Mendez v. Field Office Director et al

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
FADI NAYELI MORALES MENDEZ,
Petitioner,
v.
FIELD OFFICE DIRECTOR, U.S.
Immigration & Customs Enforcement;
Albany Field Office; DAVID FAVRO, in his
official capacity as Sheriff/Warden, Clinton
County Correctional Facility; KRISTI NOEM, in
her official capacity as Secretary of Homeland
Security, TODD LYONS, in his official capacity
as Acting Director, U.S. Immigration and Customs
Enforcement; and PAMELA BONDI, in her
official capacity as Attorney General,
Respondents.
9:26-cv-337
(ECC)
Matthew K. Borowski, Esq., for Petitioner
David M. Katz, Assistant United States Attorney, for Federal Respondents
Hon. Elizabeth C. Coombe, United States District Judge:
MEMORANDUM DECISION AND ORDER
On February 18, 2026, Petitioner Fadi Nayeli Morales Mendez (Mendez), a noncitizen who
has been present in the United States since August 2024, was taken into custody by Immigration
and Customs Enforcement (ICE). Petition (Pet.), Dkt. Nos. 1 ¶ 1; 9-4 at 2.1 On March 3, 2026,
while Petitioner was detained at the Clinton County Correctional Facility in Plattsburgh, New
York, she filed a petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2241. Pet. ¶¶ 1, 6,
10. Petitioner seeks immediate release, or in the alternative, a bond hearing, and attorney’s fees
1 Page numbers refer to the pagination generated by ECF, unless otherwise noted.
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and costs under the Equal Access to Justice Act, as amended, 28 U.S.C. § 2412. Id. at 12-13; Dkt.
No. 10 at 9.
On March 3, 2026, the same day that the petition was filed, the Court issued an order
directing Respondents to show cause why the petition should not be granted, setting a briefing
schedule, scheduling oral argument for March 13, 2026, and prohibiting Respondents from moving
Petitioner outside the Northern District of New York while the petition is pending. Dkt. No. 2.
This injunction remains in effect and shall remain in effect following this memorandum decision
and order. The petition is fully briefed, Dkt. Nos. 1, 9, 10, and oral argument was held on March
13, 2026.
I. 	Background
Petitioner, a citizen of Guatemala, entered the United States without inspection on August
13, 2024, near El Paso, Texas. 	Pet. ¶ 1. 	On August 16, 2024, she was released on her own
recognizance and served with an I-862 Notice to Appear stating that she was subject to removal
pursuant to Section 212(a)(6)(A)(i) of the Immigration and Nationality Act. Dkt. No. 9-4 at 9, 13.
Petitioner later filed an application for asylum. Pet. ¶ 1. At a March 13, 2026 hearing, counsel for
Mendez represented that asylum application is still pending.
On February 18, 2026, Petitioner reported to the ICE Enforcement and Removal
Operations Sub Office in Albany, and she was taken into custody. Pet. ¶ 1; Dkt. No. 9-4 at 2. On
the same day, she was served with a Warrant for Arrest of Alien, I-200 that cites Section 236 (8
U.S.C. § 1226) and 287 (8 U.S.C. §1357) of the Immigration and Naturalization Act, but does not
mention Section 235 (8 U.S.C. §1225(b)(2)(A)). 	Dkt. No. 9-4 at 4. 	ICE transferred her to the
Clinton County Correctional Facility, and Petitioner remains detained there. Pet. ¶ 6.
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II. 	JURISDICTION
“‘28 U.S.C. § 2241 authorizes a district court to grant a writ of habeas corpus whenever a
petitioner is ‘in custody in violation of the Constitution or laws . . . of the United States.’’” Gaspar
v. Akshar, 9:26-cv-118 (BKS), Dkt. No. 13, at 4 (N.D.N.Y. Feb. 17, 2026) (quoting Wang v.
Ashcroft, 320 F.3d 130, 140 (2d Cir. 2003) (quoting 28 U.S.C. § 2241(c)(3)). 	In addition,
“‘[f]ederal courts have jurisdiction to hear habeas corpus claims by non-citizens challenging the
constitutionality of their detention.’” Id. at 5 (quoting Lopez v. Sessions, No. 18-cv-4189, 2018
WL 2932726, at *6 (S.D.N.Y. June 12, 2018) (citing Demore v. Kim, 538 U.S. 510, 516-17
(2003)).
III. 	DISCUSSION
A. Statutory Basis for Detention
Petitioner argues that the applicable statute for her detention is 8 U.S.C. § 1226(a).
“Detention pending adjudication of removal under Section 1226 is discretionary and affords
noncitizens detained thereunder the right to an initial determination as to eligibility for release and
the opportunity for a bond hearing upon detention.” Tumba Huamani v. Francis, No. 25-cv-8110,
2025 WL 3079014, at *2 (S.D.N.Y. Nov. 4, 2025). In contrast, Respondents argue that 8 U.S.C.
§ 1225(b)(2)(A) applies. Detention under that provision is mandatory “with rare exceptions not
relevant here.” Cardenas v. Almodovar, No. 25-cv-9169, 2025 WL 3215573, at *1 (S.D.N.Y Nov.
18, 2025).
The issue of which provision applies to noncitizens already in the United States, like
Petitioner, has been the subject of habeas petitions filed throughout the country. 	There is no
binding authority from the Supreme Court or the Second Circuit, and the two Circuits that
considered this issue have reached different conclusions. 	The Fifth Circuit agreed with the
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Government’s position. 	Buenrostro-Mendez v. Bondi, No. 25-20496, 2026 WL 323330 (5th Cir.
Feb. 6, 2026). But, in the context of whether the Government was likely to succeed on the merits
of its argument that noncitizens arrested by ICE without a warrant could be held under Section
1225(b)(2)(A), the Seventh Circuit disagreed with the Government’s position. Castanon-Nava v.
U.S. Dep’t of Homeland Sec., 161 F.4th 1048, 1062 (7th Cir. 2025).
Although some district courts have agreed with the Government’s position, a substantial
majority have not. 	See Barco Mercado v. Francis, No. 25-cv-6582, 2025 WL 3295903, at *4
(S.D.N.Y. Nov. 26, 2025) (explaining that the Government’s position “has been challenged in at
least 362 cases in federal district courts” and the “challengers have prevailed, either on a
preliminary or final basis in 350 of those cases decided by over 160 different judges sitting in about
fifty different courts spread across the United States.”). 	Here in the Second Circuit, an
overwhelming majority of district courts have adopted the majority position. 	See Chen v.
Almodovar, 25 Civ. 9670, 2026 WL 100761, at *14 (S.D.N.Y. Jan. 14, 2026) (acknowledging in
a case adopting the minority position that “the overwhelming majority of judges in [the Southern
District of New York] and around the country to consider the issue have reached a contrary
conclusion” and that its holding “puts it in the minority of those courts in the Second Circuit to
have considered the question”); see also Cardenas, 2025 WL 3215573, at *1 (“by this Court’s
count, there are scores of decisions—in this Circuit and beyond—on the Section 1226(a) side of
the split”) (collecting cases). 	In addition, judges in this district have agreed with the majority
position. See Noguez v. Brophy et al., Case No. 26-cv-30, Dkt. No. 14 at 6 (N.D.N.Y. Feb. 13,
2026) (agreeing with the majority position and noting that the “other Northern District Judges . . .
also reached the same conclusion”) (D’Agostino, J.); Gaspar, Dkt. No. 13 at 12 (agreeing with the
majority position) (Sannes, C.J.); Alvarez v. Philips et al., Case No. 26-cv-58, Dkt. No. 11 at 6
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(N.D.N.Y. Feb. 17, 2026) (same) (Brindisi, J.); Aguiar Olivares v. ICE Custodian and Broome
County Correctional Facility, Case No. 26-cv-203, Dkt. No. 18 at 18 (same) (Nardacci, J.).
This Court agrees with the majority position and concludes that Petitioner, who was
released into the United States on her own recognizance approximately 18 months before her
February 2026 arrest, was not seeking admission when she was arrested and that, for the persuasive
reasons articulated by other district courts, Section 1226(a), not Section 1225(b)(2)(A) applies.
See, e.g. Gaspar, Dkt. No. 13, at 9-15 (collecting cases); Cardenas, 2025 WL 3215573, at *2
(relying on “the thorough and well-reasoned analysis of the issue” by the judges in, among others
cases, Tumba Huamani, 2025 WL 3079014, at *2-5; Lopez Benitez v. Francis, 795 F. Supp. 3d
475, 483-91 (S.D.N.Y. 2025). 	This “conclusion is compelled by the text of Section 1225 itself,”
“by the context and ‘overall statutory scheme,’” and “by the amendment history of Section 1226,
including [the Laken Riley Act] amendment enacted just months ago.” Cardenas, 2025 WL
3215573, at *2 (citations omitted). See also Gaspar, Dkt. No. 13 at 12-15; Quituizaca v. Bondi,
No. 25-cv-6527, 2025 WL 3264440, at *3-*4 (W.D.N.Y. Nov. 24, 2025). As a result, under the
circumstances of this case, the Court finds that Petitioner “may only be subject to detention as a
matter of discretion” under Section 1226(a). 	Singh v. Maldonado, No. 26-cv-19, 2026 WL
233216, at *8 (E.D.N.Y. Jan. 29, 2026).
B. 	Required Due Process
The next question is whether Petitioner’s detention violates due process. Noncitizens, like
Petitioner, are protected by the Fifth Amendment’s Due Process Clause guaranteeing that they
cannot be deprived of liberty “without due process of law.” Zadvydas v. Davis, 533 U.S. 678, 693
(2001). 	“Freedom from imprisonment—from government custody, detention, or other forms of
physical restraint—lies at the heart of the liberty that Clause protects.” Id. at 690. In addition, that
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liberty interest protects people from detention without “notice of the case against him and
opportunity to meet it.” 	Matthews v. Eldridge, 424 U.S. 319, 348 (1976). 	“Habeas review is
available to challenge ‘the lawfulness of detention when it is first imposed’ as well as ‘to challenge
whether, at some point, an ongoing detention has become unlawful.’” Gaspar, Dkt. No. 13 at 15
(quoting Velasco Lopez v. Decker, 978 F.3d 842, 850 (2d Cir. 2020)). “‘The Supreme Court has
been unambiguous that executive detention orders, which occur without the procedural protections
required in courts of law, call for the most searching review.’” 	Id. at 15-16 (quoting Velasco
Lopez, 978 F.3d at 850 (additional citation omitted)).
Courts apply the three-factor balancing test articulated in Matthews: “(1) ‘the private
interest that will be affected by the official action’; (2) ‘the risk of an erroneous deprivation of
such interest through the procedures used, and the probative value, if any, of additional or
substitute procedural safeguards’; and (3) ‘the Government’s interest, including the function
involved and the fiscal and administrative burdens that the additional or substitute procedural
requirement would entail.’” Gaspar, Dkt. No. 13 at 16 (quoting Velasco Lopez, 978 F.3d at 850)
(in turn quoting Matthews, 424 U.S. at 335).
Regarding the first factor, Petitioner has established a liberty interest in being released from
imprisonment. See Crespo Tacuri v. Genalo, No. 25-cv-6896, 2026 WL 35569, at *7 (E.D.N.Y.
Jan. 6, 2026) (concluding that Petitioner had a “cognizable private interest in being freed from
unlawful detention”) (citing, among others, Hamdi v. Rumsfeld, 542 U.S. 507, 529 (2004) (“[T]he
most elemental of liberty interests [is] the interest in being free from physical detention by one’s
own government.”)).
The Federal Respondents argue that “it is not a violation of 1226(a) or due process to detain
a Petitioner pending the outcome of a bond hearing.” Dkt. No. 9 at 20. 	But an “individualized
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custody determination” is required by § 1226(a) and its implementing regulations. 	Rodriguez-
Acurio v. Almodovar, No. 2:25-cv-6065, 2025 WL 3314420, at *29 (E.D.N.Y. Nov. 28, 2025)2
(quoting Lopez Benitez, 795 F. Supp. 3d at 492); see also Hyppolite v. Noem, 808 F. Supp. 3d 474,
485 (E.D.N.Y. 2025) (“the discretionary authority in § 1226(a) requires an individualized bond
determination before a noncitizen may be taken into custody”) (citing Velesaca v. Decker, 458 F.
Supp. 3d 224, 241 (S.D.N.Y. 2020) (noting that the government did “not dispute that 8 U.S.C. §
1226(a) and its implementing regulations require ICE officials to make an individualized custody
determination”)).
Section 1226(a) states that “[o]n a warrant issued by the Attorney General,” a noncitizen
“may be arrested and detained pending a decision on” removal of the noncitizen and that the
Attorney General “may continue to detain the arrested alien” or “may release” the noncitizen on
“bond” or “conditional parole.” 8 U.S.C. § 1226(a). In addition, “the regulations implementing
Section 1226(a) delegate to DHS officers the authority to grant bond or conditional parole, and
pursuant to such authority, a DHS officer must make an individualized determination as to whether
detention is appropriate based on two factors—whether the noncitizen is (1) a ‘danger to property
or persons’ and (2) is ‘likely to appear for any future proceeding.’” Rodiguez-Acurio, 2025 WL
3314420, at *28 (quoting 8 C.F.R. § 1236.1(c)(8) and citing Lopez Benitez, 795 F. Supp. 3d at
493). 	Further, the “noncitizen has an ‘opportunity to appeal a detention decision’ by the DHS
officer who conducted this individualized assessment ‘to an immigration judge who then conducts
their own assessment of the noncitizens’ flight risk and dangerousness, among other factors.’” Id.
2 The Federal Respondents argue that “the warrant here . . . renders immediate release inappropriate
here and distinguishes Rodriguez-Acurio[.]” Dkt. No. 9 at 16. 	In fact, a warrant was issued in
Rodriguez-Acurio. 	See 2025 WL 3314420 at *5 (explaining that petitioner “was served with a
Warrant for Arrest of Alien, Form I-200. . . .”).
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(quoting Lopez Benitez, 795 F. Supp. 3d at 493 (citing 8 C.F.R. § 1003.19(d)). 	“Accordingly,
Section 1226(a) and its implementing regulations vest DHS with ‘broad authority to arrest and
detain noncitizens, but due process must account for the wide discretion that Section 1226(a) vests
in the Government to arrest any person in the United States suspected of being removable’
especially in light of the individualized custody determination that Section 1226(a) and its
implementing regulations require.” Rodriguez-Arcurio, 2025 WL 3314420, at *29 (quoting Lopez
Benitez, 795 F. Supp. 3d at 492). 	Petitioner “therefore has a weighty private interest in being
granted parole or bond under Section 1226(a) pending removal proceedings.” Id.
Regarding the second factor, as the Federal Respondents do not dispute, Petitioner did not
have an opportunity to post bond or argue for release on conditions. In addition, there is nothing
in the record indicating that (1) there were changed circumstances between when she was released
on her own recognizance into the United States and when she was arrested that support the change
in her detention status, (2) Petitioner is currently a risk of flight or a danger to the community, or
(3) anyone considered whether, given her specific situation, Mendez was a risk of flight or a danger
to the community. As a result, there is a high risk of erroneous deprivation of Petitioner’s liberty.
See Gaspar, Dkt. No. 13 at 17 (“The risk of erroneous deprivation of Petitioner’s liberty is
therefore high.”) (citing Valdez v. Joyce, 803 F. Supp. 3d 213, 218 (S.D.N.Y. 2025) (“Petitioner’s
re-detention without any change in circumstances or procedure establishes a high risk of erroneous
deprivation of his protected liberty interest.”) and Singh, 2026 WL 233216, at *9 (“finding ‘the
risk of erroneous deprivation of Petitioner’s liberty interest’ was ‘high’ where it was undisputed
‘that no individualized determination was made prior to or contemporaneously with the decision
to detain Petitioner in December 2025, and there was no change in circumstances from the time
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DHS released Petitioner on his own recognizance in March 2024 to his re-arrest and detention in
December 2025”)).
Regarding the third factor, despite the Government’s “interests in ‘ensuring the appearance
of aliens at future immigration proceedings’ and ‘preventing danger to the community,’” the Court
concludes that interest here is low given that there is no evidence that Petitioner is a danger to the
community or a flight risk. Gaspar, Dkt No. 13 at 17 (citing Crespo Tacuri, 2026 WL 35569 at
*7 (“[T]he government’s interest in continued detention is slight insofar as petitioner was detained
without an individualized custody determination that evaluated dangerousness and flight risk or
any articulated change in circumstances.”)).
The Court therefore finds that Petitioner’s detention violates her rights under the Due
Process Clause of the Fifth Amendment.
C. 	Remedy
The appropriate remedy is release. See Gaspar, Dkt. No. 13 at 18-19 (collecting cases);
Cardenas, 2025 WL 3215573, at *3 (citing Lopez Benitez, 795 F. Supp. 3d at 498-99 (reaching
that result by applying the Matthews test); Tumba Huamani, 2025 WL 3079014, at *8-9 (reaching
that result, but concluding that the Matthews test does not apply)); see also Rodriguez-Acurio,
2025 WL 3314420, at *32-33 (concluding that where ICE detained the Petitioner “under the wrong
statute and without any notice or opportunity to be heard, much less the procedures required under
Section 1226(a),” then “a post-deprivation bond hearing before a DHS officer or even an
immigration judge would provide no genuine opportunity for relief because the detention without
adequate pre-deprivation procedures has already been carried out.”)
In addition, Respondents are enjoined from denying Petitioner bond in any subsequent
proceeding on the grounds that she must be detained under 8 U.S.C. §1225(b)(2)(A) absent a
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change in relevant circumstances. 	See Rodriguez-Acurio, 2025 WL 3314420, at *32-33
(concluding that “[t]his additional relief is necessary in order to ensure that the release of
[Petitioner] pursuant to this Opinion and Order is not rendered meaningless” and, “[a]s a result,
the relief ordered here falls within the ‘core of habeas.’”) (quoting Dep’t of Homeland Sec. v.
Thuraissigiam, 591 U.S. 103, 119 (2020)).
For these reasons, it is
ORDERED that the Petition for a writ of habeas corpus, Dkt. No. 1, is GRANTED; and
it is further
ORDERED that Respondents shall immediately release Petitioner Fadi Nayeli Morales
Mendez from custody; and it is further
ORDERED that Respondents shall certify compliance with this Order by filing a status
report by 5 p.m., on March 17, 2026; and it is further
ORDERED that pending the issuance of any final removal order against Petitioner Fadi
Nayeli Morales Mendez, Respondents are enjoined from denying her bond in any subsequent
proceeding on the basis that she must be detained pursuant to 8 U.S.C. § 1225(b)(2)(A) absent a
change in relevant circumstances; and it is further
ORDERED that Petitioner’s request for reasonable attorney’s fees and costs under the
Equal Access to Justice Act is GRANTED and any request for such fees and costs shall be filed
by March 30, 2026, and any response shall be filed by April 10, 2026; and it is further
ORDERED that the Clerk of the Court enter judgment accordingly and close this case.
IT IS SO ORDERED.
Dated: March 16, 2026
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