Hernandez Villasmil v. Blanche et al

1
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
ERICKSON JHONAIKERHT HERNANDEZ
VILLASMIL,
Petitioner,
vs. 	9:26-CV-713
(MAD)
TODD BLANCHE, JAMES BAUSCH, PHILIP
RHONEY, TODD LYONS, and MARKWAYNE
MULLIN,
Respondents.
____________________________________________
APPEARANCES: 	OF COUNSEL:
BOROWSKI WITMER 	MATTHEW BOROWSKI, ESQ.
IMMIGRATION LAWYERS
4343 Union Rd
Buffalo, New York 14225
Attorney for Petitioner
OFFICE OF THE UNITED 	KAREN F. LESPERANCE, AUSA
STATES ATTORNEY
James T. Foley U.S. Courthouse
445 Broadway, Room 218
Albany, New York 12207
Attorney for Respondents
Mae A. D'Agostino, U.S. District Judge:
MEMORANDUM-DECISION AND ORDER
I. INTRODUCTION
On April 13, 2026, Petitioner Erickson Jhonaikerht Hernandez Villasmil filed a petition
for habeas corpus seeking relief from his detention by the Department of Homeland Security's
("DHS") Immigration and Customs Enforcement Office ("ICE"). See Dkt. No. 1. Petitioner
names the following individuals as Respondents: Acting U.S. Attorney General Todd Blanche,
Case 9:26-cv-00713-MAD Document 5 Filed 05/05/26 Page 1 of 18

2
Deputy Field Office Director of the ICE Buffalo Field Office James Bausch, Deputy Field Officer
Director of the Buffalo Field Officer Philip Rhoney, ICE Acting Director Todd Lyons, and
Secretary of Homeland Security Markwayne Mullin (collectively, "Respondents" or "the
Government"). See id.
Petitioner was detained by ICE on the same day that he filed his petition: April 13, 2026.
He requests immediate release or an order requiring Respondents to hold a hearing pursuant to 8
U.S.C. § 1226(a) with the Government bearing the burden of proof as to why Petition must
remain detained pending his immigration proceedings. See id. at 18. Respondents oppose the
Petition. See Dkt. No. 3. Petitioner filed a reply. See Dkt. No. 4.
For the following reasons, the Petition is granted.
II. BACKGROUND
The facts set forth in the petition are straight forward: Petitioner, a citizen of Venezuela,
"entered the United States lawfully on September 2, 2023[,] at or near Brownsville, Texas
pursuant to the 'CBP One' program and was released into the United States on humanitarian
parole." Dkt. No. 1 at ¶ ¶ 1-2. He was released on parole as neither a flight risk nor danger to the
community. See id. at ¶ 3. Petitioner filed an application for asylum and was issued a work
permit. See id. at ¶ 5. He was detained by ICE on April 13, 2026, in Troy, New York. 	Petitioner
asserts that his detention falls under 8 U.S.C. § 1226(a) of the Immigration and Nationality Act
("INA"). See id. at ¶ 28. Petitioner argues that "the mandatory detention provision of §
1225(b)(2) does not apply to people like Petitioner, who has already entered and was residing in
the United States at the time he was apprehended." Id. at ¶ 41.
Respondents provided more background information in their response and disagree about
the applicable statutory authority. Respondents explain that the CBP One mobile application was
Case 9:26-cv-00713-MAD Document 5 Filed 05/05/26 Page 2 of 18

3
launched in October of 2020. See Dkt. No. 3 at 10. It was made available to individuals seeking
to enter this country through a port of entry under a specific Public Health Order. See id. The
Public Health Order was eventually terminated, but CBP One was maintained "as a 'mechanism
for noncitizens to schedule a time to arrive at [ports of entry] along the [Southwest Border], to
allow an increasing number of migrants who may wish to claim asylum to request an available
time and location to present and be inspected and processed at certain'" ports of entry. Id.
(citation omitted).
Respondents state that two executive orders were then signed by the President on January
20, 2025. See id. at 11. Respondents explained that the first executive order directed
the Secretary of State, the Attorney General, and the Secretary of
Homeland Security to take actions including "ensuring that the
parole authority under section 212(d)(5) of the INA (8 U.S.C. §
1182(d)(5)) is exercised on only a case-by-case basis in accordance
with the plain language of the statute, and in all circumstances only
when an individual alien demonstrates urgent humanitarian reasons
or a significant public benefit derived from their particular
continued presence in the United States arising from such parole,"
and "ensuring that employment authorization is provided in a
manner consistent with section 274A of the INA (8 U.S.C. §
1324a), and that employment authorization is not provided to any
unauthorized alien in the United States."
Id. (quoting Executive Order 14159 § 16(a) & (c); 90 Fed. Reg. 8443, 8446 (Jan. 20, 2025)).
The second executive order "directed the Secretary of Homeland Security to '[c]ease using the
"CBP One" application as a method of paroling or facilitating the entry of otherwise inadmissible
aliens into the United States,' and to '[t]erminate all categorical parole programs that are contrary
to the policies of the United States.'" Id. (quoting Executive Order 14165 § 7(a) & (b), 90 Fed.
Reg. 8467, 8468 (Jan. 20, 2025)). According to Respondents, "[t]he [executive orders]
Case 9:26-cv-00713-MAD Document 5 Filed 05/05/26 Page 3 of 18

4
themselves did not terminate parole or take any other action concerning parole, but rather
exhorted DHS to examine and modify its processes as appropriate to fit these principles." Id.
The same day that the executive orders were issued, "Acting Secretary of Homeland
Security Benjamine Huffman issued a directive to end 'the broad abuse of humanitarian parole
and return[] the program to a case-by-case basis.'" Id. at 11 (quoting Statement from a DHS
Spokesperson on Directives Expanding Law Enforcement and Ending the Abuse of Humanitarian
Parole, Jan. 21, 2025, https://www.dhs.gov/news/2025/01/21/statement-dhs-spokesperson-
directives-expanding-law-enforcement-and-ending-abuse). Three days later, on January 23, 2025,
Acting Security Huffman issued a memorandum authorizing the DHS to alter any parole program
that was inconsistent with his previous directive. See id. at 12. The CBP One application was
discontinued in January of 2025.
Approximately two and a half months later, in April of 2025, DHS sent parole termination
notices to individuals who had been paroled into the United States after using the CBP One
application. See id. at 13. DHS terminated Petitioner's parole on April 18, 2025. See Dkt. No. 3-
1 at ¶ 6. In a document provided by Respondents, U.S. Customs and Border Protection indicated
"DHS has exercised its discretion and terminated this parole on 4/18/2025." Dkt. No. 3-2 at 13.
One year later, on April 12, 2026, immigration officials issued a warrant for petitioner's
arrest through a Form I-200. See Dkt. No. 3-1 at ¶ 7. Respondents state that ICE Officers
observed Petitioner leave his "last known residence." Dkt. No. 3 at 8. The Deportation Officer
who completed the Record of Deportable/Inadmissible Alien on April 13, 2026, stated that
Petitioner's "current address [is] in Newark NJ and [he] failed to update his new address in Troy .
. . ." Dkt. No. 3-2 at 10. Neither party explains why or how ICE officers located Petitioner in
Troy, New York a year after his parole was terminated.
Case 9:26-cv-00713-MAD Document 5 Filed 05/05/26 Page 4 of 18

5
Nevertheless, on April 12, 2026, ICE officers "conducted surveillance and observed"
Petitioner leave an address with laundry and walk to the laundry mat. See Dkt. No. 3-2 at 10.
The officers positively identified Petitioner. See id. The next day, ICE officers "conducted a
targeted enforcement operation" and observed Petitioner leaving his house and getting into his
vehicle. Id. The officers stopped Petitioner's vehicle and requested his identification. See Dkt.
No. 3-1 at ¶ 8. Petitioner identified himself as "Erickson" and informed the officers "that he had
entered the United States illegally, and . . . was currently in immigration proceedings." Id.
Petitioner was 19 years old when he was paroled into the United States on September 13,
2023. See Dkt. No. 3-2 at 1. Petitioner has no criminal history. See Dkt. No. 1 at ¶ 4; Dkt. No. 3-
2 at 2, 9, 11. He is employed by Wendy's fast food. See Dkt. No. 3-2 at 12. Petitioner has an
immigration court hearing scheduled for June 2, 2027, in Newark, New Jersey. See id. at 11.
III. DISCUSSION
The Government argues Petitioner's detention is not violative of the INA and does not
raise constitutional due process concerns because detention was mandatory when his parole was
terminated and he had been detained for only a few hours when he filed the petition. See Dkt. No.
3 at 7-8. The Government relies on 8 U.S.C. § 1182(d)(5)(A), which states as follows:
The Secretary of Homeland Security may . . . in his discretion
parole into the United States temporarily under such conditions as
he may prescribe only on a case-by-case basis for urgent
humanitarian reasons or significant public benefit any alien
applying for admission to the United States, but such parole of such
alien shall not be regarded as an admission of the alien and when
the purposes of such parole shall, in the opinion of the Secretary of
Homeland Security, have been served the alien shall forthwith
return or be returned to the custody from which he was paroled and
thereafter his case shall continue to be dealt with in the same
manner as that of any other applicant for admission to the United
States.
Case 9:26-cv-00713-MAD Document 5 Filed 05/05/26 Page 5 of 18

6
8 U.S.C.A. § 1182(d)(5)(A) (emphasis added); see Dkt. No. 3 at 13-14. Respondents argue that
"since Petitioner was granted parole upon his arrival in the United States, his status when his
parole ended reverted to that of an arriving alien seeking admission." Dkt. No. 3 at 14. In turn,
they contend that Petitioner's circumstances are governed by 8 U.S.C. § 1225(b)(2)(A) which
mandates the detention. See id. at 14-18. Respondents also contend that even if Petitioner's
detention is not mandatory, it does not violate any constitutional due process guarantees because
his status is that of a person "stopped at the border" and he had been detained for mere hours
before he filed the petition. Id. at 18.
In his reply, Petitioner cites recent cases from other judges in the Northern District as well
as other courts in the Second Circuit to support his argument "that post-parole re-detention falls
under 1226(a)." Dkt. No. 4 at 2. Petitioner contends immediate release is the appropriate remedy
for "the unlawful detention under § 1225(b) and the failure to provide an individualized
bond hearing . . . ." Id. at 4.
A. 	Statutory Authority
The Second Circuit discussed the humanitarian parole provision of the INA in Ibragimov
v. Gonzales, 476 F.3d 125 (2d Cir. 2007). The Second Circuit explained that "Section
212(d)(5)(A) of the INA provides the Attorney General with discretion to parole into the United
States certain aliens who apply for admission." Id. at 134 (citing 8 U.S.C. § 1182(d)(5)(A)).
"The terms of th[e] statute reflect the well-settled principle that Congress did not intend for parole
of an alien to constitute an alien's legal entry or admission to the United States." Id. (citing Leng
May Ma v. Barber, 357 U.S. 185, 190 (1958); United States ex rel. Kordic v. Esperdy, 386 F.2d
232, 235 (2d Cir. 1967)). "Instead, parole is a means by which the government allows aliens who
have arrived at a port-of-entry to temporarily remain in the United States pending the review and
Case 9:26-cv-00713-MAD Document 5 Filed 05/05/26 Page 6 of 18

7
adjudication of their immigration status." Id. The Second Circuit stated that "[a]lthough paroled
aliens physically enter the United States for a temporary period, they nevertheless remain
constructively detained at the border, i.e. legally unadmitted, while their status is being resolved
by immigration officials." Id.
In its response to the petition, the Government acknowledges that the Ibragimov court
deferred to immigration agency interpretations of the INA under Chevron deference. See Dkt.
No. 3 at 15; see also Ibragimov, 476 F.3d at 135 (citing Matter of Oseiwusu, 22 I & N Dec. 19,
19-20 (BIA 1998) (holding that aliens returning pursuant to a grant of advance parole are
"arriving aliens")). However, as the Government notes, the Supreme Court overruled Chevron in
2024. Id. at 16 (citing Loper Bright Ent. v. Raimondo, 603 U.S. 368, 394 (2024)). And, "even in
Ibragimov, where the Second Circuit deferred to the agency interpretation of 'arriving alien' . . ., it
nonetheless described humanitarian parole under Section 1182(d)(5)(A) as 'a means by which the
government allows aliens who have arrived at a port-of-entry to temporarily remain' in the
country even as the parolee has not been 'admitted' to the United States." Rodriguez-Acurio v.
Almodovar, 811 F. Supp. 3d 274, 307–08 (E.D.N.Y. 2025) (citing Ibragimov, 476 F.3d at 134)
(emphasis omitted). As a result, and as Respondents state, "many district courts have rejected the
agency's definition of 'arriving alien' . . . as including aliens whose Section 1182(d)(5)(A) parole
has expired." Dkt. No. 3 at 16 (citing Rodriguez-Acurio, 811 F. Supp. 3d at 302; Covelli-
Chaparro v. Bondi, 2026 WL 118842, *6 (E.D.N.Y. Jan. 15, 2026); Qasemi v. Francis, No. 25-
CV-10029, 2025 WL 3654098, at * 6 (S.D.N.Y. Dec. 17, 2025); Ruiz v. Trump, No. 2:26-CV-
00012, 2026 WL 323254, *5 (D. Vt. Feb. 6, 2026)).
On March 11, 2026, the Honorable Anne M. Nardacci addressed this issue in a nearly
indistinguishable case. In Olivares v. ICE Custodian, No. 9:26-CV-203, 2026 WL 686090
Case 9:26-cv-00713-MAD Document 5 Filed 05/05/26 Page 7 of 18

8
(N.D.N.Y. Mar. 11, 2026), Judge Nardacci found "meritless the Government's position that
Petitioner—who, more than two years ago, made an appointment with immigration authorities,
presented himself at a port of entry, was paroled into the country, and whose asylum application
remains pending—is subject to mandatory detention as if he had been arrested attempting to
unlawfully cross the border." Id. at *7. Judge Nardacci held that Olivares was being detained
pursuant to § 1226(a) and that his detention was unconstitutional and ordered his immediate
release. See id. at *8.1
The Honorable Elizabeth C. Coombe also recently ordered that a petitioner be
immediately released from detention after he had been paroled into the United States, his parole
was terminated, and he was subsequently detained without justification beyond the incorrectly
asserted legal authority granted to ICE under § 1225. See Arce v. Bondi, 9:26-CV-501, Dkt. Nos.
6, 11
The majority of federal district courts addressing the issue have concluded the same—that
the mandate in 8 U.S.C. § 1182(d)(5)(A), which requires a noncitizen to "be returned to the
custody from which he was paroled" "when the purposes of such parole shall, in the opinion of
the Secretary of Homeland Security, have been served," requires the petitioner to "be treated just
as the INA would treat any noncitizen previously granted parole and living in the United States."
Pereira v. Dedos, No. 1:26-CV-1141, 2026 WL 1134030, *2 (D.N.M. Apr. 27, 2026); see, e.g.,
Imamov v. Warden, No. 26-CV-2204, 2026 WL 1164682, *6 (E.D. Pa. Apr. 29, 2026); Rivera v.
Blanche, No. 2:26-CV-03892, 2026 WL 1153665, *4 (D.N.J. Apr. 29, 2026); Zamora v. Mullin,
1 The only meaningful difference between Petitioner and Olivares is that Petitioner has never been
arrested for a crime whereas, before being detained by ICE, Olivares was arrested by local law
enforcement officers and charged with driving while intoxicated. See Olivares, 2026 WL
686090, at *3. As discussed later in this decision, Petitioner's lack of criminal history makes the
due process violation that much worse.
Case 9:26-cv-00713-MAD Document 5 Filed 05/05/26 Page 8 of 18

9
No. 26-CV-00538, 2026 WL 1026810, *3-4 (D. Colo. Apr. 16, 2026); Gomez-Talero, No. 26-
CV-1625, 2026 WL 926145, *2 (E.D.N.Y. Apr. 6, 2026); Cabrera-Lopez v. Hyde, No. 2:26-CV-
00017, 2026 WL 540131, *9 (D. Vt. Feb. 26, 2026); Mohd v. Noem, No. 2:26-CV-680, 2026 WL
363525 , *3 (E.D.N.Y. Feb. 9, 2026).
As one court has stated, "[r]eturning to 'custody' simply means returning to 'the care and
control of [another] for inspection, preservation or security.'" Ontiveros v. Warden, No. 3:26-CV-
632, 2026 WL 1109422, *5 (N.D. Ohio Apr. 24, 2026) (quoting Qasemi, 2025 WL 3654098, in
turn quoting Black's Law Dictionary 390 (7th ed. 1999)). "Thus, § 1182(d)(5)(A)'s mandate that
a[ noncitizen] return to 'the custody from which he was paroled' simply means that the
[noncitizen] must return to the 'care and control' of the Department of Homeland Security." Id.
"It says nothing about the 'status' the [noncitizen] will hold or the detention authority under which
the government will operate once the parolee returns to such care and control." Id.
Moreover, "the parolee's 'physical presence within the United States cannot be said to be
unlawful or illegal' since the parole is authorized by the Attorney General." De Law Cruz v.
Rhoney, No. 25-CV-6699, 2026 WL 891658, *6 (W.D.N.Y. Apr. 1, 2026) (quoting United States
v. Balde, 943 F.3d 73, 84 (2d Cir. 2019)). "Indeed, 'parole has long been understood to constitute
lawful status.'" Id. (citation omitted). "The Supreme Court has confirmed that 'nothing in th[e]
text [of Section 1182(d)(5)(A)] . . . affirmatively authorizes detention,' so the statute is not an
independent authority to detain parolees following the expiration of parole." Id. (quoting Clark v.
Martinez, 543 U.S. 371, 385 (2005)). To the contrary, it provides that, when parole is revoked,
"the alien shall . . . be returned to the custody from which he was paroled and thereafter his case
shall continue to be dealt with in the same manner as that of any other applicant for admission."
Clark, 543 U.S. at 385 (citation omitted). Therefore, "a person who has stayed years beyond the
Case 9:26-cv-00713-MAD Document 5 Filed 05/05/26 Page 9 of 18

10
expiration of his or her term of parole is no different than any other noncitizen who entered
without inspection and was detained while unlawfully present in the country and not seeking
admission." De Law Cruz, 2026 WL 891658, at *6.
INA's regulatory framework supports this conclusion. "Regardless of the type of
termination, once a noncitizen's parole has been terminated, implementing regulations require that
'any order of exclusion, deportation, or removal previously entered shall be executed.'" Coreas v.
Mullin, No. 2:26-CV-591, 2026 WL 1121974, *5 (D. Nev. Apr. 24, 2026) (quoting 8 C.F.R. §
212.5(e)(2)(i)). "'If the exclusion, deportation, or removal order cannot be executed within a
reasonable time, the [noncitizen] shall again be released on parole unless in the opinion of [a DHS
official with authority] the public interest requires that the [noncitizen] be continued in custody.'"
Id. (quoting 8 C.F.R. § 212.5(e)(2)(i)). "Stated differently, unless detention is required for the
timely removal of a noncitizen, continued detention following release on parole must be
supported by individualized assessment by an authorized DHS official." Id. "Otherwise,
implementing regulations require that a noncitizen be returned to humanitarian parole." Id. Here,
Petitioner has not been ordered to be removed. Therefore, "his case shall continue to be dealt
with in the same manner as that of any other applicant for admission." Clark, 543 U.S. at 385
(citation and emphasis omitted). It is likewise possible that he should be placed back on
humanitarian parole. See id.
One day after the Government filed its response in this case, the Second Circuit decided
Cunha v. Freden, No. 25-3141, 2026 WL 1146044 (2d Cir. Apr. 28, 2026). Cunha concerned a
petitioner who had unlawfully entered the country over twenty years before, applied for asylum
and was granted work authorization, and had never been arrested. See id. at *2. The Second
Circuit discussed the relevant statutory scheme governing detention of noncitizens and noted, in
Case 9:26-cv-00713-MAD Document 5 Filed 05/05/26 Page 10 of 18

11
part, that "noncitizens who have been in the United States for more than two years get full
removal proceedings, may be detained, and may be granted release on bond or conditional parole,
. . . unless they have committed certain crimes[.]" Id. at *14 (citing Jennings v. Rodriguez, 583
U.S. 281 (2018), citing in turn 8 U.S.C. § 1226(a)). The Second Circuit affirmed that "'once an
alien enters the country, the legal circumstance changes, . . . whether their presence here is lawful,
unlawful, temporary, or permanent.'" Id. (quoting Zadvydas v. Davis, 533 U.S. 678, 693 (2001)).
The Cunha court was tasked with answering whether a noncitizen is to be considered an
"applicant for admission" and one who is "seeking admission" such that the individual would fall
under § 1225(b)(2)(A)'s mandatory detention provision. Id. at *5. The Second Circuit held in the
negative, determining that the "[p]etitioner may be an 'applicant for admission,' but he is not
'seeking admission'" such that his detention fell under the discretionary provision of § 1226(a).
Id.
This case is not the exact same because Cunha was not granted humanitarian parole into
the United States. However, the Government argues here, like it did in Cunha, that Petitioner is
categorized as "an arriving alien seeking admission"; therefore, his detention falls under § 1225.
Dkt. No. 3 at 14. The Court agrees with the collection of district courts from across the country,
and applies the Second Circuits guidance in Cunha, that, under the present circumstances,
Petitioner is not an "arriving alien"; therefore, he does not fall under the mandatory detention
provision of § 1225.
Section 1182(d)(5)(A) mandates that a noncitizen whose parole has ended "shall continue
to be dealt with in the same manner as that of any other applicant for admission to the United
States." 8 U.S.C.A. § 1182(d)(5)(A). Cunha instructs that "Section 1225(b)(2)(A) does not apply
to [] noncitizens, who are present in the United States after entering the country without
Case 9:26-cv-00713-MAD Document 5 Filed 05/05/26 Page 11 of 18

12
inspection and admission, and who were not apprehended while entering the country or shortly
thereafter." Cunha, 2026 WL 1146044, at *2. In other words, although a noncitizen may be "an
'applicant for admission' within the meaning of Section 1182(d)(5)(A), [that does not
automatically mean the] noncitizen [is] 'arriving in the United States' within the meaning of
Section 1225(b)(1)(A)(i)." Qasemi, 2025 WL 3654098, at *6. That is true where the noncitizen
"has already arrived, was paroled, entered, and has now been present in the United States for over
a year. None of that is changed by the fact that he has not been formally admitted." Id.; see also
Rodriguez-Acurio, 811 F. Supp. 3d at 307 ("[I]t would be illogical to find that [a petitioner] is still
in the process of 'arriving' in the United States when she has been continuously residing in the
United States for more than three years after the expiration of her humanitarian parole"); Carlos v.
Crawford, No. 2:26-CV-12, 2026 WL 1165576, *5 (E.D. Va. Apr. 29, 2026) ("Accordingly, like
a noncitizen who unlawfully enters the United States and is present for years prior to being
detected, . . . after Petitioner's short-term parole ended, Petitioner established a []year [long]
presence prior to being 'rediscovered'") (citation omitted).
Petitioner, who was released into the United States on his own recognizance under
humanitarian parole in 2023 and continued to reside in the United States for one year after his
parole had been terminated, cannot be said to be "seeking admission." Therefore, he is not
subject to mandatory detention pursuant to § 1225(b)(2)(A) and his detention falls under the
discretionary provision of § 1226(a).2
2 The Court must acknowledge that district courts decisions addressing this issue are not
unanimous. There are a few cases that have held that a parolee who is re-detained falls under §
1225, which mandates detention. For example, one court stated that the "[p]etitioner cites to
several district court cases that suggest that any applicant for admission who has been 'living in
the United States outside parole and is later apprehended is detained under section 1226.' . . . But
such an interpretation would violate congressional intent. . . . 	Granting petitioner 'a number of
substantial rights' such as a bond hearing available under § 1226 but not § 1225, solely because
Case 9:26-cv-00713-MAD Document 5 Filed 05/05/26 Page 12 of 18

13
B. 	Due Process
The Government argues Petitioner's detention does not violate due process protections
because "§ 1225(b) does not violate the Constitution" and "Petitioner had been detained for mere
hours when he filed this Petition, and for one week as of this filing, [so] his due process claim is
premature." Dkt. No. 3 at 19.
Respondents are correct that the Supreme Court has "recognize[d]" that six months of
detention is presumptively constitutional. See Zadvydas, 533 U.S. at 701; see also Dkt. No. 3 at
18. 	However, in Zadvydas, the Supreme Court was addressing detention "when an alien has been
found to be unlawfully present in the United States and a final order of removal has been entered"
and "the Government ordinarily secures the alien's removal during a subsequent 90-day statutory
'removal period,' during which time the alien normally is held in custody." Zadvydas, 533 U.S. at
682. The Supreme Court was tasked with "decid[ing] whether this post-removal-period statute
authorizes the Attorney General to detain a removable alien indefinitely beyond the removal
period or only for a period reasonably necessary to secure the alien's removal." Id. The Supreme
Court stated it was "deal[ing] with aliens who were admitted to the United States but subsequently
ordered removed." Id. That is not what the Court is dealing with, here.
The Government contends Petitioner is being detained "pending his removal from the
United States." Dkt. No. 3 at 9. The Government cites to a declaration provided with its response
ICE detained petitioner within the border, would give aliens exactly the 'perverse incentive to
enter at an unlawful rather than a lawful location' that Congress sought to prevent." Ajay Ajay v.
Maldonado, No. 26-CV-0676, 2026 WL 1045420, *3 (E.D.N.Y. Apr. 17, 2026) (citations
omitted); see also Palma v. Arteta, No. 25-CV-9340, 2026 WL 697015, *4 (S.D.N.Y. Mar. 12,
2026) ("[A]n alien . . . 'who has never been lawfully admitted into this country—but has been
living here nonetheless—[is] subject to [detention without a bond hearing] under 8 U.S.C. §
1225(b)(2)(A)'"). Those cases, however, were decided before the Second Circuit weighed in on
the issue in Cunha. Therefore, they do not alter this Court's conclusion.
Case 9:26-cv-00713-MAD Document 5 Filed 05/05/26 Page 13 of 18

14
from an ICE Officer which states that Petitioner remains detained "pending his removal from the
United States. Petitioner is currently in removal proceedings before the immigration court." Dkt.
No. 3-1 at ¶ 10. In a Notice to Appear dated September 13, 2023, Petition was ordered to appear
before an immigration judge on June 2, 2027, "to show why [he] should not be removed from the
United States . . . ." Dkt. No. 3-2 at 3.
Petitioner has been "in removal proceedings" since the day he arrived in the United States.
He has not, however, been ordered to be removed. Respondents have not presented the Court
with any decision from an immigration judge or administrative body ordering Petitioner's
removal. Therefore, his detention is not "pending his removal from the United States," Dkt. No. 3
at 9, and Zadvydas, which dealt with noncitizens who were ordered removed, does not require the
Court to apply the constitutional presumption of reasonableness to Petitioner's detention.
Respondents cite six district court cases to support their argument that the petition is
premature and the Court should dismiss the due process claim. See Dkt. No. 3 at 18-19. None of
the Government's citations are instructive because each petitioner in the cited cases was ordered
to be removed. See Lucce v. Freden, No. 25-CV-6342-MAV, 2025 WL 3214485, *1 (W.D.N.Y.
Nov. 18, 2025) (noting that an immigration judge "ordered him removed to Haiti") De Oliveira
Jimenez v. Searls, No. 22-CV-960, 2023 WL 11134381, *1 (W.D.N.Y. Mar. 2, 2023) ("[T]he
Immigration Judge . . . found De Oliveira Jimenez removable"); Mitchell v. Wolf, No. 20-CV-
1183, 2021 WL 1516450, *1 (W.D.N.Y. Apr. 15, 2021) ("That day, the IJ found Mitchell
removable"); Contreras Blanco v. Garland, No. 21-CV-172, 2021 WL 3667201, *2 (W.D.N.Y.
Aug. 18, 2021) ("Contreras Blanco's removal became final when the Second Circuit denied his
motion for a stay on July 27, 2021"); Bazile v. Garland, No. 20-CV-1819, 2021 WL 9455715, *1
(W.D.N.Y. July 1, 2021) (stating that the immigration judge "ordered him removed to Haiti");
Case 9:26-cv-00713-MAD Document 5 Filed 05/05/26 Page 14 of 18

15
Frederick v. Feeley, No. 19-CV-6090, 2019 WL 1959485, *1 (W.D.N.Y. May 2, 2019) ("An
immigration judge denied [the p]etitioner's motion for cancellation of removal and ordered him
removed").
Accordingly, the Court finds no reason it should not engage in a due process analysis.
Rather, "even if detention never becomes prolonged, the government's interpretation would
require a legitimate rationale, which the government has not attempted to articulate with respect
to noncitizens like Petitioner." Cunha, 2026 WL 1146044, at *22. "Whatever the duration of
detention, it must still 'serve its purported immigration purpose,' . . . which must 'outweigh[ ] the
individual's constitutionally protected interest in avoiding physical restraint[.]'" Id. (quoting
Demore v. Kim, 538 U.S. 510, 527 (2003); Zadvydas, 533 U.S. at 690).
To evaluate whether an individual's due process rights have been violated, courts analyze
(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 probable 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." Black v. Decker, 103 F.4th 133, 151 (2d Cir. 2024)
(quoting Mathews v. Eldridge, 424 U.S. 319, 335 (1976)) (quotation marks omitted).
Here, "'[t]he private interest affected by the official action is the most significant liberty
interest there is—the interest in being free from imprisonment.'" Id. (quoting Velasco Lopez v.
Decker, 978 F.3d 842, 851 (2d Cir. 2020)). "Second, given the absence of process in connection
with Petitioner's detention, the risk of an erroneous deprivation of that Petitioner's liberty interest
is high." Olivares, 2026 WL 686090, at *8; see also Mendez v. Field Off. Dir., No. 9:26-CV-337,
2026 WL 734347, at *4 (N.D.N.Y. Mar. 16, 2026) ("[T]here is nothing in the record indicating
Case 9:26-cv-00713-MAD Document 5 Filed 05/05/26 Page 15 of 18

16
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. . . . [T]here is a high risk of erroneous deprivation of Petitioner's liberty").
Third, the Government argues that the petition is premature because of the length of
Petitioner's detention but does not propose a single interest that it holds in keeping Petitioner
detained. See Dkt. No. 3 at 18-19. The Second Circuit has noted that although "[t]he
Government . . . has an interest in the prompt execution of removal orders. . . . The Government's
interest in the prompt execution of removal orders against individuals who have not yet been
deemed removable is not apparent . . . ." Velasco Lopez, 978 F.3d at 854 n.10.
According to the information presently before the Court, Petitioner has continuously
conducted himself in a lawful manner since entering the United States in September of 2023. He
has no criminal history from before or after his arrival in the United States. He made an
appointment with immigration officials to seek entry into this country. He attended his
appointment and was placed on humanitarian parole. He obtained employment. He applied for
asylum. His parole was terminated in April of 2025, yet Respondents did not detain him until
April of 2026. The Government does not provide a single reason for detaining Petition other than
the fact that his parole had expired one year earlier. Petitioner has not been ordered removed
from the country. His asylum application and removal proceedings remain pending.
In sum, because Respondents detained Petitioner pursuant to the wrong statute, and they
have not provided any other justification for his detention, Petitioner's due process rights were
violated. See Colindres v. Tellez, No. 26-CV-0663, 2026 WL 509493, *3 (E.D.N.Y. Feb. 23,
Case 9:26-cv-00713-MAD Document 5 Filed 05/05/26 Page 16 of 18

17
2026) ("Respondents effectively admit that they did not exercise discretion to re-detain Petitioner;
rather, they detained Petitioner under the belief that his detention was mandatory pursuant to
Section 1225(b)(2)(A)").
As to the appropriate remedy, "habeas is at its core a remedy for unlawful executive
detention. The typical remedy for such detention is, of course, release." Munaf v. Green, 553 U.S.
674, 693 (2008). As the Government has not presented a single reason why Petitioner should be
detained—they have not argued nor presented any evidence that he is a danger to the community
or a flight risk—and Petitioner has remained free in this country, working, law abiding, and
waiting for his June 2027 immigration court hearing, immediate release is the appropriate remedy.
Compare Gunduzalp v. Joyce, No. 26-CV-2330, 2026 WL 948736, *3 (S.D.N.Y. Apr. 8, 2026)
(ordering a bond hearing to be held within three days or the petitioner must be released because
"[t]here is evidence in the record that suggests the Government may have exercised some
discretion in detaining [the p]etitioner. According to the Government, ICE[] received a tip
regarding [the p]etitioner . . ., which 'displayed verifiable, personal knowledge of Petitioner and
his circumstances' and 'contained information that Petitioner posed a threat to national security'"),
with Arango Carmona v. Maldonado, No. 26-CV-2005, 2026 WL 972780, *3 (E.D.N.Y. Apr. 10,
2026) (ordering the petitioner to be immediately released because the "[r]espondents detained [the
p]etitioner pursuant to the wrong statute, without any individualized custody determination, prior
notice, or opportunity to be heard").
IV. CONCLUSION
ORDERED that the Petition for a writ of habeas corpus, Dkt. No. 1, is GRANTED; and
it is further
ORDERED that Petitioner shall be immediately released from custody; and it is further
Case 9:26-cv-00713-MAD Document 5 Filed 05/05/26 Page 17 of 18

18
ORDERED that Respondents shall certify compliance with the Court's order regarding
Petitioner's release no later than Friday, May 8, 2026, at 5:00 P.M.; and it is further
ORDERED that having considered the particular circumstances of this case and Mathews
v. Eldridge, 424 U.S. 319 (1976), Petitioner Erickson Jhonaikerht Hernandez Villasmil shall not
be re-detained without adequate notice to Petitioner and without an opportunity to be heard at a
hearing where the Government will have the burden of showing that his detention is authorized
under 8 U.S.C. § 1226(a) and the burden to demonstrate by clear and convincing evidence that
Petitioner is either a danger to the community or a flight risk; and it is further
ORDERED that pending the issuance of any final removal order against Petitioner
Erickson Jhonaikerht Hernandez Villasmil, Respondents are also enjoined from denying him
bond in any subsequent proceeding on the basis that he must be detained pursuant to 8 U.S.C. §
1225(b), absent a change in relevant circumstances, consistent with this Memorandum-Decision
and Order; and it is further
ORDERED that the Clerk of the Court shall enter judgment in Petitioner's favor and close
this case; and it is further
ORDERED that the Clerk of the Court shall serve a copy of this Memorandum-Decision
and Order on the parties in accordance with the Local Rules.
IT IS SO ORDERED.
Dated: May 5, 2026
Albany, New York
Case 9:26-cv-00713-MAD Document 5 Filed 05/05/26 Page 18 of 18