Sena Gomes v. Wesling et al

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
_______________________________________
)
VINICIUS SENA GOMES, 	)
)
Petitioner, 	)
) 	Civil Action No.
v. 	) 	25-cv-13727-FDS
)
DAVID WESLING, et al., 	)
)
Respondents. 	)
_______________________________________)
MEMORANDUM AND ORDER ON
PETITION FOR WRIT OF HABEAS CORPUS
SAYLOR, J.
This is a habeas petition that concerns the government’s authority to hold a non-citizen
pending removal proceedings.1 Petitioner Vinicius Sena Gomes is a citizen of Brazil who
entered the United States without inspection in 2023. He was encountered by government
agents, detained, released on his own recognizance under § 1226, and placed into removal
proceedings under 8 U.S.C. § 1229a. He then applied for, and was granted, Special Immigrant
Juvenile Status and deferred action.
1 The petition names David Wesling, Boston Field Office Director, U.S. Immigration and Customs
Enforcement and Removal Operations; Antone Moniz, Superintendent, Plymouth County Correctional Facility;
Todd Lyons, Acting Director, U.S. Immigration and Customs Enforcement; Kristi Noem, U.S. Secretary of
Homeland Security; the U.S. Department of Homeland Security; and Pamela Bondi, U.S. Attorney General, as
respondents. Petitioner contends that at the time of filing he was being detained at the ICE field office in
Burlington, Massachusetts, in the custody of Wesling. (Pet. Writ Habeas Corpus ¶¶ 5, 7, Dkt. No. 1). He alleges
that he will be imminently transferred to Plymouth County Correctional Facility, where he would be in the custody
of Moniz. The Court notes that Wesling or Moniz, “as the person[s] who ha[ve] custody over [the petitioner],” are
the only possible proper respondents. 28 U.S.C. § 2242; see Rumsfeld v. Padilla, 542 U.S. 426, 435 (2004) (“[I]n
habeas challenges to present physical confinement—‘core challenges’—the default rule is that the proper respondent
is the warden of the facility where the prisoner is being held, not the Attorney General or some other remote
supervisory official.”). The Court will therefore dismiss the claims against the other respondents.
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On December 5, 2025, he was taken into ICE custody pursuant to the mandatory
detention provision of 8 U.S.C. § 1225(b). Petitioner contends that his detention is governed by
§ 1226(a) and his continued detention without a bond hearing violates the Immigration and
Nationality Act and Administrative Procedure Act, as well as his procedural due-process rights.
He seeks immediate release or, in the alternative, a constitutionally adequate bond hearing.
To be clear, this Court is without the authority to determine whether petitioner should be
removed from the United States; that is a matter for the immigration courts. Nonetheless, and for
the reasons that follow, the Court agrees that petitioner is being detained without lawful
authority, and therefore will order that he be granted a bond hearing before an immigration
judge.
I. 	Background
Vinicius Sena Gomes, a citizen and national of Brazil, entered the United States on or
about October 22, 2023, without inspection. (Pet. Writ Habeas Corpus [“Pet.”] ¶ 13, Dkt. No. 1).
He was apprehended by government agents shortly after entry. (Id.). The next day, immigration
authorities released him on his own recognizance under 8 U.S.C. § 1226 and issued a Notice to
Appear that placed him in removal proceedings under § 1229a. (Id. ¶¶ 14-15; id. Ex. 1-2). He
has remained in the United States since. (Id. ¶ 16). He then applied for Special Immigrant
Juvenile Status, which U.S. Citizenship and Immigration Services approved in March 2024. (Id.
¶ 17; id. Ex. 3). He was granted deferred action for a period of four years. (Id. ¶ 17; id. Ex. 3).
ICE took Sena Gomes into custody on December 5, 2025, during a check-in at the ICE
field office in Burlington, Massachusetts. (Id. ¶ 18 & n.1).
On December 6, 2025, Sena Gomes filed, through counsel, a petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2241. The petition contends that he is being unlawfully detained
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at the field office in Burlington, Massachusetts, and would likely be imminently transferred to
Plymouth County Correctional Facility in Plymouth, Massachusetts. (Id. ¶ 5). On December 8,
2025, this Court ordered respondents to answer or respond to the petition by December 12,
2025.2 Respondents were further ordered to address whether, in light of this Court’s decision in
De Andrade v. Moniz, 2025 WL 2841844 (D. Mass. Oct. 7, 2025) and Dume Rivera et al. v.
Moniz, 2025 WL 3198419 (D. Mass. Oct. 16, 2025), petitioner here was entitled to the same
relief. (Order Concerning Stay of Transfer or Removal 1, Dkt. No. 7).
Respondents submitted an “abbreviated response [that] relies upon, and incorporates by
reference, the legal arguments that Respondents presented in De Andrade.” (Resp’ts
Abbreviated Resp. to Pet. 1, Dkt. No. 7). They maintain that Sena Gomes is an “applicant for
admission” whose mandatory detention is authorized under 8 U.S.C. § 1225(b)(2)(A). (Id. at 3).
The response also “acknowledge[s] that this case is materially similar to De Andrade” and
“[s]hould the Court apply the reasoning of De Andrade, it would likely reach the same result
here.” (Id.).
II. 	Analysis
For the reasons discussed in the Court’s decision in De Andrade v. Moniz, 2025 WL
2841844 (D. Mass. Oct. 7, 2025), and those of many other courts across the country, see
Rodriguez v. Bostock, 2025 WL 2782499, at *1 & n.3 (W.D. Wash. Sept. 30, 2025) (collecting
cases), non-citizens who have been released on their own recognizance into the United States
under 8 U.S.C. § 1226 are entitled to discretionary detention and a bond hearing under § 1226(a),
not mandatory detention under § 1225(b). Because petitioner has already entered and resides in
2 In order to maintain jurisdiction, the Court also ordered that Sena Gomes should not be moved outside of
the District of Massachusetts without prior notice. (Order Concerning Stay of Transfer or Removal 2, Dkt. No. 7).
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the United States, he is not an “applicant for admission” under § 1225, and his detention under
that provision is in violation of law. See 28 U.S.C. § 2241. The Court will therefore grant the
petition. Accordingly, the Court does not reach petitioner’s claim under the Administrative
Procedure Act.
That leaves the question of remedy. Respondents contend that if the Court finds that
petitioner’s detention is subject to 8 U.S.C. § 1226(a) rather than § 1225(b), then the appropriate
remedy is a bond hearing before an immigration judge rather than immediate release. (Resp’ts
Abbreviated Resp. to Pet. 4). Arrest and detention under § 1226(a) ordinarily require “a warrant
issued by the Attorney General.” 8 U.S.C. § 1226(a). Neither the petition nor the response
address whether petitioner’s December 5, 2025 arrest was made pursuant to a warrant.
Nevertheless, “[t]he burden of proof of showing deprivation of rights leading to unlawful
detention is on the petitioner.” Espinoza v. Sabol, 558 F.3d 83, 89 (1st Cir. 2009). Because
petitioner has not established that detention under § 1226(a) is unlawful, the Court will order that
he promptly be granted a bond hearing pursuant to that provision. See Jennings v. Rodriguez,
583 U.S. 281, 306 (2018) (citing 8 C.F.R. §§ 236.1(d)(1)) (explaining that “[f]ederal regulations
provide that aliens detained under § 1226(a) receive bond hearings at the outset of detention”).
III. 	Conclusion and Order
Accordingly, and for the foregoing reasons, the petition for a writ of habeas corpus under
28 U.S.C. § 2241 is GRANTED. Respondents David Wesling, Boston Field Office Director,
U.S. Immigration and Customs Enforcement and Removal Operations, or Antone Moniz, the
warden of the Plymouth County Correctional Facility, whoever is the person having custody of
petitioner as of the entry of this order, is hereby ORDERED to either release petitioner or
provide him a bond hearing no later than December 23, 2025. The claims against defendants
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Todd Lyons, Kristi Noem, Pamela Bondi, and the U.S. Department of Homeland Security are
DISMISSED.
So Ordered.
/s/ F. Dennis Saylor IV
F. Dennis Saylor IV
Dated: December 16, 2025 	United States District Judge
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