Arce v. Blanche et al

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
LARRY JAVIER TORREZ ARCE,
Petitioner,
v.
TODD BLANCHE, in his official capacity as Acting
Attorney General;1 JAMES BAUSCH, in his official
capacity as Acting Deputy Field Office Director,
Buffalo Field Office, U.S. Immigration & Customs
Enforcement; PHILIP RHONEY, in his official
capacity as Deputy 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 MARKWAYNE
MULLIN, in his official capacity as Secretary of
Homeland Security,
Respondents.
9:26-cv-501
(ECC)
Matthew K. Borowski, Esq., for Petitioner
Karen Folster Lesperance, Assistant United States Attorney, for Respondents
Hon. Elizabeth C. Coombe, United States District Judge:
MEMORANDUM-DECISION AND ORDER
On March 27, 2026, Petitioner Larry Javier Torrez Arce (Arce), a citizen of Nicaragua who
has been present in the United States since March 14, 2024, was taken into custody by Immigration
and Customs Enforcement (ICE). Petition (Pet.) ¶¶ 2, 7, Dkt. No. 1. On March 27, 2026, while
he was detained at the Border Patrol facility in Oswego, New York, Petitioner filed a petition for
1 Pursuant to Federal Rule of Civil Procedure 25(d), the current Acting Attorney General, Todd
Blanche, has been substituted for his predecessor, Attorney General Pamela Bondi. The Clerk is
directed to amend the docket accordingly.
Case 9:26-cv-00501-ECC Document 13 Filed 05/21/26 Page 1 of 14

2
a writ of habeas corpus, pursuant to 28 U.S.C. § 2241. Id. at ¶¶ 7, 13. Petitioner seeks immediate
release, or in the alternative, a bond hearing, and attorney’s fees and costs under the Equal Access
to Justice Act, as amended, 28 U.S.C. § 2412. Id. at 15-16; see also id. at ¶ 13.
On March 28, 2026, the day after 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 April 10, 2026, and prohibiting Respondents from moving Petitioner
outside the Northern District of New York while the Petition is pending. Dkt. No. 2. On March
27, 2026, as requested by the parties, the Court modified its prior order to enjoin Respondents from
moving Petitioner outside the jurisdiction of the Northern or Western Districts of New York until
this civil action is resolved. Dkt. No. 5.
After considering briefing from both parties, Dkt. Nos. 1, 6, 8, and arguments made during
a hearing on April 10, 2026, the Court issued an oral decision during the hearing and a limited
order later that day granting the Petition and ordering Petitioner’s immediate release. Dkt. Nos.
10, 11. 	This decision and order provides more detailed reasons for those orders and addresses
Petitioner’s request for Equal Access to Justice Act fees and costs.
I. 	Background
Petitioner, a citizen of Nicaragua, entered the United States at the Miami International
Airport on March 14, 2024, and was paroled into the United States under the NHP-Nicaraguan
Humanitarian Parole program. Pet. ¶ 2; Response (Resp.) at 1, Dkt. No. 6. He came to the United
States to join his wife who had been in the United States since September 2023. Pet. ¶ 2.
On March 13, 2025, Petitioner filed an application for asylum, and he was issued a work
permit. Pet. at ¶ 6. At the April 10 th hearing, counsel for both parties represented that the asylum
application is still pending. 	Petitioner’s parole was terminated effective June 12, 2025 due to
Case 9:26-cv-00501-ECC Document 13 Filed 05/21/26 Page 2 of 14

3
Executive action terminating the program under which it was granted. 	Resp. at 1, 3-4. 	If
Petitioner’s parole had not been terminated, it would have expired on March 14, 2026. Id. at 1.
On March 27, 2026, Petitioner was taken into custody by ICE at a laundromat near his home in
Auburn, New York. Pet. ¶ 7. At the April 10 th hearing, counsel for Respondents represented that
Arce was taken into custody during a targeted enforcement action.
Petitioner was detained from March 27, 2026 through April 10, 2026, the day that this
Court ordered his release. Pet. ¶ 7; Dkt. Nos. 10-12.
II. 	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)). In
addition, “‘[f]ederal courts have jurisdiction to hear habeas corpus claims by non-citizens
challenging the constitutionality of their detention.’” Gaspar v. Akshar, 9:26-cv-118 (BKS), Dkt.
No. 13, at 5 (N.D.N.Y. Feb. 17, 2026) 	(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)).
“Federal courts retain jurisdiction under § 2241 to review purely legal statutory and constitutional
claims regarding the government’s detention authority, but jurisdiction does not extend to
‘discretionary judgment,’ ‘action,’ or ‘decision’ by the Attorney General with respect to either
detention or removal.” Mahmodi v. Marich, No. 25-cv-6762, 2026 WL 113473, at *2 (W.D.N.Y.
Jan. 15, 2026) (citing Jennings v. Rodriguez, 583 U.S. 281, 295 (2018) (other citations omitted)).
III. 	DISCUSSION
A. Statutory Basis for Detention
Case 9:26-cv-00501-ECC Document 13 Filed 05/21/26 Page 3 of 14

4
Petitioner argues that the applicable statute for his detention is 8 U.S.C. § 1226(a). Pet. ¶
41. “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) (citing 8 C.F.R. § 1236.1(d)(1)).
In contrast, Respondents argue that 8 U.S.C. § 1225(b)(2)(A) applies because Petitioner
“entered the United States at a place other than a lawful port of entry and without document[s]
authorizing lawful entry.” Resp. at 7 n.1. Detention under that provision is mandatory “with rare
exceptions not relevant here.” Cardenas v. Almodovar, No. 25-cv-9169, 2025 WL 3215573, at *1
(S.D.N.Y Nov. 18, 2025).
As Respondents acknowledge, “this Court has previously rejected the government’s
interpretation of the applicability of [§ 1225(b)(2)(A)],” and “the Court’s analysis in those prior
cases would govern the outcome here.” Resp. at 7 n.1. In addition, after Respondents submitted
their opposition, the Second Circuit held that a noncitizen who was detained more than 20 years
after entering without inspection and admission was not “seeking admission” when he was arrested
and that “Section 1226(a) plainly applies to noncitizens . . . who are present in the United States,
but charged as inadmissible for entering the country without inspection and admission.” da Cunha
v. Freden, --- F.4th ---, 2026 WL 1146044, at *5 (2d Cir. Apr. 28, 2026).
The Court therefore concludes that Petitioner, who was paroled into the United States
approximately two years before his arrest, was not seeking admission when he was arrested, and
Section 1225(b)(2)(A) therefore does not apply. See Perdomo Perez v. Akshar, No. 9:26-cv-120,
Dkt. No. 19 at 4-5 (N.D.N.Y. Mar. 5, 2026) (concluding that the petitioner, who was paroled into
the United States more than two years before his arrest, was not seeking admission when he was
Case 9:26-cv-00501-ECC Document 13 Filed 05/21/26 Page 4 of 14

5
arrested and that Section 1226(a), not Section 1225(b)(2)(A) applies) (citations omitted). See also
Olivares v. ICE, et al., No. 9:26-cv-203 (AMN), 2026 WL 686090, at *7 (N.D.N.Y. Mar. 11, 2026)
(same where the petitioner, “more than two years ago, made an appointment with immigration
authorities, presented himself at a port of entry, was paroled into the country, and whose asylum
application remains pending”).
Respondents, however, alternatively argue that Petitioner is nevertheless subject to
mandatory detention under 8 U.S.C. § 1225(b)(1) because he was paroled into the United States
pursuant to the humanitarian parole provision, and when his parole ended he was “returned to the
custody from which he was paroled.” Resp. at 5 (citing 8 U.S.C. § 1182(d)(5)(A)). They assert
that when his parole ended, he therefore became an arriving alien seeking admission subject to
mandatory detention under Section 1225(b)(1)(A)(i). 	Id. 	Respondents also rely on the agency
definition of “arriving alien” in 8 C.F.R. §§ 1.2, 1001.1(q) as well as Second Circuit cases
interpreting those regulations, see Resp. at 6 (citing Ibragimov v. Gonzales, 476 F.3d 125, 137
n.17 (2d Cir. 2007)), while acknowledging that those cases were decided when Chevron deference
was required and that “many of the district courts in the Second Circuit have rejected the agency’s
definition of ‘arriving alien’ in 8 C.F.R. § 1.2 as including aliens whose Section 1182(d)(5)(A)
parole has expired,” Resp. at 8 (collecting cases). In fact, Respondents cite no decisions supporting
their position since Loper Bright Enters. v. Raimondo, 603 U.S. 369, 394 (2024) was issued.
Petitioner responds that he “was released on parole by Respondents after arriving lawfully
at a port-of-entry . . . after having been granted advance permission to fly to the United States,
pursuant to a grant of parole” and that “[c]ourts in this circuit have held, under very similar facts,
that post-parole re-detention falls under 1226(a).” Dkt. No. 8 at 2 (citing Ivonin v. Rhoney, No.
6:25-cv-6673, 2026 WL 199283 (W.D.N.Y. Jan. 26, 2026)); Campbell v. Amondovar, 25-cv-9509,
Case 9:26-cv-00501-ECC Document 13 Filed 05/21/26 Page 5 of 14

6
2025 WL 3538351 (S.D.N.Y. Dec. 10, 2025); Hyppolite v. Noem, No. 25-cv-4304, 2025 WL
2829511, at *9 (E.D.N.Y. Oct. 6, 2025)). In addition, Petitioner argues that “[c]ourts have soundly
rejected” the arriving alien definition in the agency regulations. 	Dkt. No. 8 at 3 (citing, as an
example, de la Cruz v. Rhoney, 6:25-cv-6699, 2026 WL 891658 (W.D.N.Y. Apr. 1, 2026)).
“[U]nder Section 1225(b)(1), people subject to expedited removal are subject to mandatory
detention.” 	Rodriguez-Acurio v. Almodovar, 811 F. Supp. 3d 274, 293 (E.D.N.Y. 2025). 	In
addition, as relevant here, “Section 1225(b)(1) governs noncitizens: (1) who are inadmissible for
lack of proper entry documents or because they engaged in fraud or a willful misrepresentation of
a fact on their application for admission; and (2) who fall within . . . the ‘Arriving Aliens
Provision’” as noncitizens who “‘[are] arriving in the United States.’” Id. at 291, 293 (quoting 8
U.S.C. § 1225(b)(1)(A)(i) (additional citation omitted)). 	Humanitarian parole under Section
1182(d)(5)(A) is the only exception for such mandatory detention. Id. at 294 (citing Jennings, 583
U.S. at 300).
Pursuant to Section 1182(d)(5)(A), “an applicant for admission detained under Section
1225(b)(1) . . . ‘may be temporarily released on parole ‘for urgent humanitarian reasons or
significant public benefit.’” Id. at 294 (quoting Jennings, 583 U.S. at 288). See also 8 U.S.C. §
1182(d)(5)(A) (authorizing the Secretary of Homeland Security to, “in his discretion parole into
the United States temporarily . . . on a case-by-case basis for urgent humanitarian reasons or
significant public benefit any alien applying for admission to the United States. . . .’” Id. at 11.
“[B]ut such parole of such alien shall not be regarded as an admission of the alien,” and
when the purposes of such parole shall, in the opinion of the Secretary of Homeland
Security, have been served the alien shall forthwith return or be returned to the
custody from which he was paroled and thereafter his case shall continue to be dealt
with in the same manner as that of any other applicant for admission to the United
States.
Case 9:26-cv-00501-ECC Document 13 Filed 05/21/26 Page 6 of 14

7
8 U.S.C. § 1182(d)(5)(A). Finally, “a Section 1182(d)(5)(A) parolee’s ‘physical presence within
the United States cannot be said to be unlawful or illegal because it is authorized by the Attorney
General and parole has long been understood to constitute lawful status.’” Rodriguez-Acurio, 811
F. Supp. 3d at 294 (quoting United States v. Balde, 943 F.3d 73, 84 (2d Cir. 2019)).
According to agency regulations, “[a]n arriving alien remains an arriving alien even if
paroled pursuant to section 212(d)(5) of the Act, and even after any such parole is terminated or
revoked.” 	8 C.F.R. § 1.2. 	See also 8 C.F.R. § 1001.1(q) (as relevant here, “[a]n arriving alien
remains an arriving alien even if paroled pursuant to section 212(d)(5) of the Act, and even after
any such parole is terminated or revoked.”). Since the Supreme Court’s decision in Loper Bright
Enters. v. Raimondo, courts no longer defer to agency statutory interpretation and instead “must
exercise independent judgment in determining the meaning of statutory provisions,” even though
they may still “seek aid from the interpretations of those responsible for implementing particular
statutes.” 603 U.S. 369, 394 (2024).
After carefully considering the government’s arguments, for the reasons articulated by
other district courts in this Circuit, this Court concludes that the plain meaning of “arriving,”
“arrival,” and “arrive,” “appear to refer to a process that occurs upon physical entry into the United
States, ‘not an interminable . . . status’ that attached to a noncitizen upon arrival.” 	Rodriguez-
Acurio, 811 F. Supp. 3d at 306; see also De la Cruz, 2026 WL 891658, at *7 (agreeing with
Rodriguez-Acurio); Qasemi v. Francis, No. 25-cv-10029, 2025 WL 3654098, at *6 (S.D.N.Y. Dec.
17, 2025) (same). See also id. (“there can be no doubt that upon his parole into the interior of the
country, [the petitioner] had arrived in the United States and was no longer a noncitizen arriving
in the United States” and “[i]t would try any plain understanding of the term arrival to classify an
Case 9:26-cv-00501-ECC Document 13 Filed 05/21/26 Page 7 of 14

8
individual like [the petitioner] who has lived and worked in the United States for over a year prior
to his re-detention as an arriving alien”).
The regulatory definition of “arriving alien” articulated in 8 C.F.R. § 1001.1(q) does not
alter this conclusion because, as other district courts in this Circuit have explained, it “runs counter
to the clear and unambiguous statutory language.” De La Cruz, 2026 WL 891658, at *8 (citing
Qasemi, 2025 WL 3654098, at *6-8 (declining to defer to 8 C.F.R. § 1001.1(q) and interpreting
Section 1225(b)(1)(A)(i) according to its plain language); Rodriguez-Acurio, 811 F. Supp. 3d at
307-08 (same) (additional citations omitted). See also id. at 302 (“Section 1182(d)(5)(A) suggests
that rather than reverting to any prior status, a noncitizen whose parole has expired is treated like
the vast majority of undocumented immigrants currently living in this country who are not
subjected to expedited removal”).
As a result, given that Petitioner entered the United States approximately two years before
he was arrested, he was not “arriving” in the United States when he was arrested, and Section
1226(a), not Section 1225(b)(1) applies. 	See id. at 307 (concluding that a noncitizen initially
detained in Texas after illegally entering the United States who was then paroled into the United
States under Section 1182(d)(5)(A) was not arriving in the United States more than four years later
when she was arrested); see also Qasemi, 2025 WL 3654098, at *12 (concluding that “any
determination as to [the petitioner’s] detention must be conducted under the discretionary
framework of Section 1226(a), which ‘governs the process of arresting and detaining noncitizens
who have already entered the United States pending their removal’” and “[t]hat language describes
[the petitioner], who is undoubtably within the United States pending the adjudication of his
asylum claim.”); id. at *11 (noting that “[e]very court that this Court is aware of that has considered
the question has determined the same”) (collecting cases); Covelli-Chapparo v. Bondi, --- F. Supp.
Case 9:26-cv-00501-ECC Document 13 Filed 05/21/26 Page 8 of 14

9
3d ---, 2026 WL 118842, at *6 (E.D.N.Y. Jan. 15, 2026) (concluding that Section 1225(b)(1) was
not applicable where the petitioner was paroled into the United States under Section 1182(d)(5)(A)
more than three years before his arrest and had a pending asylum petition); Cabrera-Lopez v. Hyde,
No. 2:26-cv-17, 2026 WL 540131, at *6 (D. Vt. Feb. 26, 2026) (same where the petitioner was
paroled into the United States under Section 1182(d)(5)(A) more than two years before her arrest);
Ruiz v. Trump, No. 2:26-cv-12, 2026 WL 323254, at *5 (D. Vt. Feb. 6, 2026) (same where the
petitioner was paroled into the United States under Section 1182(d)(5)(A) more than two years
before his arrest).
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.” 	Mathews 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.” Velasco Lopez, 978 F.3d
at 850).
Case 9:26-cv-00501-ECC Document 13 Filed 05/21/26 Page 9 of 14

10
Courts apply the three-factor balancing test articulated in Mathews: “(1) ‘the private
interest that will be affected by the official action’; (2) ‘the risk of an erroneous deprivation of
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 Mathews, 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 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.”) (additional citations omitted)).
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) Petitioner is a risk of flight or a danger to the community, or (2)
anyone considered whether, given his specific situation, Petitioner was a risk of flight or a danger
to the community. 	In fact, at the hearing, Respondents acknowledged that there is no evidence
that anyone made an individualized assessment of Petitioner’s situation, including whether he was
a risk of flight or a danger to the community before his arrest, and that the only changed
circumstances was the change in his parole status. As a result, there is a high risk of erroneous
deprivation of Petitioner’s liberty. 	See, e.g., Rodriguez-Acuriao, 811 F. Supp. 3d at 318
(concluding that [the petitioner’s] detention without any notice or opportunity to be heard,
Case 9:26-cv-00501-ECC Document 13 Filed 05/21/26 Page 10 of 14

11
including an individualized assessment into whether she poses a flight or public safety risk, such
as ‘any change in circumstances’ since her release on temporary parole in September 2021
establishes a high risk of erroneous deprivation of her protected liberty interest”) (citations
omitted).
Regarding the third factor, the Government certainly has a strong interest in “ensuring the
appearance 	of 	aliens 	at 	future 	immigration 	proceedings” 	and 	“preventing 	danger 	to 	the
community.” Zadvydas, 533 U.S. at 690 (alterations and citations omitted). On the other hand, as
the Second Circuit recognized in Velasco Lopez, “the Government has not articulated an interest
in the prolonged detention of noncitizens who are neither dangerous nor a risk of flight.” 978 F.3d
at 854. 	Under the specific circumstances of this case—where Respondents have presented no
evidence that Petitioner is a danger to the community or a flight risk, Petitioner has been living in
the United States for approximately two years, Petitioner was issued a work permit in 2025 after
he filed an asylum petition, and his asylum petition is still pending—the Court concludes that the
government’s interest is minimal. See Hassan v. Bondi, 9:26-cv-319 (BKS), Dkt. No. 10 at *12
(concluding “that Respondent’s interest in Petitioner’s detention is minimal”) (citing Crespo
Tacuri, 2026 WL 35569, at *7 (“[T]he government’s interest in continued detention is slight
insofar as petitioner was detained without an individualized custody determination that evaluated
dangerousness and flight risk or any articulated change in circumstances”)).
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
Case 9:26-cv-00501-ECC Document 13 Filed 05/21/26 Page 11 of 14

12
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 15-16. 	The Government responds that Petitioner is not
entitled to a bond hearing because his detention is lawful. Resp. at 1.
The appropriate remedy is release. See Gaspar, Dkt. No. 13 at 18-19 (collecting cases);
Cardenas, 2025 WL 3215573, at *3 (citing Lopez Benitez, 2025 WL 2371588, at *15 (reaching
that result by applying the Mathews test); Tumba Huamani, 2025 WL 3079014, at *8-9 (reaching
that result, but concluding that the Mathews test does not apply)); see also Rodriguez-Acurio, 811
F. Supp. 3d at 320-21 (concluding that where ICE detained the Petitioner “under the wrong statute
and without any notice or opportunity to be heard, much less the procedures required under Section
1226(a),” then “a post-deprivation bond hearing before a DHS officer or even an immigration
judge would provide no genuine opportunity for relief because the detention without adequate pre-
deprivation procedures has already been carried out.”)
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, 811 F. Supp. 3d at 320-21 (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)).
D. 	Attorney’s Fees and Costs
Petitioner requests reasonable attorney’s fees and costs under the Equal Access to Justice
Act, as amended, 28 U.S.C. § 2412, but has not yet filed an application. Pet. ¶ 13. Respondents
did not address this request in their response.
Case 9:26-cv-00501-ECC Document 13 Filed 05/21/26 Page 12 of 14

13
“A party seeking fees under the EAJA must make an application within thirty days after
final judgment in the action.” 	Barbour v. Colvin, No. 12-cv-548, 2013 WL 7206218, at *1
(E.D.N.Y. Aug. 1, 2013) (citing 28 U.S.C. § 2412(d)(1)(B)). Under the EAJA, a final judgment
is “a judgment that is final and not appealable.” 28 U.S.C. § 2412(d)(2)(G). “The 30-day EAJA
clock begins to run after the time to appeal that ‘final judgment’ has expired.’” 	Melkonyan v.
Sullivan, 501 U.S. 89, 96 (1991). When the United States is a party, the deadline to appeal is 60
days after the entry of judgment. 28 U.S.C. § 2107.
Petitioner’s request for attorney’s fees and costs “is premature as a ‘final judgment’ has
not yet been entered in the case.” 	United States v. $65,000 in U.S. Currency, No. 1:13-cv-773
(NAM/RFT), 2019 WL 452043, at *4 (N.D.N.Y. Feb. 5, 2019). See Barbour, 2013 WL 7206218,
at *1 (concluding that an application for attorney’s fees was premature where the application was
filed before the time for appeal had elapsed and that the Court therefore “lacked subject matter
jurisdiction to entertain” the application). 	As a result, given that this portion of the Petition is
premature, it is denied with leave to renew. Any application for attorney’s 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.
For these reasons, it is
ORDERED that the Petition for a writ of habeas corpus, Dkt. No. 1, is GRANTED except
that Petitioner’s request for reasonable attorney’s fees and costs under the Equal Access to Justice
Act is DENIED WITH LEAVE TO RENEW because it is premature, and any application for
attorney’s 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
Case 9:26-cv-00501-ECC Document 13 Filed 05/21/26 Page 13 of 14

14
ORDERED that the Court’s prior Order, Dkt. No. 10, is incorporated; and it is further
ORDERED that the Clerk of the Court enter judgment accordingly and close this case.
IT IS SO ORDERED.
Dated: May 21, 2026
Case 9:26-cv-00501-ECC Document 13 Filed 05/21/26 Page 14 of 14