K-A- v. Wesling et al

United 	States 	District 	Court
District 	of 	Massachusetts
Koku Aboga,
Petitioner,
v.
David Wesling, 	et 	al.,
Respondents.
GORTON, 	J.
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Civil 	Action No.
26-cv-10178-NMG
MEMORANDUM & ORDER
This 	case 	arises 	from 	the 	petition 	for 	writ 	of 	habeas
corpus 	(Docket 	No. 	1) 	of 	petitioner Koku Aboga 	("petitioner" 	or
"Aboga"). 	Aboga 	filed 	his 	original 	petition anonymously but 	is
directed 	henceforth 	to 	file 	pleadings 	in 	his 	real 	name 	in
compliance 	with 	standard practice, 	see 	Doe 	v. 	Massachusetts
Inst. 	of 	Tech., 	46 	F.4th 	61 	(1st 	Cir. 	2022) . 	To 	the 	extent
petitioner 	is 	required 	to 	divulge 	personal 	identifying
information or 	sensitive 	health data, 	he 	may 	choose 	to 	redact
such 	information 	and move 	the 	Court 	to 	file 	an 	unredacted
version 	under 	seal, 	see 	Local 	Rule 	7.2.
Petitioner 	contends 	that 	David Wesling 	and 	other 	named
respondents 	(collectively, 	"respondents") 	have 	subjected him 	to
mandatory 	detention under 	18 	U.S.C. 	§1225 	despite 	his 	claim 	that
he 	is 	entitled 	to 	procedures 	under 	1 8 	U.S.C. 	§1226(a). 	Because
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the 	Court 	finds 	that 	he 	is 	detained pursuant 	to 	§1226(a), 	his
petition will 	be 	allowed 	unless 	he 	is 	afforded 	the 	due 	process
under 	that 	statute.
I. 	Background
Petitioner 	is 	a 	39-year-old 	citizen of 	Togo. 	He 	entered
the 	United 	States 	without 	inspection 	in October, 	2022. 	Upon
entry petitioner 	was 	processed by 	immigration 	officials 	and
released 	on 	humanitarian parole 	pursuant 	to 	8 	U.S.C.
§1182(d) (5) (A). 	Upon 	reaching 	his 	final 	destination 	in
Scarborough, 	Maine, 	several 	days 	later, 	petitioner 	reported 	to 	a
local 	U.S. 	Immigration 	and 	Customs 	Enforcement 	("ICE") 	office.
He 	was 	served with 	a 	Notice 	to 	Appear 	and 	released on 	his 	own
recognizance.
Between his 	release 	on personal 	recognizance 	in October,
2022, 	and November, 	2025, 	petitioner missed 	nine 	biometric
check-ins 	and 	failed 	to 	complete 	a 	virtual 	office 	visit, 	in
violation 	of 	the 	terms 	of 	his 	Alternatives 	to 	Detention 	("ATD")
In November, 	2025, 	ICE 	issued a 	Form 	I-200 	warrant 	for 	his
arrest, 	which was 	executed upon 	petitioner 	at 	his 	workplace.
Petitioner 	remains 	in 	ICE 	custody.
II. 	Petition 	for 	Writ 	of 	Habeas 	Corpus
A. Legal 	Standard
A petition 	for 	writ 	of 	habeas 	corpus 	pursuant 	to 	28 	U.S.C.
§2241 	permits 	a 	prisoner 	to 	challenge 	the 	administration of 	his
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detention 	rather 	than 	its 	validity. 	Dinkins 	v . 	Bencher, 	No. 	21-
CV-11847-AK, 	2022 	WL 	3021108, 	at 	*2 	(D. 	Mass. 	July 	29, 	2022).
The 	burden 	is 	on petitioner 	to 	show 	that 	his 	custody violates
the 	Constitution or 	laws 	of 	the 	United 	States. 	Espinoza v.
Sabol, 	558 	F.3d 	83 , 	89 	(1st 	Cir. 	2009).
The 	procedures 	under 	18 	U. S.C. 	§1225 	apply 	to 	applicants
for 	admission, 	who 	are 	defined 	as 	non-citizens 	present 	in 	the
United 	States 	who 	have 	not 	been 	admitted. 	§1225(a) (1). 	Section
1225(b) (1) 	applies 	to 	aliens 	determined 	to 	be 	inadmissible 	due
to 	fraud, 	misrepresentation or 	lack 	of 	valid 	documentation .
Jennings 	v. 	Rodriguez, 	583 	U.S. 	281, 	287 	(2018) . 	An 	alien
detained 	under 	§1225(b) 	may 	be 	released only 	if 	he 	is 	paroled
for 	significant 	public 	benefit 	or 	urgent 	humanitarian 	reasons
under 	§1182(d) (5) (A). 	Such parole 	is 	not 	regarded as 	an
admission 	of 	the 	alien 	and may 	be 	terminated
upon 	accomplishment 	of 	the 	purpose 	for 	which
parole 	was 	authorized 	or 	when 	in 	the 	opinion
of 	one 	of 	[certain 	specified 	Department 	of
Homeland 	Security] 	officials 	... , 	neither
humanitarian 	reasons 	nor 	public 	benefit
warrants 	the 	continued 	presence 	of 	the
[noncitizen] 	in 	the 	United 	States.
8 	C.F.R. 	§212.5(e) (2) (i). 	The 	Department 	of 	Homeland 	Security
must 	provide 	written 	notice 	to 	the 	non-citizen , 	and 	he 	or 	she 	is
then 	restored 	to 	his 	or 	her pre-parole 	status. 	Id.
Section 	1226(a) 	establishes 	a 	discretionary 	detention
framework 	for 	aliens 	arrested 	and 	detained pending 	removal
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proceedings. 	Under 	that 	provision, 	the 	Attorney 	General 	may
continue 	to 	detain 	the 	alien, 	release 	him on bond or 	release 	him
on parole. 	§§1226(a) (1)-(2). 	The 	arresting 	immigration officer
makes 	an 	initial 	custody determination 	but 	non-citizens 	have 	the
right 	to 	request 	a 	custody 	redetermination 	(i . e., 	bond) 	hearing
before 	an 	immigration 	judge . 	See 	8 	C.F . R. 	§§1236 . l(c) (8),
(d) (1).
Section 	1226(a), 	rather 	than 	§1225(b) , 	applies 	to 	aliens
who 	are 	detained 	while 	residing 	in 	this 	country . 	Guerrero
Orellana v. 	Moniz, 	802 	F. 	Supp. 	3d 	297 	(D. 	Mass. 	2025) 	If,
however, 	an 	alien 	is 	detained upon 	the 	revocation 	of
humanitarian parole 	under 	§1182(d) (5) (A), 	and 	his 	original
detention was 	pursuant 	to 	§1225(b), 	then 	he 	is 	returned 	to
custody under 	that 	statute. 	See 	Banegas 	v. 	McDonald, 	No. 	CV 	25-
13161-NMG, 	2025 	WL 	3251395 	(D. 	Mass. 	Nov . 	21, 	2025).
B. Application
Petitioner 	asserts 	that 	his 	current 	detention 	is 	unlawful
he 	is 	entitled 	to 	a 	bond 	hearing 	pursuant 	to 	§1226(a).
Respondents 	reply 	that 	because 	he 	was 	paroled 	into 	the 	United
States 	from 	his 	detention 	under 	§1225(b) (2), 	his 	current
detention 	amounts 	to 	a 	revocation 	of 	that 	parole 	and 	he 	is
therefore 	subject 	to 	the 	detention 	framework 	of 	that 	statute.
The 	Court 	concludes 	that 	petitioner 	is 	detained pursuant 	to
§1226(a). 	While 	his 	detention 	at 	the 	border was 	made 	under
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§1225(b) (2), 	and 	his 	release 	pursuant 	to 	humanitarian parole
under 	§1182(d) (5) (A), 	the 	Court 	finds 	that 	the 	government
reclassified 	his 	custodial 	status 	as 	subject 	to 	§1226(a)
First, 	respondents' 	own 	records 	indicate 	that 	upon
petitioner's 	arrival 	in 	Scarborough, 	Maine, 	he 	was 	served a
notice 	to 	appear 	and 	then was 	ureleased 	[] 	on 	his 	own
recognizance." 	As 	the 	Court 	has 	noted 	in 	similar 	cases, 	a
petitioner's 	release 	on 	his 	own 	recognizance 	is 	a 	procedure 	of
the 	discretionary detention 	framework 	of 	§1226(a), 	not 	of 	the
mandatory 	scheme 	under 	§1225. 	See 	Vasquez 	v. 	Moniz, 	No. 	CV 	25-
13716-NMG, 	2025 	WL 	3719681 	(D. 	Mass. 	Dec. 	23, 	2025).
Further, 	those 	same 	records 	indicate 	that 	petitioner was
arrested pursuant 	to 	a 	Form 	I-200 	Warrant 	for 	Arrest 	of 	Alien.
Those 	warrants 	are 	authorized under 	§1226, 	and 	other 	sessions 	of
this 	Court 	have 	found 	that 	the 	use 	of 	such warrants 	is
sufficient 	to 	establish 	ongoing 	custody pursuant 	to 	§1226(a)
See~' 	Alcantara 	Lugo 	et 	al 	v. 	Hyde, 	No. 	1:25-cv-13296-RGS,
Docket 	No. 	16 	(D. 	Mass. 	Dec. 	16, 	2025).
Finally, 	revocation 	of 	humanitarian parole 	under
§1182(d) (5) (A) 	requires 	written 	notice 	to 	be 	served upon 	the
alien. 	8 	C.F.R. 	§ 	212.5(e) (2) (i). 	No 	such 	notice 	was 	served 	in
this 	case. 	Petitioner's 	ongoing 	detention must 	therefore
comport 	with 	the 	procedures 	of 	§1226(a).
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. ' 	..
This 	case 	is 	distinguishable 	from 	Banegas, 	in which 	this
Court 	found 	that 	revocation of 	parole 	under 	§1182(d) (5) (A)
returned an 	alien 	to 	mandatory 	detention 	under 	§1225(b) 	In
that 	case, 	the 	petitioner was 	not 	released on 	his 	own
recognizance 	nor 	arrested pursuant 	to 	a 	§1226 	warrant 	and was
served notice 	of 	the 	revocation 	of 	his 	parole. 	In 	this 	case,
Aboga 	has 	shown 	that, 	unlike 	the 	petitioner 	in Banegas, 	his
custodial 	status 	was 	reclassified 	subject 	to 	§1226. 	He 	is
therefore 	entitled 	to 	the 	procedures 	under 	that 	statue.
ORDER
For 	the 	forgoing 	reasons, 	along 	with 	those 	set 	forth 	in
Sampiao v. 	Hyde, 	No. 	1:25-CV-11981-JEK, 	2025 	WL 	2607924 	(D.
Mass. 	Sept. 	9, 	2025), 	Lema 	Zamora v. 	Noem, 	No. 	25-cv-12750-NMG,
2025 	WL 	2958879 	(D. 	Mass. 	Oct. 	17, 	2025) 	and 	Lopez-Monteros 	v.
Hyde, 	No. 	25-cv-12629-NMG 	(D. 	Mass. 	Oct. 	27, 	2025), 	the 	petition
for 	writ 	of 	habeas 	corpus 	(Docket 	No. 	1) 	is 	ALLOWED. 	The 	Court
directs 	that 	Aboga 	is 	to 	be 	released unless 	he 	is 	afforded a
bond 	hearing 	that 	complies 	with 	the 	standards 	in Hernandez-Lara
v. 	Lyons, 	10 	F.4th 	19 	(1st 	Cir. 	2021), 	within 	seven days 	of 	the
date 	of 	this 	order.
So 	ordered.
Nathaniel 	M. 	Gorton
Senior 	United 	States 	District 	Judge
Dated: 	March {o 	, 	2026
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