Bispo Esteves v. Wesling et al

United States 	District Court
District of Massachusetts
Moises 	Roberto 	Bispo Esteves,
Petitioner,
v.
David Wesling, 	et al,
Respondents .
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Civil Action No.
26-14255-NMG
MEMORANDUM & ORDER
GORTON, 	J .
This 	case 	arises 	from 	the 	petition 	for 	writ 	of 	habeas
corpus 	(Docket 	No. 	1) 	of 	petitioner 	Moises 	Roberto 	Bispo 	Esteves
(" Bispo 	Esteves" 	or 	"petitioner " ) . 	Bispo 	Esteves 	asserts 	that
his 	arrest 	and 	detention 	by 	David Wesling 	and 	the 	other 	named
respondents 	(" respondents " ) 	violate 	his 	statutory, 	regulatory ,
and 	d u e 	process 	rights 	as 	a 	non - cit i zen. 	He 	seeks 	i mmedia t e
release 	from 	custody , 	or 	alternatively , 	a 	bond 	hearing 	under 	8
U. S.C . 	§1226(a).
I. 	Facts
Petitioner 	is 	a 	citizen 	of 	Brazil . 	He 	was 	admitted 	to 	t he
Uni t ed 	States 	on 	or 	about 	April 	8 , 	2004 , 	as 	an 	H- 2B
nonagricult u ral 	worker 	authorized 	to 	remain 	until 	December 	1,
2004 . 	He 	did 	not 	depart 	as 	scheduled 	and 	has 	remained 	in 	the
country 	ever 	since .
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At 	about 	8:00 	A.M. 	on 	September 	16, 	2026, 	U.S. 	Immigration
and 	Customs 	Enforcement 	("ICE") 	officers 	arrested 	petitioner 	at
his 	workplace 	in 	Massachusetts 	without 	the 	serving 	of 	a 	warrant.
Petitioner 	filed 	this 	petition 	for 	writ 	of 	habeas 	corpus 	the
same 	day. 	He 	alleges 	that 	no 	warrant 	had 	been 	presented 	or
identified, 	and 	that 	the 	circumstances 	permitting 	a 	warrantless
arrest 	under 	8 	U.S.C. 	§1357(a) (2) 	were 	not 	present 	at 	the 	time
of 	his 	arrest. 	He 	contends 	that 	his 	detention 	therefore
violates 	8 	U.S.C. 	§§1226(a) 	and 	1357(a) (2) 	and 	the 	Due 	Process
Clause 	of 	the 	Fifth 	Amendment. 	He 	seeks 	immediate 	release 	or,
in 	the 	alternative, 	a 	bond 	hearing. 	He 	remains 	detained 	at 	the
Plymouth 	County 	Correctional 	Facility 	in 	Plymouth,
Massachusetts.
In 	their 	initial 	response, 	respondents 	submitted 	a 	Form 	I-
200 	warrant 	that 	was 	generated 	electronically. 	Although 	it
bears 	a 	typed 	date 	of 	September 	16, 	2026, 	it 	was 	digitally
signed 	at 	1:11 	P.M. 	on 	September 	17, 	2026, 	and 	served 	on
petitioner 	that 	day, 	the 	day 	after 	his 	arrest. 	Respondents
conceded 	that 	petitioner 	is 	eligible 	for 	a 	bond 	hearing 	under
§1226(a) 	and 	did 	not 	object 	to 	the 	Court 	ordering 	one.
In 	reply, 	petitioner 	contended 	that 	the 	electronic 	warrant
submitted 	by 	respondents 	did 	not 	establish 	that 	he 	was 	arrested
"[o]n 	a 	warrant," 	as 	is 	required 	under 	§1226(a). 	He 	emphasized
that 	the 	warrant's 	digital 	signature 	and 	certificate 	of 	service
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both 	reflect 	the 	date 	of 	September 	17, 	and 	that 	respondents 	did
not 	explain 	the 	discrepancy 	with 	the 	typed 	date.
After 	this 	Court's 	initial 	consideration 	of 	the 	case, 	it
ordered 	respondents 	to 	respond 	to 	petitioner's 	assertion 	that 	no
warrant 	was 	issued 	until 	after 	his 	arrest. 	Thereafter,
respondents 	submitted, 	for 	the 	first 	time, 	a 	separate
handwritten 	warrant 	dated 	September 	16, 	2026. 	It 	bears 	the 	same
officer's 	signature 	but, 	unlike 	the 	electronic 	warrant 	submitted
initially, 	it 	does 	not 	indicate 	the 	time 	it 	was 	issued. 	Among
its 	stated 	grounds 	for 	probable 	cause 	is 	"the 	execution 	of 	a
charging 	document 	to 	initiate 	removal 	proceedings.u
Respondents 	also 	presented 	a 	declaration 	from 	an 	Acting
Assistant 	Field 	Office 	Director 	of 	ICE. 	Relying 	on 	agency
records, 	the 	declarant 	avers 	that 	the 	handwritten 	warrant 	was
executed 	before 	the 	arrest 	of 	petitioner 	and 	placed 	in 	his 	file
without 	being 	served. 	The 	declarant 	further 	attests 	that 	ICE
later 	issued 	the 	electronic 	warrant 	to 	create 	an 	electronic
record 	of 	the 	document, 	and 	that 	ICE 	served 	the 	electronic
warrant 	together 	with 	a 	Notice 	to 	Appear 	on 	September 	17, 	2026.
According 	to 	the 	declarant, 	ICE 	could 	not 	issue 	the 	Notice
to 	Appear 	earlier 	because 	it 	had 	not 	yet 	secured 	detention 	space
for 	petitioner. 	The 	Notice 	to 	Appear 	charges 	petitioner 	as
removable 	under 	INA 	§237 (a) (1) (B) 	for 	remaining 	in 	the 	United
States 	longer 	than 	permitted. 	Respondents 	filed 	the 	Notice 	to
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Appear 	with 	the 	Immigration 	Court 	on 	or 	about 	September 	23,
2026, 	and 	removal 	proceedings 	are 	ongoing.
Respondents 	now 	contend 	that, 	because 	a 	warrant 	was
executed 	before 	petitioner's 	arrest, 	his 	lack-of-a-warrant
defense 	is 	moot. 	They 	further 	assert 	that 	any 	challenge 	to 	the
arrest 	may 	be 	advanced 	in 	removal 	proceedings 	and 	that, 	in 	any
event, 	release 	is 	not 	an 	available 	habeas 	remedy 	for 	an 	unlawful
arrest.
Petitioner 	replies 	that 	the 	handwritten 	warrant 	does 	not
cure 	the 	defect 	because 	it 	rests 	on 	a 	charging 	document 	that, 	by
respondents' 	admission, 	had 	not 	yet 	issued. 	He 	maintains 	that
respondents 	have 	proffered 	no 	facts 	in 	support 	of 	a 	claim under
§1357(a) (2) 	and 	that 	he 	is 	entitled 	to 	release 	or, 	in 	the
alternative, 	an 	evidentiary 	hearing.
II. 	Discussion
A. Jurisdiction
As 	an 	initial 	matter, 	the 	Court 	will 	address 	respondents'
contention 	that 	the 	Court 	lacks 	jurisdiction 	over 	the 	claims 	set
forth 	in 	the 	petition. 	Habeas 	relief 	extends 	to 	petitioners 	who
are
in 	custody 	in 	violation 	of 	the 	Constitution 	or 	laws 	or
treaties 	of 	the 	United 	States.
28 	U.S.C. 	§2241(c) (3). 	Here, 	because 	petitioner 	challenges 	the
statutory 	authority 	for 	his 	present 	confinement 	rather 	than 	the
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determination 	of 	his 	removal 	that 	is 	the 	subject 	of 	the 	removal
proceedings, 	his 	claim 	is 	cognizable 	in 	habeas. 	See 	Zadvydas 	v.
Davis, 	533 	U.S. 	678, 	687-88 	(2001); 	Kong 	v. 	United 	States, 	62
F.4th 	608, 	617 	(1st 	Cir. 	2023).
Moreover, 	respondents' 	contention 	that 	petitioner 	must
challenge 	the 	lawfulness 	of 	his 	arrest 	through 	a 	motion 	to
suppress 	in 	the 	removal 	proceedings 	mischaracterizes 	his
petition. 	Petitioner 	does 	not 	seek 	to 	suppress 	evidence 	or
terminate 	his 	removal 	proceedings 	and 	he 	pleads 	no 	Fourth
Amendment 	claim. 	Rather, 	he 	alleges 	that 	his 	detention 	is 	not
authorized 	by 	statute. 	In 	INS 	v. 	Lopez-Mendoza, 	468 	U.S. 	1032
(1984), 	the 	United 	States 	Supreme 	Court 	addressed 	the
inapplicability 	of 	the 	exclusionary 	rule 	in 	removal 	proceedings.
That 	decision 	did 	not, 	however, 	limit 	the 	authority 	of 	a 	court
to 	decide 	whether 	detention 	is 	authorized 	by 	statute.
Respondents' 	argument 	therefore 	relates, 	if 	at 	all, 	to 	remedy,
which 	the 	Court 	addresses 	below.
Nor 	does 	the 	averment 	from 	the 	declarant 	that 	the
handwritten 	warrant 	issued 	before 	the 	arrest 	render 	the 	petition
moot. 	Petitioner 	is 	still 	detained 	and 	the 	Court 	retains
authority 	to 	grant 	effective 	relief. 	Whether 	a 	warrant 	existed
before 	the 	arrest 	goes 	to 	the 	merits 	of 	petitioner's 	claim, 	not
to 	its 	mootness.
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B. Remedy
The 	parties 	dispute 	whether 	the 	handwritten 	Form 	I-200
warrant 	was 	signed 	before 	the 	arrest 	of 	petitioner. 	As 	noted 	by
petitioner, 	there 	are 	defects 	in 	the 	account 	of 	the 	arrest
proffered 	by 	respondents. 	The 	handwritten 	warrant 	bears 	no 	time
stamp 	of 	issuance 	and 	recites 	as 	a 	basis 	for 	probable 	cause 	the
execution 	of 	a 	charging 	document 	that, 	according 	to 	respondents'
declarant, 	did 	not 	issue 	until 	the 	following 	day. 	Moreover, 	the
declarant 	does 	not 	claim personal 	knowledge 	of 	when 	the 	warrant
was 	signed.
The 	Court 	need 	not 	resolve 	that 	dispute. 	Even 	assuming
arguendo 	that 	no 	warrant 	preceded 	the 	arrest 	and 	that 	the 	arrest
did 	not 	satisfy 	the 	requirements 	of 	§1357(a) (2), 	petitioner
would 	not 	be 	entitled 	to 	immediate 	release.
Habeas 	corpus 	petitions 	test 	the 	lawfulness 	of 	present
custody, 	and 	petitioner's 	present 	custody 	is 	no 	longer 	dependent
on 	his 	arrest 	alone. 	He 	is 	now 	detained 	under 	a 	Form 	I-200
issued 	September 	17, 	2026, 	a 	Notice 	to 	Appear 	charging
removability 	a nd 	pending 	removal 	proceedings. 	He 	does 	not
dispute 	in 	his 	habeas 	petition 	that 	probable 	cause 	supports 	that
charge.
The 	regulations 	themselves 	anticipate 	that 	a 	warrant 	may
follow, 	rather 	than 	precede, 	an 	arrest. 	When 	a 	non-citizen 	is
arrested 	without 	a 	warrant, 	the 	agency 	must 	decide 	within 	48
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hours 	whether 	to 	continue 	custody 	and 	whether 	to 	issue 	a 	notice
to 	appear 	and 	a 	warrant 	of 	arrest. 	8 	C.F.R. 	§ 28 7.3(d). 	Here,
both 	documents 	issued 	within 	30 	hours 	of 	the 	arrest. 	Although
that 	regulation 	presupposes 	a 	lawful 	warrantless 	arrest, 	it
nevertheless 	confirms 	that 	custody 	under 	§1226(a) 	need 	not 	begin
with 	a 	warrant 	in 	hand.
Relief 	in 	habeas 	corpus 	cases 	must 	also 	fit 	the 	attendant
injury. 	The 	Court 	must 	resolve 	the 	matter 	"as 	law 	and 	justice
require." 	2 8 	U.S.C. 	§ 2 243. 	Here, 	immediate 	release 	would 	not
prevent 	respondents 	from 	re-arresting 	petitioner 	on 	the 	e x isting
warrant, 	nor 	would 	it 	bar 	respondents 	from 	pursuing 	remo v al.
Thus, 	the 	injury 	that 	remains 	is 	petitioner's 	current 	detention
without 	an 	individualized 	determination 	under 	§1226(a). 	A
prompt 	bond 	hearing, 	with 	the 	burden 	on 	the 	government, 	would
remedy 	that 	injury.
Furthermore, 	the 	cas e s 	on 	which 	petitioner 	relies 	do 	n o t
require 	a 	contrary 	result. 	In 	Lin 	v. 	Moniz, 	No. 	1:26-cv-11566-
BEM 	(D. 	Mass. 	Apr. 	7, 	2026), 	the 	respondents 	produced 	no 	warrant
at 	all. 1 	Here, 	they 	hav e . 	The 	Court 	recognizes 	that 	courts 	in
oth e r 	districts 	have 	ord e red 	release 	where 	the 	government 	did
not 	show 	that 	a 	warrant 	preceded 	th e 	arrest. 	See, 	e.g., 	Jorge
A.-G. 	v. 	Bondi, 	20 2 6 WL 	44468 2 , 	at 	*2-3 	(D. 	Minn. 	Feb. 	17,
1 	Whe r e t here was a warrant on t he reco rd, 	the same sess i on of t his
Court orde r ed re l ease on l y i f 	no bond hear i ng was held b y a 	set dead l ine . 	See
Mendez Jua r ez v . 	Moniz , 	No . 	1: 26 - cv -1 2664 - BEM 	(D . 	Mass. 	June 15 , 	2026 ) .
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2026); 	Lazarte 	v . 	Venturella, 	2026 	WL 	2581945, 	at 	*3 	(N.D.N.Y.
Sept. 	1, 	2026). 	To 	the 	extent 	those 	decisions 	treat 	release 	as
mandatory where 	a 	warrant 	issued 	within 	48 	hours 	and 	a 	bond
hearing 	is 	available, 	the 	Court 	respectfully 	has 	a 	different
opinion.
Nor 	do 	petitioner's 	remaining 	authorities 	require 	a
different 	conclusion. 	In 	three 	of 	the 	cases 	cited 	by
petitioner, 	the 	government 	never 	produced 	a 	warrant, 	and 	thus,
the 	ongoing 	detention 	of 	the 	petitioner 	had 	no 	statutory
predicate. 	See 	Chogllo 	Chafla 	v. 	Scott, 	804 	F. 	Supp. 	3d 	247, 	264
(D. 	Me. 	2025); 	Makuiza 	v. 	Wesling, 	826 	F. 	Supp. 	3d 	176, 	180,
182-83 	(D. 	Me . 	2026) 	(no 	warrant 	one 	week 	after 	arrest); 	Vo 	v.
Baltazar, 	2026 	WL 	1998578, 	at 	*4 	(D. 	Colo. 	July 	10, 	2026) 	(no
warrant 	more 	than 	two 	months 	after 	arrest, 	so 	"current 	detention
lack[ed] 	a 	'lawful 	predicate'"). 	Here, 	by 	contrast,
petitioner's 	current 	detention 	rests 	on 	a 	warrant 	issued 	a
little 	more 	than 	one 	day 	after 	his 	arrest, 	within 	the 	period
that 	the 	court 	in 	Makuiza 	itself 	recognized 	for 	a 	warrant 	to
issue 	"post 	hoc" 	after 	a 	warrantless 	arrest. 	826 	F. 	Supp. 	3d 	at
180 	(citing 	8 	C.F.R. 	§287.3(d)). 	In 	the 	fourth 	case, 	Alves 	v.
Stamper, 	the 	court 	expressly 	declined 	to 	"resolve 	the 	arrest
warrant 	question," 	but 	instead 	ordered 	release 	on 	grounds 	absent
here. 	2026 	WL 	1802817, 	at 	*2-4 	(D. 	Me. 	June 	23, 	2026).
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Finally, 	the 	Court 	need 	not 	decide 	whether 	the 	arrest 	of
petitioner 	satisfied 	§1357(a) (2), 	because 	the 	relief 	ordered
here 	does 	not 	turn 	on 	that 	question. 	The 	Court 	notes 	that
respondents 	have 	not, 	however, 	offered 	any 	facts 	bearing 	on
whether 	petitioner 	was 	likely 	to 	escape 	before 	a 	warrant 	could
be 	obtained.
ORDER
For 	the 	foregoing 	reasons, 	the 	Petition 	for 	Writ 	of 	Habeas
Corpus 	(Docket 	No. 	1) 	is 	ALLOWED, 	in 	part, 	and DENIED, 	in 	part.
The 	Court 	directs 	that 	Bispo 	Esteves 	be 	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.
Nathaniel~ 	~n
Senior 	United 	States 	District 	Judge
Dated: 	October/ S 	, 	2026
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