Unreported / Non-Citable
Background
Oleg Khamitsaev, a Russian citizen, sought entry into the United States in October 2022 and was classified as an arriving alien. The government released him on humanitarian parole, after which he moved to Illinois, applied for asylum, obtained work authorization, and lived with his family in the United States for approximately three years. His parole expired in October 2023, but he remained free until immigration officials detained him at a checkpoint on November 19, 2025.
An immigration judge ordered Khamitsaev removed in December 2025, but that order was not final because his appeal remained pending before the Board of Immigration Appeals. Khamitsaev filed a habeas petition challenging his continued detention without a bond hearing. The government sought summary judgment, arguing that 8 U.S.C. § 1225(b)(2) required his detention as an arriving alien, that the detention did not violate due process, and that he had failed to exhaust administrative remedies.
The Court’s Holding
The court held that Khamitsaev’s detention without an individualized determination violated procedural due process. Although the Fifth Circuit had held that Section 1225(b)(2) applies to all applicants for admission, the court concluded that precedent did not foreclose an as-applied constitutional challenge to mandatory detention. It also held that the “entry fiction,” under which a paroled arriving alien is treated as if stopped at the border, did not eliminate Khamitsaev’s due-process rights concerning detention after he had lived freely in the country for years.
Applying the Mathews v. Eldridge balancing test, the court found that Khamitsaev had a strong liberty interest in freedom from civil confinement, reinforced by his years of prior release, family ties, employment, compliance with immigration requirements, and lack of criminal history. Because he had received no individualized assessment of flight risk or dangerousness, the procedures were constitutionally inadequate. The court granted the habeas petition in part and ordered the government to release him by 5:00 p.m. on July 21, 2026. It declined to reach his remaining claim because the due-process ruling provided the requested relief.
The court also rejected the government’s exhaustion defense. No statute required exhaustion because Khamitsaev was not seeking review of a final removal order, and any prudential exhaustion requirement was waived as patently futile because controlling BIA precedent deprived immigration judges of authority to consider bond requests from noncitizens detained under Section 1225(b)(2).
Key Takeaways
- An arriving alien who was paroled into the United States and lived freely here for years may acquire a protected liberty interest in remaining free from civil detention.
- The entry fiction may limit due-process rights concerning admission, but it does not necessarily foreclose an as-applied challenge to detention without individualized procedures.
- Administrative exhaustion was excused because BIA precedent made a request for bond before an immigration judge patently futile.
- The remedy was release, not merely an order directing the government to conduct a future bond hearing.
Why It Matters
The decision distinguishes statutory authority to detain under Section 1225(b)(2) from the separate constitutional question whether detention without individualized review is permissible as applied to a particular person. It indicates that mandatory-detention classifications do not automatically defeat procedural due-process claims based on prolonged residence, prior government-authorized release, and substantial ties developed while living in the United States.
For immigration practitioners, the opinion also offers a route around exhaustion arguments when binding agency precedent leaves immigration judges without jurisdiction to grant bond. The ruling is limited to the circumstances presented and does not invalidate Section 1225(b)(2) generally or disturb Khamitsaev’s pending removal proceedings.