Villa et al v. Warden, Broome County Correctional Facility et al

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
NELLY FERNANDA LOJANO VILLA, as next friend of
HECTOR FERNANDO LOJANO VILLA
Petitioner,
v.
WARDEN, BROOME COUNTY CORRECTIONAL
FACILIY; DIRECTOR, U.S. IMMIGRATION AND
CUSTOMS ENFORCEMENT; and SECRETARY,
DEPARTMENT OF HOMELAND SECURITY,
Respondents.
9:26-cv-00397 (BKS)
Appearances:
As Next Friend of Petitioner:
Nelly Fernanda Lojano Villa
Flushing, NY 11368
Petitioner:
Hector Fernando Lojano Villa
221-141-580
Broome County Correctional Facility
P.O. Box 2047
Binghamton, NY 13902
For Respondents:
Emer M. Stack
Assistant United States Attorney
United States Attorney’s Office
100 South Clinton Street
Syracuse, New York 13261
Case 9:26-cv-00397-BKS Document 10 Filed 04/06/26 Page 1 of 10

2
Hon. Brenda K. Sannes, Chief United States District Judge:
MEMORANDUM-DECISION AND ORDER
I. 	INTRODUCTION
Nelly Fernanda Lojano Villa filed this petition pursuant to 28 U.S.C. § 2241 as next
friend of her son, Petitioner Hector Fernando Lojano Villa, a noncitizen who has been present in
the United States since August 2024. (Dkt. No. 1, at 3; Dkt. No. 6-1, ¶ 4). On September 15,
2025, Petitioner was taken into custody by Immigration and Customs Enforcement (“ICE”) in
Liverpool, New York, and is being held at Broome County Correctional Facility. (Dkt. No. 1, at
3). Petitioner asserts he has been subject to prolonged detention without a meaningful
opportunity to be heard and seeks immediate release, or, in the alternative, a bond hearing. (Id. at
2). Upon review of the petition, the Court issued an Order: directing Respondents to show cause
why the Petition for a writ of habeas corpus should not be granted; setting a briefing schedule;
scheduling oral argument; and prohibiting Respondent from moving Petitioner outside the
jurisdiction of the Northern District of New York while this matter is pending. (Dkt. No. 2). The
Government filed a response, (Dkt. No. 6), and Petitioner filed a reply, (Dkt. No. 9). On March
31, 2026, the Court held oral argument at which the Government, Petitioner, and Ms. Villa
appeared. For the reasons that follow, the petition is denied as premature.
II. 	BACKGROUND1
Petitioner is a native and citizen of Ecuador. (Dkt. No. 1, at 1). On August 9, 2024,
Petitioner “entered the United States without inspection outside a port of entry at or near Santa
Teresa, New Mexico.” (Dkt. No. 6-1, ¶ 4). Shortly thereafter, a United States Border Patrol
Agent encountered Petitioner “in the El Paso, TX Border Patrol Sector,” determined that
1 Unless otherwise noted, the facts are not disputed.
Case 9:26-cv-00397-BKS Document 10 Filed 04/06/26 Page 2 of 10

3
Petitioner had unlawfully entered the United States and took him into custody. (Dkt. No. 6-2, at
2). Petitioner was transported to the Central Processing Center in El Paso, (id.), “for expedited
removal,” (Dkt. No. 6-1, ¶ 4). Because Petitioner “claimed a fear of return to Ecuador,” he “was
referred to an asylum officer,” who determined Petitioner “demonstrated a credible fear of
persecution or torture.” (Id. ¶¶ 5–6). “As a result, on August 27, 2024, Petitioner was served with
a Notice to Appear in immigration court,” and on September 4, 2024, Petitioner was “released on
interim parole for a period of one year.”2 (Id. ¶¶ 5–6; see also Dkt. No. 6-2, at 8 (“Your parole
authorization is valid for one year beginning from the date on this notice and will automatically
terminate upon your departure or removal from the United States or at the end of the one-year
period unless ICE provides you with an extension at its discretion.”)). Petitioner’s parole expired
on or about September 4, 2025. (Dkt. No. 6-1, ¶¶ 5–6).
On September 15, 2025, as part of a “targeted enforcement operation,”3 ICE conducted a
vehicle stop in Liverpool, New York. (Dkt. No. 6-1, ¶ 7; Dkt. No. 6-2, at 13). Petitioner, who
was a passenger in the vehicle, was arrested and served with a Form I-200, Warrant for Arrest of
Alien.” (Dkt. No. 6-1, ¶ 7; Dkt. No. 6-2, at 11 (warrant finding “probable cause to believe that
[Petitioner] is removable from the United States” “based upon” “the pendency of ongoing
removal proceedings”)).
On October 17, 2025, Petitioner filed Form I-589, Application for Asylum and for
Withholding of Removal with the immigration court. (Dkt. No. 6-1, ¶ 9).
On October 22, 2025, the immigration court denied Petitioner’s request for a custody
redetermination, stating that the court did not “have the legal authority to grant bond to
2 The “Interim Notice Authorizing Parole” is dated September 3, 2024. (Dkt. No. 6-2, at 8).
3 Jamie Lojano-Villa was the target of the operation. (Dkt. No. 6-2, at 13).
Case 9:26-cv-00397-BKS Document 10 Filed 04/06/26 Page 3 of 10

4
Respondent[] present without being admitted or paroled pursuant to Matter of Hurtado, 23 I&N
Dec. 2016 (BIA 2025).” (Dkt. No. 6-2, at 15).
On November 21, 2025, Petitioner filed Form I-360 for Amerasian, Widower, or Special
Immigrant with United States Citizenship and Immigration Services (“USCIS”). (Dkt. No. 6-1, ¶
10). Ms. Lojano Villa states in a letter that Petitioner “is currently in immigration proceedings
under Special Immigrant Juvenile Status (SIJS), which has already been approved by a family
court.” (Dkt. No. 9, at 1). There is no further information regarding SIJS.
On December 17, 2025, the Department of Homeland Security (“DHS”) filed a motion to
pretermit Petitioner’s Form I-589 Application for Asylum “arguing that [Petitioner] is barred
from applying for such relief because he may be removed to Honduras . . . pursuant to an
Asylum Cooperation Agreement between the United States and Honduras.” (Dkt. No. 6-1, ¶ 11).
On January 9, 2026, after hearing arguments from the parties, the immigration court denied
DHS’s motion. (Dkt. No. 6-2, at 19–20).
On January 6, 2026, the immigration court denied Petitioner’s request for a change in
custody status, again citing Matter of Hurtado. (Id. at 17).
On January 22, 2026, the immigration court issued an order finding Petitioner removable,
denying asylum, and granting withholding of removal to Ecuador under 8 U.S.C. §
1231(b)(3)(A). (Dkt. No. 6-2, at 21, 23; Dkt. No. 6-1, ¶11).
On March 2, 2026, the immigration court denied Petitioner’s request for a change in
custody status “because [the] Court has no jurisdiction to hear bond in this case. [Petitioner] was
granted withholding of removal relief by the Court previously.” (Dkt. No. 6-2, at 25).
III. 	NEXT FRIEND STATUS
An “[a]pplication for a writ of habeas corpus shall be in writing signed and verified by
the person for whose relief it is intended or by someone acting in his behalf.” 28 U.S.C. § 2242
Case 9:26-cv-00397-BKS Document 10 Filed 04/06/26 Page 4 of 10

5
(emphasis added). “A person acting on behalf of the person for whom the habeas petition is filed
is known as a ‘next friend.’” Iza by Iza v. Larocco, No. 25-cv-6915, --- F. Supp. 3d ----, 2026
WL 31378, at *8, 2026 U.S. Dist. LEXIS 1009, at *21 (E.D.N.Y. Jan. 5, 2026) (citing Whitmore
v. Arkansas, 495 U.S. 149, 161 (1990)). The Second Circuit instructed that:
[T]here are “at least two firmly rooted prerequisites for ‘next friend’
standing.” 	“First, 	a 	‘next 	friend’ 	must 	provide 	an 	adequate
explanation – such as inaccessibility, mental incompetence, or other
disability – why the real party in interest cannot appear on his own
behalf to prosecute the action.” “Second, the ‘next friend’ must be
truly dedicated to the best interests of the person on whose behalf he
seeks to litigate.”
Doe v. Hochul, 139 F.4th 165, 177 (2d Cir. 2025) (internal citations omitted) (quoting Whitmore,
495 U.S. at 163). Several “courts in the Southern and Eastern Districts of New York have
decided habeas petitions in recent months brought by a next friend with a significant relationship
to a detainee.” Ndoye v. Joyce, No. 25-cv-8856, 2026 WL 306387, at *1 n.2, 2026 U.S. Dist.
LEXIS 24653, at *2 n.2 (S.D.N.Y. Feb. 5, 2026) (collecting cases); see also id. (allowing the
petitioner’s wife to act as next friend, finding “in part based upon the manner of his arrest and
detention, Petitioner has been unable to prosecute the action on his own behalf,” noting the
petitioner’s failure “to file the amended petition in full on the docket,” and finding that the
petitioner’s wife had shown her dedication to the petitioner’s “best interests, based on her
significant relationship to Petitioner and her conduct to date”).
In support of her request to appear as next friend to Petitioner, Ms. Lojano Villa filed a
declaration stating that she is Petitioner’s biological mother and that she is “deeply concerned
about the emotional and psychological impact that the prolonged detention is having on him.”
(Dkt. No. 1, at 3). At oral argument, Ms. Lojano Villa stated that Petitioner did not have access
to an interpreter, law library, or resources through which he could communicate with Court. The
Case 9:26-cv-00397-BKS Document 10 Filed 04/06/26 Page 5 of 10

6
court therefore concludes the petitioner’s difficulties under the present circumstances and lack of
access to resources sufficiently demonstrate inaccessibility. See Iza by Iza, 2026 WL 31378, at
*8, 2026 U.S. Dist. LEXIS 1009, at *22–23 (finding next friend sufficiently demonstrated the
courts were inaccessible to the petitioner where the petitioner, who had been detained by ICE,
had no opportunity to call counsel and was given no information on available relief, had no
access to a law library or means to prepare a pro se petition, had strict limitations on call time,
and had been “transferred from facility to facility”). Moreover, during oral argument, it was
evident to the Court that Ms. Lojano Villa, who filed the petition, appeared and participated at
oral argument, and filed a reply on Petitioner’s behalf, is truly dedicated to her son and is seeking
his best interests. Respondents take no position on this application. Accordingly, Ms. Lojano
Villa’s request is granted.
IV. 	JURISDICTION
“28 U.S.C. § 2241(c)(3) authorizes a district court to grant a writ of habeas corpus
whenever a petitioner is ‘in custody in violation of the Constitution or laws or treaties of the
United States.’” Wang v. Ashcroft, 320 F.3d 130, 140 (2d Cir. 2003) (quoting 28 U.S.C. §
2241(c)(3)). “Federal courts have jurisdiction to hear habeas corpus claims by non-citizens
challenging the constitutionality of their detention.” Lopez v. Sessions, No. 18-cv-4189, 2018
WL 2932726, at *6, 2018 U.S. Dist. LEXIS 98712, at *15 (S.D.N.Y. June 12, 2018) (citing
Demore v. Kim, 538 U.S. 510, 516–17 (2003)).
V. 	DISCUSSION
Petitioner asserts that because he has been granted “Withholding of Removal,
recognizing that Petitioner cannot safely be returned to Ecuador,” but remains in “prolonged
detention” without “a meaningful opportunity for release,” his due process rights have been
violated. (Dkt. No. 1, at 1–2). The Government responds that because Petitioner has been
Case 9:26-cv-00397-BKS Document 10 Filed 04/06/26 Page 6 of 10

7
ordered removed and the removal order was administratively final as of January 22, 2026,
Petitioner’s detention is mandatory for the ninety-day period following January 22, 2026. (Dkt.
No. 6, at 9 (citing 8 U.S.C. § 1231(a)(1)(B)(i), (a)(2)).
Section 1231 governs the detention of noncitizens following an order of removal and
states that “when an alien is ordered removed, the Attorney General shall remove the alien from
the United States within a period of 90 days (in this section referred to as the ‘removal period’).”
8 U.S.C. § 1231(a)(1)(A). Detention is mandatory during the 90-day removal period. Id. §
1231(a)(2)(A) (“During the removal period, the Attorney General shall detain the alien.”)
(emphasis added); see Zadvydas v. Davis, 533 U.S. 678, 701 (2001) (“After entry of a final
removal order and during the 90-day removal period . . . aliens must be held in custody.”).
“There are three scenarios that can trigger the start of [Section 1231’s] removal period, but only
the latest of those scenarios is the trigger.” Hechavarria v. Sessions, 891 F.3d 49, 55 (2d Cir.
2018). Those scenarios are:
(i) The date the order of removal becomes administratively
final.
(ii) If the removal order is judicially reviewed and if a court
orders a stay of the removal of the alien, the date of the
court’s final order.
(iii) If the alien is detained or confined (except under an
immigration process), the date the alien is released from
detention or confinement.
8 U.S.C. § 1231(a)(1)(B)).
The Government asserts that the first scenario, the date the removal order became
administratively final, triggered the 90-day removal period in this case. The Court agrees.
Case 9:26-cv-00397-BKS Document 10 Filed 04/06/26 Page 7 of 10

8
Petitioner does not claim to have sought judicial review of the removal order or obtained a stay4
and Petitioner is detained under an immigration process, thus neither the second nor the third
scenario are applicable. To determine the date the order of administrative removal became
administratively final, the Court finds guidance in the applicable regulations, which state, as
relevant here: that “[a]n order of removal made by the immigration judge at the conclusion of
proceedings . . . shall become final . . . (b) [u]pon waiver of appeal by the respondent.” 8 C.F.R.
§ 1241.1(b). Here, Petitioner (the respondent in the immigration court proceedings) waived
appeal of the removal order on January 22, 2026. (Dkt. No. 6-2, at 24). The order of removal
therefore became “administratively final” on January 22, 2026 and Section 1231’s 90-day
removal period—during which detention is mandatory—began on January 22, 2026, and extends
until April 22, 2026. See J.L. v. Decker, No. 22-cv-2853, 2024 WL 232115, at *5, 2024 U.S.
Dist. LEXIS 10894, at *11 (S.D.N.Y. Jan. 22, 2024) (“The removal period thus began—and the
statutory provision governing detention shifted to Section 1231—when the order of removal
became administratively final on April 20, 2022.”); see also Jumadar v. Castro, No. 26-cv-
00159, 2026 WL 392424, at *1, 2026 U.S. Dist. LEXIS 29451, at *1 (D.N.M. Feb. 11, 2026)
(finding the petitioner’s waiver of removal order on day of issuance made “removal order
administratively final on the same day”); Tai v. Warden, California City Det. Facility, No. 26-
cv-01857, 2026 WL 747138, at *1, 2026 U.S. Dist. LEXIS 55685, at *1–2 (E.D. Cal. Mar. 17,
2026) (“Petitioner and the Department of Homeland Security . . . waived the right to appeal the
removal order and it therefore became final immediately.” (citing 8 C.F.R. § 1241.1(b))).
4 It appears the time for seeking judicial review has expired. See 8 U.S.C. § 1252(b)(1) (“The petition for [judicial]
review must be filed not later than 30 days after the date of the final order of removal.”).
Case 9:26-cv-00397-BKS Document 10 Filed 04/06/26 Page 8 of 10

9
Because Petitioner is now detained under Section 1231(a)(2)(A), any claim that
Petitioner’s initial detention under 8 U.S.C. § 1226 violated due process has been rendered moot.
See Wang, 320 F.3d at 147 (finding that because the petitioner was “now subject to detention”
under 8 U.S.C. § 1231, any previously cognizable due process claim under 8 U.S.C. § 1226 has
been rendered moot”); see also Godfrey v. Ball, No. 23-7104, 2024 WL 4471571, at *1, 2024
U.S. App. LEXIS 25647, at *3 (2d Cir. Oct. 11, 2024) (explaining that “[a] due process
challenge to detention under § 1226 is rendered moot” by the occurrence of triggering scenario,
which “shifts detention authority to § 1231”); De Oliveira Jimenez v. Searls, No. 22-cv-960,
2023 WL 11134381, at *4, 2023 U.S. Dist. LEXIS 237355, at *9 (W.D.N.Y. Mar. 2, 2023)
(“The Second Circuit has held that a challenge to an order of detention under Section 1226 is
moot once a final order of removal has been entered.” (citing Wang, 320 F.3d at 147)).
In addition, any due process challenge to Petitioner’s current detention under Section
1231 “fails because his petition was either premature or is premature now” since the 90-day
removal period has not yet expired. Godfrey, 2024 WL 4471571, at *2, 2024 U.S. App. LEXIS
25647, at *3; see De Oliveira Jimenez, 2023 WL 11134381, at *5, 2023 U.S. Dist. LEXIS
237355, at *10 (dismissing the petition under “Section 1226 as moot and under Section 1231 as
premature”); Contreras Blanco v. Garland, No. 21-cv-172, 2021 WL 3667201, at *2, 2021 U.S.
Dist. LEXIS 155326, at *5 (W.D.N.Y. Aug. 18, 2021) (dismissing petition as premature where
petitioner had been detained under Section 1231 for less than two months). The Supreme Court
has held that detention of a noncitizen for up to six months during the removal period under §
1231 is “presumptively reasonable.” Zadvydas, 533 U.S. at 701. “After this 6-month period, once
the alien provides good reason to believe that there is no significant likelihood of removal in the
reasonably foreseeable future, the Government must respond with evidence sufficient to rebut
Case 9:26-cv-00397-BKS Document 10 Filed 04/06/26 Page 9 of 10

10
that showing.” Id. Thus, Petitioner’s detention will remain presumptively reasonable until at
least July 22, 2026. For that reason, the petition is premature and is denied subject to renewal
after July 22, 2026.
VI. 	CONCLUSION
Accordingly, it is
ORDERED that the request to proceed by Next Friend is GRANTED; and it is further
ORDERED that the Petition (Dkt. No. 1) is DENIED without prejudice as premature;
and it is further
ORDERED that the Clerk of the Court enter judgment accordingly and close this case;
and it is further
ORDERED that the Clerk serve this Order in accordance with the Local Rules.
IT IS SO ORDERED.
Dated: April 6, 2026
Case 9:26-cv-00397-BKS Document 10 Filed 04/06/26 Page 10 of 10