Law360 (September 21, 2026, 10:16 PM EDT) -- The Ninth Circuit held in a published opinion Monday that a certified class of asylum-seekers apprehended well within the U.S. border can challenge their detentions, rejecting the government's contention that the U.S. Supreme Court limited their due process rights.

A three-judge panel shot down the federal government's argument that under the Supreme Court's 2020 ruling in U.S. Department of Homeland Security v. Thuraissigiam , the asylum-seekers lack procedural due process rights regarding their mandatory detentions other than what is provided by an applicable statute providing no opportunity for bond hearings.

"We cannot agree with this extreme reading of Thuraissigiam," U.S. Circuit Judge Marsha S. Berzon wrote on the panel's behalf. "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."

Judge Berzon said the Supreme Court's Thuraissigiam ruling was "specifically limited to noncitizens at the 'threshold of initial entry.'"

Thuraissigiam thus "has no application here, the government's fervent pleas for its vast expansion notwithstanding," Judge Berzon wrote, adding: "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."

The plaintiffs in the case are a certified class of asylum-seekers who entered the U.S. without being admitted or paroled, were screened for expedited removal, and were found to have a credible fear of persecution or torture. They were subject to mandatory detention under a section of law interpreted as providing no opportunity for a bond hearing requiring the government to justify why the asylum-seekers' detention is necessary.

The asylum-seekers allege in their suit that the lack of individualized bond hearings violates their due process rights under the Fifth Amendment.

The federal government moved to dismiss the lawsuit. Among its arguments was that the bond hearing class's due process claim was barred by the Supreme Court's Thuraissigiam ruling.

U.S. District Judge Marsha J. Pechman denied the dismissal bid but certified the issue — along with an issue concerning the court's jurisdiction over the case — for interlocutory appeal, saying in March 2024: "Both questions present novel legal issues on which fair-minded jurists might reach contradictory conclusions."

In affirming the district court's order denying the government's motion to dismiss, the Ninth Circuit said that the court correctly concluded it has jurisdiction over the suit and that Thuraissigiam does not bar the class's due process claim.

Thuraissigiam involved a Sri Lankan asylum-seeker who entered the U.S. without inspection before being apprehended 25 yards from the border and placed in expedited removal proceedings.

The Ninth Circuit said that the Supreme Court had recognized limits on noncitizens' due process rights in Thuraissigiam but that the limits "apply only to individuals who are on the threshold of initial entry, not individuals well within the country's borders and present for days, weeks, months, or years."

"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,'" Judge Berzon wrote.

The class, on the other hand, is "comprised largely of individuals who have passed that 'threshold' both temporally and geographically," she said.

"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," Judge Berzon wrote.

The government had argued that the term "entry" requires legal admission into the U.S. and that those who were not legally admitted thus remain on the "threshold of initial entry."

But that 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," Judge Berzon said.

Judge Berzon added that while the class's due process claim concerns "detention," Thuraissigiam concerned admission to the country. She said that constitutional protections limiting the government's authority over physical confinement "have expanded, not diminished," including in the immigration context where "rights against arbitrary detention have been frequently vindicated through the due process clause."

Judge Berzon pointed to the Supreme Court's 2001 ruling in Zadvydas v. Davis , which she said recognized constitutional limits on the government's ability to detain noncitizens who have final orders of removal.

"Although such individuals have no right to remain in the United States, they retain their constitutional rights regarding confinement," Judge Berzon wrote.

U.S. Circuit Judge Michelle T. Friedland agreed with the majority, except for the part differentiating admission versus detention.

Judge Friedland agreed that Thuraissigiam's holding covers only those applicants at the threshold of initial entry and said that given the broad class definition, "that conclusion was sufficient to resolve the certified questions in this appeal."

She said she was thus refraining from deciding anything further.

The U.S. Department of Justice and counsel for the class did not immediately respond to requests for comment Monday.

U.S. Circuit Judges Marsha S. Berzon, Michelle T. Friedland, and Salvador Mendoza Jr. sat on the panel for the Ninth Circuit.

The class is represented by Matt Adams, Leila Kang, Glenda M. Aldana Madrid and Aaron Korthuis of Northwest Immigrant Rights Project, Judy Rabinovitz, Anand Balakrishnan, Michael K.T. Tan and Stephen B. Kang of the American Civil Liberties Union Foundation, Emma C. Winger of American Immigration Council, and Kristin Macleod-Ball and Trina A. Realmuto of National Immigration Litigation Alliance.

The government is represented by Bichngoc T. Do, Alanna T. Duong and William C. Peachey of the U.S. Department of Justice.

The case is Padilla et al. v. U.S. Immigration and Customs Enforcement et al., case number 24-2801, in the U.S. Court of Appeals for the Ninth Circuit.

--Editing by Nick Siwek.

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