Case Name in Immigration Case - Unavailable

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Helder Pires Macedo
v. Case No. 1:26-cv-36-JL-TSM
Opinion No. 2026 DNH 059
David Wesling, et al.
ORDER ON PETITIONER’S MOTION FOR IMMEDIATE RELEASE
Before the court, in the context of an immigration-related habeas corpus
proceeding during which this court previously ordered the Department of Justice to
provide a Due-Process required hearing, is petitioner Helder Pires Macedo’s motion for
immediate release from his ongoing immigration detention after an Immigration Judge
(IJ) denied him release under bond. Macedo’s criminal history includes pending state
charges of possession with intent to distribute marijuana. At a March 13, 2026 bond
hearing, the Immigration Judge found, based on his criminal history and the pending
charges, that he was a danger to the community and ordered his continued detention.
Macedo now challenges the constitutional sufficiency of the bond hearing under the Due
Process Clause of the 14th Amendment to the Constitution. The respondents argue that
the IJ’s determination was constitutionally sufficient, that this court lacks jurisdiction to
review the IJ’s order under 8 U.S.C. § 1226(e), and that the petitioner should be required
to exhaust his administrative remedies by appealing the IJ’s decision to the Board of
Immigration Appeals (BIA).
Having reviewed the parties’ briefing and held oral argument, the court finds that
§ 1226(e) does not preclude review of the IJ’s decision for constitutional sufficiency, but
Case 1:26-cv-00036-JL-TSM Document 26 Filed 05/20/26 Page 1 of 11

2
that the IJ did not violate Macedo’s due process rights when she found by clear and
convincing evidence that he was a danger to the community. The petitioner initiated a
BIA appeal, but the court nonetheless finds that he was not required to exhaust his
administrative remedies before moving for release in this court.
I. Background
Macedo is a legal permanent resident with citizenship from Portugal and Cape
Verde. He moved to the U.S. with his family at age 13 and has had legal permanent
resident status since then. He is engaged and has a U.S. citizen child.
In 2012 he was arrested and charged with misdemeanor possession with intent to
distribute marijuana in Massachusetts state court. In 2013 he pled guilty to the facts but
did not admit the crime itself. The court entered a continuance without a finding.1
In early 2025 he flew to Cape Verde for a short trip. When he arrived back in the
U.S. in April 2025 the Department of Homeland Security (DHS) determined him
inadmissible to the United States based on his 2013 plea, and placed him in removal
proceedings and immigration custody. An IJ then ordered him removed.
On September 24, 2025, the Boston Municipal Court vacated the petitioner’s 2013
plea entered on the charge of possession with intent to distribute marijuana based on
ineffective assistance of counsel in violation of his constitutional rights. Macedo then
moved to reopen his immigration proceedings. As a result of the vacatur of his criminal
1 Crim. Dkt. (doc. no. 20-2) at 53.
Case 1:26-cv-00036-JL-TSM Document 26 Filed 05/20/26 Page 2 of 11

3
conviction, an IJ terminated the petitioner’s removal proceedings on November 20, 2025.
DHS appealed the IJ’s termination order to the BIA. That appeal is still pending.
First court-ordered bond hearing. Macedo filed a habeas petition with this
court in January 2026. Based on the reasoning in Fils-Aime v. FCI Berlin, Warden, No.
1:25-CV-287-JL-TSM, 2025 WL 3063164 (D.N.H. Oct. 31, 2025), on February 5, this
court partially granted the petition and ordered limited relief in the form of a bond
hearing.2 This first bond hearing took place on February 10, 2026, and the IJ declined
jurisdiction on the basis that Macedo was held under 8 U.S.C. § 1226(c). Macedo
disagreed and moved to enforce this court’s February 5 order. After holding oral
argument, this court ordered a second, constitutionally adequate bond hearing, to take
place regardless of whether the petitioner was held under § 1225 or § 1226(c).3
Second court-ordered bond hearing. The second bond hearing took place on
March 13, 2026. After argument from both sides, the IJ found clear and convincing
evidence that Macedo was a danger to the community and continued his detention. The
petitioner filed a new motion with the court, requesting immediate release.4 The
respondents objected.5
II. Jurisdiction and administrative exhaustion
The court views the jurisdictional and exhaustion questions presented by this case
in much the same light as Makuraza v. Wesling, et al., No. 1:26-CV-122-JL-AJ, 2026 WL
2 Order (doc. no. 12).
3 Order (doc. no. 19).
4 Pet. Mot. Release (doc. no. 20).
5 Resp’ts’ Opp. (doc. no. 22).
Case 1:26-cv-00036-JL-TSM Document 26 Filed 05/20/26 Page 3 of 11

4
1068066 (D.N.H. Apr. 20, 2026). There, as here, the respondents conceded that this court
has jurisdiction to review the constitutional sufficiency of a bond hearing.6 Id. at *2.
Macedo, like Makuraza, challenges whether the evidence before the IJ was sufficient, as
a matter of law, to support a finding by clear and convincing evidence that he was a
danger to the community, as required by Hernandez-Lara v. Lyons, 10 F.4th 19, 41 (1st
Cir. 2021). And Macedo, like Makuraza, is subject to the same BIA appeals process.
Thus, for the reasoning set forth in Makuraza, the court finds that it has jurisdiction to
review the constitutional adequacy of the bond hearing and that administrative exhaustion
is not required. See Makuraza, 2026 WL 1068066 at *2.
III. Analysis
Although this court has authority to consider Macedo’s claim, that authority is
“limited.” Mayancela Mayancela v. FCI Berlin, Warden, No. 25-CV-348-LM-TSM,
2025 WL 3215638 at *5 (D.N.H. Nov. 18, 2025) (McCafferty, J.) (citing Diaz Ortiz v.
Smith, 384 F. Supp. 3d 140, 143 (D. Mass. 2019) (Saris, C.J.)). “To obtain habeas relief,
a petitioner must show that the IJ failed to place the burden of proof on the government to
show dangerousness by clear and convincing evidence by ‘either point[ing] to the
language of the [IJ’s] opinion or demonstrate[ing] that ‘the evidence itself could not – as
a matter of law – have supported’ the [IJ’s] decision to deny bond.’ ” Id. “Clear and
convincing evidence means highly probable, or reasonably certain. It falls between
6 Resp’ts’ Opp. (doc. no. 22) at 2 (citing Massingue v. Streeter, No. 3:19-cv-30159-KAR, 2020
WL 1866255, at *4 (D. Mass. Apr. 14, 2020)).
Case 1:26-cv-00036-JL-TSM Document 26 Filed 05/20/26 Page 4 of 11

5
preponderance of the evidence and proof beyond a reasonable doubt.” Diaz-Alarcon v.
Flandez-Marcel, 944 F.3d 303, 306 (1st Cir. 2019) (internal citations omitted).
Macedo challenges the evidence itself, arguing that it could not, as a matter of law,
establish by a clear and convincing standard that he was a danger to the community.7
In denying bond, the IJ based her decision on the “totality of the circumstances,”
including the pending charges against Macedo.8 She found that the possession of
marijuana with intent to distribute “showed disregard for the law.”9 The evidence before
her included Macedo’s criminal docket, showing the charges and disposition of the
charges, and the police report detailing his arrest. Citing Rosa v. Garland, 114 F.4th 1, 17
(1st Cir. 2024) and Kercheval v. United States, 274 U.S. 220 (1927), Macedo makes two
related arguments: that Rosa prohibits the IJ from relying exclusively on an
“uncorroborated” police report in making the bond decision, and that Kercheval prohibits
the IJ from relying on Macedo’s vacated plea as corroboration of the underlying events.
He also argues that the offense conduct is too temporally remote to support a finding of
dangerousness to the community.
The IJ permissibly considered the police report. But on this record, and under the
particular facts and circumstances present here, as explained infra, the vacated plea and
purported accompanying statements do not constitute permissibly considered evidence of
dangerousness. Nevertheless, although a close call, the totality of the evidence before the
7 Pet. Mot. Release (doc. no. 20) at 7.
8 Mem. Decision (doc. no. 23-1) at 5.
9 Id.
Case 1:26-cv-00036-JL-TSM Document 26 Filed 05/20/26 Page 5 of 11

6
IJ could allow a reasonable jurist to find by clear and convincing evidence that Macedo
was a danger to the community. See Mayancela Mayancela, 2025 WL 3215638, at *6
(“based on the totality of the evidence before the IJ, a reasonable jurist could have
concluded by a preponderance of the evidence that Mayancela posed a flight risk.”)
Police report. In Rosa, the First Circuit Court of Appeals held that, in the context
of immigration hearings concerning adjustment of status, “when exercising its discretion,
[IJs] may not give substantial weight to a police report in the absence of a conviction or
corroborating evidence of the allegations contained in the report.” 114 F.4th at 19. It also
noted that “the fact of a prosecution does not itself constitute corroboration” where “the
indictment was [not] based on anything other than the police report alone.” Id. at 22. But
it specifically left open the question of whether “corroboration could come from within
the police report itself.” Id.
Macedo points to Maurice v. Bondi, 154 F.4th 15 (1st Cir. 2025), which reiterates
Rosa’s holding that a “police report, absent a conviction, must be corroborated before the
agency may give the report substantial weight in denying adjustment of status as a matter
of discretion.”10 After finding that the BIA failed to consider certain hearing testimony
“for its corroborative nature,” the court in Maurice remanded to the BIA “to consider
whether the administrative record contains corroboration for the police reports relied on
10 Pet. Suppl. Resp. (doc. no. 25) at 2 (citing Maurice, 154 F.4th at 22).
Case 1:26-cv-00036-JL-TSM Document 26 Filed 05/20/26 Page 6 of 11

7
to deny Maurice relief.” Id. at 22.11 The court did not, however, address the question left
open in Rosa of whether police reports require external corroboration.
This court views corroboration of a police report—internal corroboration—to
describe multiple sources of inculpatory information (for the purposes of this analysis,
suggesting dangerousness) contained within the four corners of the report. Here, the
police report contains such internal corroboration. It describes several surveillance
officers witnessing Macedo handing a bag to another individual, who smelled the bag,
then completed a hand-to-hand exchange with Macedo. Two officers then approached
Macedo and seized from him several plastic bags of marijuana and $892 in cash. The
report lists three officers as witnesses of the events. The fact that the report describes a
physical seizure of drugs and observations by several officers of the petitioner engaging
in drug distribution serves (in the context of an IJ’s bond determination) as corroborating
evidence of the allegations in the report. Cf. Picado v. Hyde, No. 26-CV-065-JJM-PAS,
2026 WL 352691 at *7 (D.R.I. Feb. 9, 2026) (finding a police report uncorroborated
where only one officer witnessed the alleged criminal activity).
Without a definitive statement from the Court of Appeals that corroboration for
police reports must come from external sources—in other words, corroboration of a
11 Maurice appears to require the BIA to make a finding regarding corroboration for police
reports, rather than a requirement that the record simply contain corroborating evidence. See
Maurice, 154 F.4th at 22 (“the BIA’s actual discussion of Maurice’s hearing testimony does not
suggest that the BIA considered the testimony for its corroborative nature…On this record, we
cannot conclude that the BIA considered whether the police reports were corroborated before
giving those reports substantial weight in denying Maurice adjustment of status.”). Because
Maurice, like Rosa, arose in the context of an adjustment of status decision rather than a bond
hearing, this court will not read such a requirement into Immigration Court custody
determinations.
Case 1:26-cv-00036-JL-TSM Document 26 Filed 05/20/26 Page 7 of 11

8
police report from sources external to and independent of the report—and because the
police report in this case contains multiple types and sources of evidence which serve to
corroborate the allegations in the report, this court finds that the IJ permissibly relied on
the police report. The court further finds that the events documented in the police report,
namely illegal drug distribution, permissibly support a finding of dangerousness by clear
and convincing evidence within the Hernandez-Lara standard.
Vacated plea. In denying bond, the IJ emphasized that Macedo had admitted to the
facts underlying his misdemeanor marijuana charge under oath. Citing Kercheval, Matter
of Adamiak, 23 I. & N. Dec. 878, 879-880 (BIA 2006) and Matter of Pickering, 23 I. &
N. Dec. 621, 624 (BIA 2003), rev’d on other grounds, Pickering v. Gonzales, 465 F.3d
263 (6th Cir. 2006) Macedo argues that the vacatur of his plea on ineffective assistance of
counsel grounds “vitiates the admission,” and under the BIA’s own precedents, it is
improper for an IJ to rely on the conviction and underlying statements as evidence of the
underlying conduct.12
While not applicable to Immigration Court proceedings, see Fed. R. Ev. 1101, the
Federal Rules of Evidence prohibit the admission in a civil or criminal case of a nolo
contendere plea or of statements made during a proceeding on a guilty plea that was later
withdrawn. Fed. R. Ev. 410. The Advisory Committee Notes to the rule explain that
“[w]ithdrawn pleas of guilty were held inadmissible in federal prosecutions in Kercheval
v. United States, 274 U.S. 220 (1927). The Court pointed out that to admit the withdrawn
12 Pet. Mot. Release (doc. no. 20) at 10.
Case 1:26-cv-00036-JL-TSM Document 26 Filed 05/20/26 Page 8 of 11

9
plea would effectively set at naught the allowance of withdrawal and place the accused in
a dilemma utterly inconsistent with the decision to award him a trial.” Id. Similarly, the
BIA found in Adamiak and Pickering that when a conviction is vacated for procedural
defects the agency “no longer consider[s] the conviction to be valid” for immigration
purposes. In Re Adamiak, 23 I. & N. Dec. at 881; In Re Pickering, 23 I. & N. Dec. at
624. Although this authority does not bind an IJ’s determinations in the context of a bond
hearing, it suggests that vacated pleas and the statements made in the process of entering
such pleas should not be treated as convictions or used against the defendants where, as
here, the conviction was vacated for procedural defects.
Macedo did not plead guilty; instead the court entered a continuance without a
finding, a Massachusetts court order that allows a defendant to avoid pleading guilty by
“admitting to sufficient facts” to support a guilty finding.13 As the petitioner’s counsel
discussed at oral argument, Massachusetts courts do not always require a defendant in
these circumstances to swear to having committed particular facts, but sometimes allow
defendants to admit that if the prosecution were to present the alleged facts at trial, the
defendant could be found guilty. The record before the IJ contained no evidence of
sworn statements by Macedo from his plea colloquy; there was and is no evidence that he
made specific factual admissions, much less the substance of any such admissions.
Without a conviction or a record of Macedo’s statements, the probative value of his
vacated plea is low. See, e.g. Garces v. U.S. Atty. Gen., 611 F.3d 1337, 1348-49 (11th Cir.
13 Crim. Dkt. (doc. no. 20-2) at 53.
Case 1:26-cv-00036-JL-TSM Document 26 Filed 05/20/26 Page 9 of 11

10
2010) (in the context a removal proceeding, “[i]f the record established that [the
petitioner] had indeed stood up in court and admitted the facts of the offense under oath,
or that [state] procedural rules would necessarily have required him to do so…[that]
would be strong evidence that he did in fact commit the crime,” but in the absence of
such circumstances “there was no substantial evidence that [the petitioner] admitted
anything when he pled guilty.”). Given its limited probative value, the court finds that
the evidence before the IJ regarding Macedo’s vacated plea could not have supported a
finding of dangerousness under the circumstances present here.
Timing of offense conduct. The petitioner presents no binding authority for the
proposition that offense conduct that took place 14 years ago cannot, as a matter of law,
support a finding of current dangerousness. In making bond determinations, IJs must
give ‘reasoned consideration to the evidence as a whole, [make] supportable findings, and
adequately explain[ ] [their] reasoning.’” Barnica-Lopez v. Garland, 59 F.4th 520, 530
(1st Cir. 2023). The IJ explicitly stated that she considered the age of the offense conduct
and the fact that the petitioner has not been charged with any crimes since then.14 But she
weighed the evidence against other evidence of his dangerousness (which she found to be
clear and convincing), namely, the “strong disregard for the law” evinced by his drug
dealing and the fact that he had not shown a strong history of other employment.15
While the evidence relied on by the IJ here would not likely support a finding of
dangerousness in a criminal detention proceeding, see 18 U.S.C. § 3142(g), the IJ made
14 Bond Hr’g Tr. (doc. no. 21-1) at 18.
15 Id.
Case 1:26-cv-00036-JL-TSM Document 26 Filed 05/20/26 Page 10 of 11

11
her determination under a Congressionally-established scheme affording her far more
discretion. See, e.g. 8 C.F.R. § 1003.19(d) (permitting IJs to base their findings on “any
information that is available to the Immigration Judge or that is presented to him or her
by the alien or the Service.”). Although another court might have weighed the evidence
available to the IJ differently, involvement in illegal drug dealing could support a finding
that the petitioner was a danger to the community by clear and convincing evidence.
IV. Conclusion
Because the petitioner has not demonstrated that the IJ failed to apply the
constitutional standard in her bond determination, the court denies the petitioner’s motion
for immediate release.16
SO ORDERED.
Joseph N. Laplante
United States District Judge
Dated: May 20, 2026
Cc: Counsel of record.
16 Doc. no. 20.
Case 1:26-cv-00036-JL-TSM Document 26 Filed 05/20/26 Page 11 of 11