28 PADILLA V. U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT
individuals, under Thuraissigiam as before, are entitled to the constitutional due process rights available to every
person present in the United States. Thuraissigiam, narrowly focused on noncitizens right near the border, did not unsettle this longstanding principle.
i. Due Process and the Territoriality Rule
“No person shall be . . . deprived of life, liberty, or
property, without due process of law.” U.S. Const. amend. V (emphasis added). As its language proclaims, the Fifth
Amendment’s due process guarantee is accorded any person. It is not contingent on citizenship status. The Supreme Court confirmed well over a century ago that “even aliens shall not be . . . deprived of life, liberty, or property without due process of law.” Wong Wing v. United States, 163 U.S. 228, 238 (1896). The application of the Fifth Amendment to
noncitizens has been repeatedly and resoundingly reaffirmed over the many years since Wong Wing. See, e.g., Downes v. Bidwell, 182 U.S. 244, 283 (1901); Yamataya v. Fisher, 189 U.S. 86, 100-01 (1903); Kwong Hai Chew v. Colding, 344
U.S. 590, 596 (1953); Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 212 (1953); Galvan v. Press, 347 U.S. 522, 530 (1954); Mathews v. Diaz, 426 U.S. 67, 77 (1976); Plyler v. Doe, 457 U.S. 202, 210 (1982); Zadvydas v. Davis, 533 U.S. 678, 693 (2001). There is just no room for doubt that “since he is a ‘person,’ an alien has the same protection for his life, liberty and property under the Due Process
Clause as is afforded to a citizen.” Galvan, 347 U.S. at 530.
The class definition potentially could, in the district court, be amended to leave out the narrow category of noncitizens covered by Thuraissigiam.
PADILLA V. U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT 29
The application of the Due Process Clause to a
noncitizen generally turns on whether that individual is
“within the territory of the United States.” Wong Wing, 163 U.S. at 238. Noncitizens “outside the sovereign territory of the United States” are generally not “entitled to Fifth
Amendment rights.” United States v. Verdugo-Urquidez,
494 U.S. 259, 269 (1990); see also Johnson v. Eisentrager, 339 U.S. 763, 784 (1950). “But once an alien enters the
country, the legal circumstance changes, for the Due Process Clause applies to all ‘persons’ within the United States, including aliens.” Zadvydas, 533 U.S. at 693. As a result, physical entry is, by and large, the pivotal factor on which the scope of a noncitizen’s due process rights turns.
Importantly, the applicability of the Due Process Clause
is not contingent on the legality of an individual’s entry. Ergo, “[a]liens, even aliens whose presence in this country is unlawful, have long been recognized as ‘persons’
guaranteed due process of law by the Fifth and Fourteenth Amendments.” Plyler, 457 U.S. at 210.12 The Due Process
Clause applies to all “aliens, whether their presence here is lawful, unlawful, temporary, or permanent.” Zadvydas, 533 U.S. at 693.
ii. The Entry Fiction
There is a narrow exception to the territoriality rule: the “entry fiction.” Where the entry fiction applies, “aliens seeking admission into the United States may physically be
12
See also Kim Ho Ma v. Ashcroft, 257 F.3d 1095, 1109 (9th Cir. 2001) (“[A]liens who have entered the United States, legally or illegally, are entitled to the protections of the Fifth Amendment.”); Mezei, 345 U.S. at 212 (“[A]liens who have once passed through our gates, even illegally, may be expelled only after proceedings conforming to traditional standards of fairness encompassed in due process of law.”). 30 PADILLA V. U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT
allowed within its borders pending a determination of
admissibility, [but] such aliens are legally considered to be detained at the border and hence as never having effected entry into this country.” Barrera-Echavarria v. Rison, 44 F.3d 1441, 1450 (9th Cir. 1995) (en banc) (emphasis added) (citation omitted); see Mezei, 345 U.S. at 215 (explaining that “such temporary harborage . . . [does] not affect[] an alien’s status”).
The entry fiction was devised as a response to the
humanitarian crisis created by a massive increase in
immigration at the end of the nineteenth century. Most
immigrants arrived by ship, where they waited to be
inspected before disembarking. See Eunice Lee, The End of Entry Fiction, 99 N.C. L. Rev. 565, 584 (2021). The
immigration system was overwhelmed, so the wait was often lengthy, and the conditions on the ships were notoriously squalid and unsanitary. Id. at 585–88; Charles D.
Weisselberg, The Exclusion and Detention of Aliens:
Lessons from the Lives of Ellen Knauff and Ignatz Mezei,
143 U. Pa. L. Rev. 933, 952 (1995). So Congress passed
legislation allowing immigration officers to order
uninspected individuals removed from the vessels they
arrived on and then examined later at a designated time and place. Act of Mar. 3, 1891, ch. 551, § 8, 26 Stat. 1084, 1085; Mezei, 345 U.S. at 215. The immigrants were granted
“temporary harborage” in the United States pending a
conclusive determination on whether to admit them. Mezei, 345 U.S. at 215. “But such temporary harborage, an act of legislative grace, bestow[ed] no additional rights.” Id. The entry fiction allowed noncitizens temporarily to enter the United States without any impact on their immigration status or ultimate right to be admitted; they remained “in the same position, so far as regarded [their] right to land in the United
PADILLA V. U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT 31
States, as if [they] never had been removed from the steamship.” Nishimura Ekiu v. United States, 142 U.S. 651, 661 (1892).
Today, the entry fiction encompasses those apprehended
at or very near a point of entry and then either paroled into the United States or detained in the United States pending a determination of their admissibility. Such individuals are “treated as if stopped at the border” with respect to certain legal rights. Mezei, 345 U.S. at 215; see also Nishimura
Ekiu, 142 U.S. at 661–62; United States v. Ju Toy, 198 U.S. 253, 263 (1905); Kaplan v. Tod, 267 U.S. 228, 230 (1925); Leng May Ma v. Barber, 357 U.S. 185, 187 (1958). Because
such individuals remain “on the threshold of initial entry” despite their physical presence in the United States, their due process rights regarding admission are limited to
“[w]hatever the procedure authorized by Congress is.”
Mezei, 345 U.S. at 212 (citation omitted).
The entry fiction traditionally applied only to individuals encountered by immigration officials at a point of entry. See, e.g., Nishimura Ekiu, 142 U.S. at 661; Mezei, 345 U.S. at 208; U.S. ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 539 (1950). In Thuraissigiam, the Supreme Court extended the
entry fiction a tiny bit—to an individual apprehended
immediately after entry within 25 yards of the border. 591 U.S. at 107. Although Thuraissigiam had his feet on United States soil for long enough to traverse those 25 yards, the Court determined that his legal status was that of one on the “threshold of initial entry.” Id. As a consequence of that status, he did not have due process rights “regarding
admission” beyond those “that Congress has provided by
statute.” Id. at 140.
32 PADILLA V. U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT
This court has, since Thuraissigiam, applied the entry
fiction to other individuals apprehended immediately after entering the United States. Guerrier v. Garland, 18 F.4th 304 (9th Cir. 2021), applied the entry fiction to an individual apprehended “‘shortly []after’ entering the United States” who challenged his lack of counsel during his credible fear interview. Id. at 307 n.1, 312–13. Likewise, MendozaLinares, 51 F.4th at 1149, applied the entry fiction to an individual “immediately apprehended and detained” after
“jumping over the international border fence” with regard to a challenge to a negative credible fear determination.
iii. The Threshold of Initial Entry
The bond hearing class is fundamentally differently
situated from Thuraissigiam and the individuals in Guerrier and Mendoza-Linares. The class is specifically limited to those who “who entered the United States without
inspection.” So, it excludes individuals encountered at a point of entry. And, as we have explained, as DHS now uses “expedited removal to the fullest extent authorized by
statute,” any inadmissible noncitizen “encountered
anywhere in the United States” who has “been continuously present in the United States for less than two years” is
currently subject to expedited removal. Designating Aliens for Expedited Removal, 90 Fed. Reg. 8139, 8139 (Jan. 24,
2025). The bond hearing class includes all noncitizens
originally in expedited removal who are subject to detention during full removal proceedings following a positive
credible fear determination. That group now includes
noncitizens apprehended tens, hundreds, or over a thousand miles from the border, weeks, months, or up to two years
after entry.
PADILLA V. U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT 33
Thuraissigiam was not an abandonment of the
longstanding principle that noncitizens, like the class
members, who are well within the country’s borders are
protected by the Due Process Clause. If it were, the Court would not have taken pains repeatedly to emphasize that
Thuraissigiam was “at the threshold of initial entry,” or “on the threshold,” 591 U.S. at 107, 140, and “just 25 yards from the border,” id. at 107. And, if it were adopting the
groundbreaking principle the government posits, the Court in Thuraissigiam would have grappled with the serious stare decisis concerns any broader holding would have raised. To the contrary, Thuraissigiam affirmed that “aliens who have established connections in this country have due process
rights in deportation proceedings.” Id. at 107.
The government insists otherwise, asserting that, under
Thuraissigiam, every individual subject to the new
expedited removal directive is “on the threshold of initial entry” and so has no due process rights beyond those in the expedited removal statute. Mezei, 345 U.S. at 212. And,
when asked, the government explained that its position does not stop there. Should Congress choose to apply the
expedited removal procedures to all noncitizens who entered illegally, the government maintained, there would be no
constitutional barrier to doing so and “it doesn’t really matter if it’s two weeks or two years or five years or nine years for that matter.”13
13
The government has taken a similarly extreme position elsewhere. See Make the Road N.Y. v. Noem, 805 F. Supp. 3d. 139, 147 (D.D.C. 2025) (“[T]he Government makes a truly startling argument: that those who entered the country illegally are entitled to no process under the Fifth Amendment, but instead must accept whatever grace Congress affords 34 PADILLA V. U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT
The government’s interpretation of Thuraissigiam
proposes that the constitutional question whether an
undocumented individual is entitled to due process
protections is determined solely by whether Congress
decided to apply § 1225’s expedited removal criteria—or the criteria of some future, broader expedited removal statute— to that individual. In other words, in the government’s view, there is no independent constitutional due process protection for undocumented individuals at all. If a statute provides that they may be ousted from the country without any procedural protections, then they can be.
The government’s boundless proposition is nowhere to
be found in Thuraissigiam. Thuraissigiam does not
anywhere suggest that the entry fiction has swallowed up the Wong Wing principle that the Due Process clause applies to all “persons,” including those illegally present in this
country. Nor could it have so held. “The right to due process is conferred, not by legislative grace, but by constitutional guarantee.” Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 541 (1985) (citation modified).
Contrary to the government’s asserted understanding of
the opinion, Thuraissigiam’s due process holding—and its
underlying interpretation of the entry fiction—was explicitly premised on the fact that Thuraissigiam was detained within yards of the border immediately after his unauthorized entry. The Court explained that Thuraissigiam “attempted to enter the country illegally and was apprehended just 25 yards from the border. He therefore has no entitlement to procedural
them.”), vacated, 179 F.4th 16 (D.C. Cir. 2026); Rodriguez v. Ortega, 180 F.4th 702, 714-15 (5th Cir. 2026), reh’g en banc granted, opinion vacated, 2026 WL 2014647 (5th Cir. July 10, 2026).
PADILLA V. U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT 35
rights other than those afforded by statute.” Thuraissigiam, 591 U.S. at 107 (emphasis added).
The government’s extravagant reading of Thuraissigiam
is at odds with the key concept, emphasized in
Thuraissigiam, that the entry fiction applies to those
noncitizens stopped “at the threshold of initial entry,” id., as well as to those allowed to enter only conditionally.
“Threshold” means “the place or point of entering or
beginning: outset.” Threshold, Merriam-Webster Coll.
Dictionary 1639 (12 ed. 2026). “Threshold” thus connotes a limited geographic space closely proximate to the point of entry and a temporal period closely proximate to the moment of entry. As Thuraissigiam explained, the entry fiction
applies to “an alien who is detained shortly after unlawful entry.” 591 U.S. at 140 (emphasis added).
Once again, the expedited removal process now applies
to undocumented individuals apprehended anywhere in the
United States within two years of their initial entry. That group is not congruent with the category of noncitizens
covered by Thuraissigiam. A person who, for example, has
been in the United States for over a year and lives in
Nebraska is no more on the “threshold” of entry than a
person sleeping in their bedroom is on the “threshold” of their house or a student graduating from college is on the “threshold” of matriculating. Thuraissigiam’s careful
limitation of its due process holding to those apprehended on the “threshold of initial entry” was not an invitation to the government to remove constitutional due process
protections from everyone who meets the statutory criteria for expedited removal as it now exists—or as it may be
expanded by statute to cover all noncitizens who enter
illegally. Id. at 107.
36 PADILLA V. U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT
iv. Entry Versus Admission
As a counterpoint, the government puts forth a novel
interpretation of “entry.” It contends that “entry” requires legal admission; all those not legally admitted, according to the government, remain on the “threshold of initial entry” and have only those due process rights provided by statute. This assertion runs squarely into over a century of Supreme Court precedent holding that those who have physically
entered the United States, no matter the legality of their entry, are entitled to due process under the Fifth
Amendment.
In Yick Wo v. Hopkins, the Court recognized that “[t]he
fourteenth amendment to the constitution is not confined to the protection of citizens”; its provisions are “universal in their application, to all persons within the territorial
jurisdiction, without regard to any differences of race, of color, or of nationality.” 118 U.S. 356, 369 (1886). Wong Wing then applied Yick Wo’s interpretation to the Fifth
Amendment, proclaiming that “all persons within the
territory of the United States,” even those accused of “being and remaining unlawfully within the limits of the United
States” are entitled to due process rights under the Fifth Amendment. 163 U.S. at 234, 238 (emphasis added).
Yamataya reaffirmed this principle, declaring that a person “who has entered the country, . . . although alleged to be illegally here” must be given due process. 189 U.S. at 101. Mezei likewise held that “aliens who have once passed
through our gates, even illegally, may be expelled only after proceedings conforming to traditional standards of fairness encompassed in due process of law.” 345 U.S. at 212
(emphasis added).
PADILLA V. U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT 37
The Court has not wavered from this position in the
intervening years. In Mathews, it again explained:
There are literally millions of aliens within
the jurisdiction of the United States. The
Fifth Amendment, as well as the Fourteenth
Amendment, protects every one of these
persons from deprivation of life, liberty, or
property without due process of law. Even
one whose presence in this country is
unlawful, involuntary, or transitory is entitled
to that constitutional protection.
426 U.S. at 77 (citations omitted). Plyler made this point yet again: “‘all persons within the territory of the United States,’ including aliens unlawfully present, may invoke the Fifth and Sixth Amendments to challenge actions of the Federal
Government.” 457 U.S. at 212 (emphasis added) (quoting
Wong Wing, 163 U.S. at 238). And, in Zadvydas, the Court
was emphatic once more that “the Due Process Clause
applies to all ‘persons’ within the United States, including aliens, whether their presence here is lawful, unlawful,
temporary, or permanent.” 533 U.S. at 693 (emphasis
added).
The government insists that Thuraissigiam undid—
without so acknowledging—this extensive authority. It so
contends even though Thuraissigiam nowhere suggested
that it was overruling any Supreme Court precedents, and
never made any broad statements affecting the due process rights of all illegal entrants generally, as opposed to those encountered “at the threshold of initial entry.” 591 U.S. at 107. So that there is no uncertainty, we will say it once more: except for the extremely narrow category of people covered 38 PADILLA V. U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT
by the entry fiction, every person in the United States is entitled the Fifth Amendment’s guarantee of due process,
regardless of their citizenship or legal status. We cannot, as the government urges, circumvent this bedrock principle by completely reinventing the entry fiction such that every
person who has not been legally admitted is stripped of their due process rights. The bond hearing class includes
noncitizens apprehended far beyond the threshold of entry covered by Thuraissigiam. It is therefore made up largely of individuals who, before and after Thuraissigiam, have full procedural due process rights under the Fifth Amendment.
2. Admission Versus Detention
This conclusion is reinforced by the consideration that
the class’s due process claim concerns detention—not, as in Thuraissigiam, admission to the country.
Thuraissigiam specifically addressed whether a
petitioner had a due process right independent of statutory protections to judicial review of his negative credible fear finding. 591 U.S. at 140. A credible fear determination
affects whether an individual may be removed or denied
admission without access to full asylum proceedings.
Thuraissigiam’s due process claim thus concerned
admission. As the Court noted, Thuraissigiam “made no
mention of release from custody,” nor did he assert a due process claim regarding judicial review of any aspect of his detention. Id. at 115, 117–18. And the Court in
Thuraissigiam emphasized that it was specifically
addressing Thuraissigiam’s admission-related rights,
concluding that “an alien in respondent’s position has only those rights regarding admission that Congress has provided by statute.” Id. at 140 (emphasis added).
PADILLA V. U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT 39
Unlike the political branches’ plenary power over
admission, 14 the principle that the government cannot
arbitrarily detain people, including noncitizens, has been a central tenet of British and American legal traditions since the thirteenth century. Admission and detention occupy
fundamentally different positions in our legal order. From the Declaration of Independence through the original
Constitution and the Fourteenth Amendment, protection
against restrictions on “liberty” has been central to our national identity.
Our tradition of due process protections predates the
nation itself, deriving from the “settled usages and modes of proceeding existing in the common and statute law of
England, before the emigration of our ancestors.” Murray’s Lessee v. Hoboken Land & Improvement Co., 59 U.S. 272,
277 (1855). So our examination of the long tradition of
restraints on the government’s authority to detain people, including noncitizens, begins in thirteenth-century England.
The right to be free from detention without adequate
process was recognized at least as early as 1215, when the Magna Carta, “the foundation of American as well as British liberty,” was adopted. Martin v. Waddell’s Lessee, 41 U.S. 367, 382 (1842). That seminal document pronounced that
“[n]o free man shall be taken [or] imprisoned, . . . except by the lawful judgment of his peers and by the law of the land.” Magna Carta, ch. 39, reprinted in A.E. Dick Howard, Magna Carta: Text and Commentary 43 (1964).
In the centuries that followed, freedom from detention
was understood as the foundation of all other rights. “[T]he liberty of a mans person” provided for in the Magna Carta,
14
Thuraissigiam, 591 U.S. at 139 (citation omitted).
40 PADILLA V. U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT
“is more precious to him, th[a]n all the [rights] that follow.” Edward Coke, The Second Part of the Institutes of the Laws of England 45 (1797). A century after the Magna Carta, a
1354 statute declared that “no Man of what Estate or
Condition that he be, shall be . . . taken, nor
imprisoned . . . without being brought in Answer by due
Process of the Law.” 28 Edw. 3, ch. 3 (1354). So was born the “due process” terminology to encompass the protections against arbitrary detention fundamental to our liberty.
The right to be free from temporary detention before
adjudication, absent adequate justification, is at least as old as the Magna Carta. By the 1100s, an individual imprisoned pretrial could seek release from confinement through the
writ de homine replegiando, unless accused of a particularly severe offense. See William F. Duker, The Right to Bail: A Historical Inquiry, 42 Alb. L. Rev. 33, 43–45 (1977). By
1275, the right to be released pretrial if eligible for bail, and the procedures for establishing such eligibility, were
codified. See Statute of Westminster the First of 1275, 3 Edw. 1, ch. 15. These early provisions rested on the
fundamental principle that the government cannot deprive an individual of liberty, even temporarily, without providing an individualized justification.
After the Magna Carta’s broad declaration of the right to be free from arbitrary detention and the codification of
mechanisms for securing release, additional interventions further limited the government’s detention authority. In
Darnell’s Case (1627) 3 How. St. Tr. 1, five knights were imprisoned without being charged with any specific offense. When the Court of the King’s Bench upheld their detention and denied them bail, Parliament responded by adopting the Petition of Right. See Petition of Right, 3 Car. 1 c. 1 (1627); see Kellen R. Funk & Sandra G. Mayson, Bail at the
PADILLA V. U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT 41
Founding, 137 Harv. L. Rev. 1816, 1827–28 (2024). The
Petition of Right protested the practice of “imprison[ment] without any cause showed” and provided that “no freeman
in any such manner as is before mentioned be imprisoned or detained.” Petition of Right §§ 5, 8 (spelling modified).
Subsequent enactments created additional procedures
designed to prevent arbitrary detention. The Habeas Corpus Act of 1679, 31 Car. 2 c. 2, characterized by Blackstone as a “second magna carta, and stable bulwark of our liberties,” established various detention-related procedures, including an assurance against undue delays in holding bond hearings for pretrial detainees. 1 William Blackstone, Commentaries *133; see also Habeas Corpus Act, 16 Car. 1 c. 10, § 6 (1640) (providing for use of the writ of habeas corpus to contest the legality of detention).15 A decade later, the English Bill of Rights prohibited the practice of setting “excessive bail[]” to “elude the Benefit[] of the Lawes made for the Liberty of the Subjects.” Bill of Rights, 1 W. & M. 2 c. 2 (1689).
Critically for present purposes, the ability to contest the legality of one’s detention during this period was not limited to citizens. See Matthew Hale, The Prerogatives of the King 56 (1976); see also 11 Halsbury’s Laws of England 25 (3d
ed. 1955). Noncitizens could and did challenge their
detention. In one case, for example, an African slave
purchased in Virginia and transported to England obtained habeas relief on the ground that English law did not
recognize his enslavement. Somerset v. Stewart (1772) 98
15
At that time, the writ of habeas corpus was the primary mechanism by which individuals could enforce the Magna Carta’s protections against detention without due process. See Coke, supra, at 52; 9 W.S. Holdsworth, A History of English Law 111–12 (1926); 3 William Blackstone, Commentaries *137.
42 PADILLA V. U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT
Eng. Rep. 499, 510. In another, a court considered the habeas petition of a Swedish man, holding that he was lawfully
detained. R v. Schiever (1759) 97 Eng. Rep. 551, 551–52.
“[I]n the many cases of foreigners using habeas corpus the issue of their foreignness was almost never discussed, much less used to bar review of detention orders.” Paul D. Halliday & G. Edward White, The Suspension Clause: English Text,
Imperial Contexts, and American Implications, 94 Va. L.
Rev. 575, 605 (2008). In one of the rare instances in which it was argued that a noncitizen should not be able to access habeas relief to challenge his detention because he was a foreigner, that assertion was rejected and the prisoner
discharged. See Du Castro’s Case (1697) 92 Eng. Rep. 816.
The right to challenge unlawful detention also extended
to non-criminal detentions and confinements. English courts reviewed the allegedly unlawful confinement of a woman to a “mad-house,” R v. Turlington (1761) 97 Eng. Rep. 741; the impressment of sailors, see Goldswain’s Case (1778) 96
Eng. Rep. 711; and detention during bankruptcy
proceedings, see R v. Nathan (1730) 93 Eng. Rep. 914. By
the seventeenth century, it had become increasingly common to use the writ of habeas corpus “to get relief from
imprisonment by private persons, or from imprisonment on
other than a charge of crime.” 9 Holdsworth, supra, at 119; see also Jonathan L. Hafetz, The Untold Story of
Noncriminal Habeas Corpus and the 1996 Immigration
Acts, 107 Yale L.J. 2509, 2522–24. Bail was likewise
available for individuals detained in connection with a civil case. See 4 William Blackstone, Commentaries *294.
The deep concern over arbitrary deprivations of liberty,
and the sustained project of limiting the government’s
detention authority, carried through to the founding of our nation. “The Framers viewed freedom from unlawful
PADILLA V. U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT 43
restraint as a fundamental precept of liberty.” Boumediene v. Bush, 553 U.S. 723, 739 (2008). Early on, Alexander
Hamilton proclaimed that “the practice of arbitrary
imprisonments, [has] been, in all ages, the favorite and most formidable instrument[] of tyranny.” The Federalist No. 84 (Alexander Hamilton). Hamilton saw preventing arbitrary
imprisonment as a critical reason for creating the federal judiciary, to prevent Congress from imprisoning individuals without adequate judicial process. See The Federalist No. 78 (Alexander Hamilton). In debates over the ratification of the Constitution, there was much discussion of whether the
proposed provisions sufficiently prevented “arbitrary
imprisonment, which has been the principal source of
tyranny in all ages.” 4 The Debates in the Several State
Conventions on the Adoption of the Federal Constitution 145 (Jonathan Elliot ed., 2d ed. 1836) (quoting James Iredell); see also 2 id., at 79 (characterizing the ability to force the government to justify an individual’s detention as “essential to freedom”).
The Framers, committed to guarding against arbitrary
detention, included numerous provisions in our Constitution to protect against unlawful restraint—the Fifth
Amendment’s due process guarantee, the Eighth
Amendment’s prohibition on excessive bail, and the
Suspension Clause’s assurance of access to the writ of
habeas corpus. U.S. Const. amends. V, VIII; id. art. I, § 9 cl. 2. Carrying forward the English tradition, the authority to challenge the legality of detention was ordinarily accorded during the founding era to citizens and noncitizens alike. See, e.g., United States v. Villato, 2 U.S. (2 Dall.) 370, 373 (1797); Ex parte D’Olivera, 7 F. Cas. 853, 854 (C.C.D.
Mass. 1813).
44 PADILLA V. U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT
This historical account illustrates three features of our legal tradition regarding detention. First, freedom from
arbitrary imprisonment has occupied a central place in both the English constitutional order and our own. As Blackstone proclaimed, detention ungoverned by adequate procedures is a “dangerous engine of arbitrary government.” 1 William
Blackstone, Commentaries *131–32. “Of great importance
to the public is the preservation of this personal liberty: for if once it were left in the power of any, the highest,
magistrate to imprison arbitrarily whomever he or his
officers thought proper, . . . there would soon be an end of all other rights and immunities.” Id. at *131. Second, there is a long history of imposing limits on the government’s
ability to detain or imprison people. Such constraints include the widespread availability of bail as well as judicial review of the legality of confinement. And, finally, noncitizens and citizens alike have been able to use these mechanisms to
obtain release from detention.
Concern about arbitrary detention is not a vestige of a
bygone era. Since the founding, constitutional protections limiting the government’s authority over physical
confinement have expanded, not diminished. In the
immigration context specifically, rights against arbitrary detention have been frequently vindicated through the Due Process Clause, in recognition that “[f]reedom from
imprisonment—from government custody, detention, or
other forms of physical restraint—lies at the heart of the liberty that Clause protects.” Zadvydas, 533 U.S. at 690. Zadvydas so confirmed when it recognized that there are
constitutional limitations on the government’s ability to detain noncitizens who have final orders of removal. See id. at 696. Although such individuals have no right to remain in
PADILLA V. U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT 45
the United States, they retain their constitutional rights regarding confinement.
In sum, the government’s strictly circumscribed
detention authority, a pillar of our common law tradition for almost a millennium, stands in contrast to the political
branch’s “plenary authority to decide which aliens to admit.” Thuraissigiam, 591 U.S. at 139. Thuraissigiam was an
admission, not a detention, case. For that reason, as well as because it was specifically limited to noncitizens at the “threshold of initial entry,” it has no application here, the government’s fervent pleas for its vast expansion
notwithstanding. Id. at 107. Noncitizens who arrive illegally and are found away from the border well after arrival are protected from arbitrary detention in violation of the Due Process Clause.16
III. Conclusion
The district court correctly concluded that (1) it has
jurisdiction over this dispute and (2) Thuraissigiam does not bar the bond hearing class’s due process claim. The district court’s order denying the government’s motion to dismiss is AFFIRMED.
16
What those protections entail is an issue not before us now, as it is not within the certified issues in this interlocutory appeal. 46 PADILLA V. U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT
FRIEDLAND, Circuit Judge, concurring:
I join all of the majority’s opinion except for Section
II.B.2. I agree that Thuraissigiam’s holding covers only
those applicants at the threshold of initial entry. Given the broad class definition, see Maj. Op. at 25 n.11, that
conclusion is sufficient to resolve the certified questions in this appeal. I therefore refrain from deciding anything
further. See PDK Laboratories Inc. v. Drug Enf’t Admin.,
362 F.3d 786, 799 (D.C. Cir. 2004) (Roberts, J., concurring in part and concurring in the judgment) (“[I]f it is not
necessary to decide more, it is necessary not to decide
more.”).