Marques de Oliveira et al v. Wesling et al

United 	States 	District 	Court
District 	of 	Massachusetts
Erica 	Stephanie 	dos 	Santos
Rocha, 	et 	al.,
Petitioners,
v.
David Wesling, 	et 	al.,
Respondents.
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Civil 	Action No.
26-10872-NMG
MEMORANDUM & ORDER
GORTON, 	J.
This 	case 	arises 	from 	the 	amended petition 	for 	writ 	of
habeas 	corpus 	(Docket 	No. 	7) 	of 	petitioner 	Erica 	Stephanie 	dos
Santos 	Rocha 	("petitioner" 	or 	"dos 	Santos 	Rocha") . 1 	She 	contends
that 	she 	is 	being unlawfully detained by David Wesling 	and 	other
named 	respondents 	(collectively, 	"respondents"). 	Because
petitioner's 	detention 	is 	lawful 	pursuant 	to 	her 	final 	removal
order, 	and because 	this 	Court 	is 	without 	jurisdiction 	to 	review
or 	stay 	that 	order, 	her 	petition will 	be 	denied .
I. 	Background
Petitioner 	is 	a 	Brazilian 	citizen who 	entered 	the 	United
States 	without 	inspection 	in October, 	2021, 	in Arizona. 	In
October, 	2022, 	petitioner 	filed 	I-589 	Applications 	for 	Asylum
1 Despite the petition being filed on behalf of her entire famil y , 	dos Santos
Rocha is the onl y person in custody .
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and 	Withholding 	of 	Removal 	before 	the 	I mmi gr a tion 	Court . 	A
hearing 	on 	those 	applications 	was 	conducted 	in 	June , 	2025 , 	at
which 	t he 	Immigration 	Judge 	denied 	petitioner ' s 	request 	for
a s ylum 	and 	ordered 	h er 	removed 	to 	Brazil .
Petitioner 	timely 	appea led 	that 	decision 	to 	the 	Board 	of
Immigration 	Appeals 	("BIA " ) 	That 	appeal 	was 	denied 	on 	January ,
26 , 	2026 . 	Soon 	thereafter , 	Immigration 	and 	Customs 	Enforcement
( "IC E" ) 	directed 	petitioner 	to 	depart 	from 	the 	United 	States 	by
February 	15 , 	2026 , 	pursuant 	to 	her 	r emoval 	order . 	On 	Febr u ary
12 , 	2026 , 	p etitioner 	filed 	emergency motions 	to 	reopen 	and 	stay
removal . 	The 	BIA 	denied 	the 	emergency motion 	to 	stay 	removal
but 	has 	yet 	to 	adjudicate 	the 	emergency mo tio n 	to 	reopen .
Petitioner 	filed 	the 	present 	petition 	o n 	Febr uary 	14 , 	2026 ,
before 	she 	was 	detained 	by 	immigration 	authorities . 	She 	updated
her 	petition 	on 	February 	19 , 	2026 , 	after 	being 	arre sted 	at 	an
ICE 	facility . 	Petitioner ' s 	husband 	has 	fi led 	a 	rela ted 	habeas
petition 	although 	he 	has 	not 	yet 	b ee n 	detained .
II. 	Petition 	for 	Writ 	of 	Habeas 	Corpus
A. Legal 	Standard
A petition 	for 	writ 	of 	hab e as 	co rpus 	pursuant 	to 	28 	U. S . C .
§2241 	permits 	a 	prisoner 	to 	challenge 	the 	ad min istration 	of 	her
detention 	rather 	than 	its 	validity . 	Dinkins 	v . 	Boncher , 	No . 	21 -
CV - 11847-AK , 	2022 	WL 	3021108 , 	at 	*2 	(D . 	Mass . 	July 	29 , 	2022) .
The 	burden 	is 	on 	petitioner 	to 	show 	that 	her 	c ustody 	violates
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the 	Constitution 	or 	laws 	of 	the 	United 	States . 	Espinoza 	v .
Sabol , 	558 	F . 3d 	83 , 	89 	(1st 	Cir . 	2009) .
Under 	8 	U. S . C . 	§123l(a) , 	an 	alien 	with 	a 	final 	removal
order 	must 	be 	detained 	for 	a 	90 - day 	removal 	period 	while 	the
government 	makes 	arrangements 	for 	the 	removal . 	Such 	detention
is 	constitutionally 	permissible 	for 	up 	to 	six 	months . 	Zadvydas
V. 	Oa Vi S , 	5 3 3 	U . S . 	6 7 8 , 	701 	( 2001) . 	Federal 	law 	divests
district 	courts 	of 	jurisdiction 	to 	stay 	removal 	orders 	and
requires 	that 	such 	requests 	be 	pursued 	administratively 	and
appealed 	to 	the 	appropriate 	circuit 	court 	of 	appeals . 	8 	U. S . C .
§1252 ; 	Compere 	v . 	Riordan , 	368 	F . 	Supp . 	3d 	164 , 	170 	(D . 	Mass .
2019) .
B . Application
Petitioner 	claims 	that 	her 	current 	detention 	is 	unlawful
because 	her 	removal 	is 	not 	imminent . 	Whether 	or 	not 	her 	removal
is 	imminent 	is , 	however , 	immaterial . 	Section 	§1231 	req u ires
that , 	during 	the 	removal 	period , 	the 	government 	" shall 	detain
the 	alien ." 	8 	U. S . C . 	§123l(a)(2)(A) . 	Because 	petitioner ' s
appeal 	to 	the 	BIA 	was 	denied 	on 	January 	26 , 	2026 , 	her 	removal
period 	began 	on 	that 	day 	and 	the 	government 	is 	mandated 	by
statute 	to 	detain 	her 	until 	at 	least 	April 	26 , 	2026 , 	to
effectuate 	her 	removal .
Petitioner 	also 	requests 	that 	the 	Court 	stay 	the 	order 	of
removal 	until 	her 	emerge ncy 	motion 	to 	reopen 	is 	adjudicated .
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She 	claims 	that 	removal 	before 	that 	time 	would 	violate 	her 	due
process 	rights 	to 	have 	her 	motion 	heard . 	The 	Court 	is ,
nevertheless , 	without 	jurisdiction 	to 	review 	the 	execution 	of 	a
removal 	order . 	§1252(g) . 	Co urt s 	in 	this 	district 	have 	found
that 	such 	a 	prohibition 	bars 	the 	issuance 	of 	a 	stay 	as 	well . 	See
Compere , 	368 	F . 	Supp . 	at 	170 ; 	Doe 	v . 	Smith , 	No . 	CV 	18 - 11363 - FDS ,
2018 	WL 	4696748 , 	at 	*11 	(D . 	Mass . 	Oct . 	1 , 	2018) .
To 	the 	extent 	that 	petit i oner 	asserts 	she 	has 	been 	deprived
of 	due 	process , 	the 	Court 	notes 	that 	she 	has 	received 	process 	in
the 	form 	of 	a 	hearing 	on 	her 	as ylum petition , 	full 	re mo val
proceedings , 	an 	appeal 	to 	the 	BIA 	on 	the 	rulings 	and 	a 	motion 	to
stay 	removal . 	She 	also 	retains 	the 	right 	to 	appeal 	her 	removal
decision 	to 	the 	appropriate 	court 	of 	appeals . 	§1252(a) (5) . 	Such
considerable 	process 	satisfies 	her 	constitutional 	rights .
ORDER
For 	the 	forgoing 	reasons , 	the 	amended 	Petition 	for 	Writ 	of
Habeas 	Corpus 	(Docket 	No . 	7) 	is 	DENIED.
So 	ordered.
Nathaniel 	M. 	GoriVn
Senior 	United 	States 	District 	Judge
Dated : 	March // , 	2026
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