Al-Thuraya v. Warden

Background

Hasan Ahmed Taleb Al-Thuraya entered the United States from Mexico without authorization in 2021, surrendered to authorities, and sought asylum based on fear of persecution in Yemen. An immigration officer found that he had a credible fear of persecution, and he was placed in regular removal proceedings. The government later granted him parole, but revoked his release in 2024 after identifying him as a potential national-security threat involving suspected terrorism or espionage. Immigration and Customs Enforcement then returned him to custody.

An immigration judge denied Al-Thuraya’s asylum application and related relief, and the Board of Immigration Appeals affirmed. Al-Thuraya sought review in the Second Circuit, which stayed his removal on July 16, 2025. At the time of this opinion, that review remained pending, and he had been detained for more than eleven months.

Claims and Disposition

Al-Thuraya initially sought mandamus relief based on a pending temporary protected status application and sought release under Zadvydas v. Davis, arguing that removal to Yemen was infeasible because of conditions there. The court denied those demands. The temporary protected status claim was moot because the application had been denied. The court concluded that Zadvydas concerned a different detention statute and applied to people with final removal orders who could not be removed, whereas Al-Thuraya was still challenging his removal order.

The court treated Al-Thuraya’s remaining claim as a due-process challenge to detention without a judicial custody determination. It construed that claim as seeking a bond hearing before an immigration judge.

Mandatory Detention and Due Process

The court recognized that 8 U.S.C. § 1225(b)(1)(B)(ii) requires detention when an immigration officer finds that an asylum applicant has a credible fear. Al-Thuraya identified no statutory basis for release. The court nevertheless held that mandatory detention under that statute does not eliminate constitutional due-process protections when detention becomes unreasonably prolonged.

The court applied the Second Circuit’s decision in Black v. Decker, which held that prolonged detention under another mandatory-detention statute may require a bond hearing. Black directs courts to weigh the three factors from Mathews v. Eldridge: the person’s private interest, the risk of an erroneous deprivation under existing procedures and the value of additional safeguards, and the government’s interests and administrative burdens.

The court rejected the government’s argument that Al-Thuraya had no due-process right because he was treated as an applicant for admission under the legal “entry fiction.” That doctrine can limit constitutional protection concerning an application for admission, but the court found it inapplicable here. Al-Thuraya had not been definitively denied entry: his removal case was under review, the Second Circuit had stayed his removal, and his request concerned the legality of prolonged detention rather than the decision whether he should be admitted.

Mathews Factors and Required Hearing

The court found that all three Mathews factors favored a bond hearing. First, freedom from imprisonment is a significant liberty interest, and Al-Thuraya had been detained for more than eleven months. Second, the detention statute supplied no procedure for deciding whether the length of detention had become unreasonable; the government identified discretionary parole as his only option. Third, a bond hearing would not interfere with the government’s authority to decide whether Al-Thuraya was admissible or removable. The government could present its concerns about danger, flight risk, or national security to the immigration judge.

The required hearing must follow the procedures described in Black. The government must prove by clear and convincing evidence that continued detention is justified based on danger to the community or risk of flight. The immigration judge must also consider alternatives to detention and Al-Thuraya’s ability to pay when setting bond.

Ruling

The court granted in part and denied in part Al-Thuraya’s petition. Consistent with its September 22, 2025 order, it required the government to provide a bond hearing before an immigration judge under the procedures described in Black v. Decker. The court did not decide whether Al-Thuraya should ultimately be released.