Perez v. Bondi et al

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
ADELSO ROMEO BRAVO PEREZ,
Petitioner,
v.
PAMELA BONDI, in her official capacity as U.S.
Attorney General; PHILIP RHONEY, in his
official capacity as Deputy Field Office Director,
Buffalo Field Office, U.S. Immigration &
Customs Enforcement; TAMMY MARICH, in her
official capacity as Field Office Director, Buffalo
Field Office, U.S. Immigration & Customs
Enforcement; TODD LYONS, in his official
capacity as Acting Director, U.S. Immigration and
Customs Enforcement; and KRISTI NOEM, in her
official capacity as Secretary of Homeland
Security,
Respondents.
9:26-cv-205
(ECC)
Matthew K. Borowski, Esq., for Petitioner
Emer M. Stack, Assistant United States Attorney, for Respondents
Hon. Elizabeth C. Coombe, United States District Judge:
MEMORANDUM DECISION AND ORDER
On February 10, 2026, Petitioner Adelso Romeo Bravo Perez, a noncitizen who has been
present in the United States since 2006 or 2007, was taken into custody by Immigration and
Customs Enforcement (ICE). Petition (Pet.) ¶¶ 1, 2, 6, Dkt. No. 1. On the same day, while detained
at the ICE Enforcement and Removal Operations Sub Office in Mattydale, New York, Petitioner
filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. Id. at ¶¶ 7, 14, 18, 20.
Petitioner seeks immediate release and an order that he not be re-detained “without a pre-
deprivation hearing with adequate advance notice, or in the alternative, that he be released
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“pending a bond hearing to be held pursuant to 8 U.S.C. § 1226(a) within 7 days at which the
government bears the burden to demonstrate, by clear and convincing evidence, that the petitioner
is a danger to the community or a flight risk.” Id. at 17-18.1 Plaintiff also seeks a declaration that
“ICE’s July 8 policy and the BIA’s Matter of Yajure Hurtado decision” are unlawful and seeks
attorney’s fees and costs under the Equal Access to Justice Act (EAJA), as amended, 28 U.S.C. §
2412. Id. at 17.
On February 10, 2026, the same day that the petition was filed, the Court issued an order
directing Respondents to show cause why the petition should not be granted, setting a briefing
schedule, scheduling oral argument for February 13, 2026, and prohibiting Respondents from
moving Petitioner outside the jurisdiction of the Northern and Western Districts of New York
while the petition is pending. Dkt. No. 5.
After considering briefing from the parties, Dkt. Nos. 1, 6, 7, 8, 9, and arguments made
during a hearing, on February 20, 2026, the Court issued an order granting the Petition to the extent
that the Court ordered Respondents to afford Petitioner an individualized bond hearing before an
immigration judge within 10 days of the order. Dkt. No. 10. A bond hearing was held on February
27, 2026, and bond was set. 	Dkt. No. 11. 	This decision provides additional reasoning for the
February 20, 2026 order and addresses Petitioner’s request for EAJA fees and costs.
I. 	Background
Petitioner, a citizen of Guatemala, entered the United States without inspection in 2006 or
2007. Pet. ¶ 1. On August 18, 2023, he filed an application for asylum and was issued a work
permit. Id. at ¶ 5. At a hearing on February 13, 2026, counsel for Petitioner represented that the
asylum application is still pending.
1 Citations to page numbers are to the pages generated by the CM/ECF system.
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On February 10, 2026, Petitioner was taken into custody after a traffic stop. 	Id. at ¶ 6. On
the same day, he was served with a Warrant for Arrest of Alien, I-200 citing to Sections 236 (8
U.S.C. § 1226) and 287 (8 U.S.C. §1357) of the Immigration and Naturalization Act, and not
mentioning Section 235 (8 U.S.C. §1225(b)(2)(A)). Dkt. No. 6-4 at 4. He was also served with a
Notice to Appear, Form I-862 stating that he was subject to removal pursuant to Sections
212(a)(6)(A)(i) and (a)(7)(A)(i)(I) of the Immigration and Nationality Act. 	Dkt. No. 6-4 at 5, 8.
II. 	JURISDICTION
“‘28 U.S.C. § 2241 authorizes a district court to grant a writ of habeas corpus whenever a
petitioner is ‘in custody in violation of the Constitution or laws . . . of the United States.’’” Gaspar
v. Akshar, No. 9:26-cv-118 (BKS), 2026 WL 699369, at *1 (N.D.N.Y. Feb. 17, 2026) (quoting
Wang v. Ashcroft, 320 F.3d 130, 140 (2d Cir. 2003) (quoting 28 U.S.C. § 2241(c)(3)). In addition,
“‘[f]ederal courts have jurisdiction to hear habeas corpus claims by non-citizens challenging the
constitutionality of their detention.’” Id. (quoting Lopez v. Sessions, No. 18-cv-4189, 2018 WL
2932726, at *6 (S.D.N.Y. June 12, 2018) (citing Demore v. Kim, 538 U.S. 510, 516-17 (2003)).
III. 	DISCUSSION
A. Statutory Basis for Detention
Petitioner argues that the applicable statute for his detention is 8 U.S.C. § 1226(a).
“Detention pending adjudication of removal under Section 1226 is discretionary and affords
noncitizens detained thereunder the right to an initial determination as to eligibility for release and
the opportunity for a bond hearing upon detention.” Tumba Huamani v. Francis, No. 25-cv-8110,
2025 WL 3079014, at *2 (S.D.N.Y. Nov. 4, 2025). In contrast, Respondents argue that 8 U.S.C.
§ 1225(b)(2)(A) applies. Detention under that provision is mandatory “with rare exceptions not
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relevant here.” Cardenas v. Almodovar, No. 25-cv-9169, 2025 WL 3215573, at *1 (S.D.N.Y Nov.
18, 2025).
This Court previously rejected Respondents’ argument and decided that Section 1226(a)
applies to the detention of noncitizens who are living in the United States after an earlier illegal
entry.2 	See Perdomo Perez v. Akshar, No. 9:26-cv-120, Dkt. No. 19 at 4-5 (N.D.N.Y. Mar. 5,
2026) (citing cases). As a result, Petitioner, who entered the country almost 20 years ago, was not
seeking admission when he was arrested, and Section 1226(a), not Section 1225(b)(2)(A), applies.
See id. (citing cases).
Respondents acknowledge that this Court previously rejected its argument in Perdomo
Perez, but argue that case is distinguishable because, unlike the Perdomo Perez petitioner, this is
Petitioner’s first detention. Dkt. No. 6 at 6. 	Respondents cite no legal authority supporting this
argument. In addition, “courts have rejected lack of contact with immigration authorities as a basis
for applying the mandatory detention provisions of Section 1225.” Hassan v. Bondi, No. 9:26-cv-
319, at 6-7 (BKS) (N.D.N.Y. Apr. 1, 2026) (citing Acuapan v. Bondi, No. 26-cv-00384, 2026 WL
507889, at *3 (E.D.N.Y. Feb. 24, 2026) (“The fact that Petitioner did not have contact with
immigration authorities upon re-entry . . . has no bearing on the statutory basis for his detention,
as courts have consistently held that noncitizens who enter without such contact are still subject to
§ 1226.”) (citing cases); R.P.L. v. Maldonado, No. 25-cv-6886, 2025 WL 3731864, at *1–2,
2 	There is no binding authority from the Supreme Court or the Second Circuit, and the three
Circuits that have considered this issue have reached different conclusions. The Fifth and Eighth
Circuits agreed with the Government’s position. Avila v. Bondi, No. 25-3248, --F.4th --, 2026 WL
819258, at *6 (8th Cir. Mar. 25, 2026); Buenrostro-Mendez v. Bondi, No. 25-20496, 2026 WL
323330 (5th Cir. Feb. 6, 2026). 	But, in the context of whether the Government was likely to
succeed on the merits of its argument that noncitizens arrested by ICE without a warrant could be
held under Section 1225(b)(2)(A), the Seventh Circuit concluded that the Government was not
likely to succeed on the merits of its argument. Castanon-Nava v. U.S. Dep’t of Homeland Sec.,
161 F.4th 1048, 1062 (7th Cir. 2025).
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(E.D.N.Y. Dec. 26, 2025) (finding Section 1226 applied where the petitioner had been living in
the United States for “decades” and whose 2025 arrest was “his first encounter with immigration
authorities”)). 	As a result, the fact that this is Petitioner’s first immigration detention does not
change the decision to apply Section 1226.3
B. 	Required Due Process
The next question is whether Petitioner’s detention violates due process. Noncitizens, like
Petitioner, are protected by the Fifth Amendment’s Due Process Clause guaranteeing that they
cannot be deprived of liberty “without due process of law.” Zadvydas v. Davis, 533 U.S. 678, 693
(2001). 	“Freedom from imprisonment—from government custody, detention, or other forms of
physical restraint—lies at the heart of the liberty that Clause protects.” Id. at 690. 	In addition,
that liberty interest protects people from detention without “notice of the case against him and
opportunity to meet it.” 	Matthews v. Eldridge, 424 U.S. 319, 348 (1976). 	“Habeas review is
available to challenge ‘the lawfulness of detention when it is first imposed’ as well as ‘to challenge
whether, at some point, an ongoing detention has become unlawful.’” Gaspar, 2026 WL 699369,
at * 7 (quoting Velasco Lopez v. Decker, 978 F.3d 842, 850 (2d Cir. 2020)). “‘The Supreme Court
has been unambiguous that executive detention orders, which occur without the procedural
protections required in courts of law, call for the most searching review.’” Id. at 15-16 (quoting
Velasco Lopez, 978 F.3d at 850 (additional citation omitted)).
Courts apply the three-factor balancing test articulated in Matthews: “(1) ‘the private
interest that will be affected by the official action’; (2) ‘the risk of an erroneous deprivation of
3 The fact that ICE served Petitioner with a Form I-200 arrest warrant further supports this
conclusion. 	See Hassan, Dkt. No. 10 at 7-8) (concluding that the warrant “undermines
Respondents’ position that Petitioner is being detained pursuant to Section 1225(b)(2)” because
the warrant cites to provisions corresponding to Section 1226, not Section 1225).
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such interest through the procedures used, and the probative 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.’” Gaspar, 2026 WL 699369, at *8 (quoting Velasco Lopez, 978 F.3d at
850) (in turn quoting Matthews, 424 U.S. at 335)).
Regarding the first factor, Petitioner has established a liberty interest in being released from
imprisonment. See Crespo Tacuri v. Genalo, No. 25-cv-6896, 2026 WL 35569, at *7 (E.D.N.Y.
Jan. 6, 2026) (concluding that Petitioner had a “cognizable private interest in being freed from
unlawful detention”) (citing, among others, Hamdi v. Rumsfeld, 542 U.S. 507, 529 (2004) (“[T]he
most elemental of liberty interests [is] the interest in being free from physical detention by one’s
own government.”)).
Regarding the second factor, Respondents have not provided any evidence that Petitioner
had an opportunity to post bond or argue for release on conditions. In addition, there is nothing in
the record indicating that (1) Perez is a risk of flight or a danger to the community, or (2) anyone
considered whether, given his specific situation, Perez was a risk of flight or a danger to the
community. As a result, there is a high risk of erroneous deprivation of Petitioner’s liberty. See
Gaspar, 2026 WL 699369, at *8 (“The risk of erroneous deprivation of Petitioner’s liberty is
therefore high.”) (citing Valdez v. Joyce, 803 F. Supp. 3d 213, 218 (S.D.N.Y. 2025) (“Petitioner’s
re-detention without any change in circumstances or procedure establishes a high risk of erroneous
deprivation of his protected liberty interest.”) and Singh, 2026 WL 233216, at *9 (“finding ‘the
risk of erroneous deprivation of Petitioner’s liberty interest’ was ‘high’ where it was undisputed
‘that no individualized determination was made prior to or contemporaneously with the decision
to detain Petitioner in December 2025, and there was no change in circumstances from the time
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DHS released Petitioner on his own recognizance in March 2024 to his re-arrest and detention in
December 2025”)).
Regarding the third factor—the Government’s “interests in ‘ensuring the appearance of
aliens at future immigration proceedings’ and ‘preventing danger to the community”—the Court
concludes that interest is low given that there is no evidence that Petitioner is a danger to the
community or a flight risk, Petitioner has been living in the United States for almost 20 years, and,
Petitioner was issued a work permit in 2023 after he filed an asylum petition. See Hassan, 9:26-
cv-319, Dkt. No. 10 at *12 (concluding “that Respondent’s interest in Petitioner’s detention is
minimal”) (citation omitted).
The Court therefore finds that Petitioner’s detention violates his rights under the Due
Process Clause of the Fifth Amendment.
C. 	Remedy
Petitioner seeks immediate release or, in the alternative, that he be released “pending a
bond hearing to be held pursuant to 8 U.S.C. § 1226(a) within 7 days at which the government
bears the burden to demonstrate, by clear and convincing evidence, that the petitioner is a danger
to the community or a flight risk.” Pet. at 17-18. 	The Government responds that “if the Court
finds Petitioners’ detention is not authorized by 8 U.S.C. § 1225(b)(2)(A), then the appropriate
remedy is a bond hearing at which Petitioner bears the burden of proof.” Dkt. No. 8 at 1.
Under the circumstances of this case—where Petitioner did not have any interaction with
immigration authorities when he entered the country, and he filed the Petition when he had been
detained for less than one day—the Court finds that the appropriate remedy is a bond hearing. See
Hassan v. Bondi, No. 9:26-cv-319, Dkt. No. 10 at 13 (BKS) (N.D.N.Y. Apr. 1, 2026) (ordering a
bond hearing before an immigration judge) (citing Romero Perez v. Francis, No. 25-cv-8112, 2025
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WL 3110459, at *3 (S.D.N.Y. Nov. 6, 2025) (same); Sun v. Almodova, No. 25-cv-9262, 2025 WL
3241268, at *3 (S.D.N.Y. Nov. 20, 2025) (same)).
In addition, Respondents are enjoined from denying Petitioner bond in any subsequent
proceeding on the grounds that he must be detained under 8 U.S.C. 1225(b)(2)(A) absent a change
in relevant circumstances. See Rodriguez-Acurio, 2025 WL 3314420, at *32-33 (concluding that
“[t]his additional relief is necessary in order to ensure that the release of [Petitioner] pursuant to
this Opinion and Order is not rendered meaningless” and, “[a]s a result, the relief ordered here
falls within the ‘core of habeas.’”) (quoting Dep’t of Homeland Sec. v. Thuraissigiam, 591 U.S.
103, 119 (2020)).
For these reasons, it is
ORDERED that the Petition for a writ of habeas corpus, Dkt. No. 1, is GRANTED; and
it is further
ORDERED that the Court’s prior Order, Dkt. No. 10, is incorporated; and it is further
ORDERED that Petitioner’s request for reasonable attorney’s fees and costs under the
Equal Access to Justice Act is GRANTED and any request for such fees and costs shall be filed
no later than 30 days after the 60-day appeal period runs under Fed. R. App. P. 4(a)(1)(B), and any
response is due within 21 days after Petitioner’s application is filed; and it is further
ORDERED that the Clerk of the Court enter judgment accordingly and close this case.
IT IS SO ORDERED.
Dated: April 7, 2026
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