Case Name in Immigration Case - Unavailable

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
F.H.H.,
Petitioner,
-against-
KENNETH GENALO, in his official capacity
as Field Office Director of New York,
Immigration and Customs Enforcement;
TODD LYONS, in his official capacity as
Acting Director U.S. Immigrations and
Customs Enforcement; KRISTI NOEM in her
official capacity as Secretary of Homeland
Security; PAM BONDI, in her official
capacity as Attorney General,
Respondents.
MEMORANDUM & ORDER
26-CV-00525 (HG)
HECTOR GONZALEZ, United States District Judge:
On January 29, 2026, U.S. Immigration and Customs Enforcement (“ICE”) detained
Petitioner F.H.H. (“F.H.H.” or “Petitioner”) at his probation meeting in Nassau County and
transferred him to 535 Federal Plaza in Central Islip. On February 1, 2026, Petitioner was again
transferred, this time to 26 Federal Plaza in Manhattan, and he is currently detained at Orange
County Jail. Petitioner now seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2241. ECF
No. 1.1 For the following reasons, his petition for a writ of habeas corpus is GRANTED.
1 	Unless otherwise indicated, when quoting cases and the parties’ papers, the Court omits
all internal quotation marks, alteration marks, emphases, footnotes, and citations. The Court
refers to the pages assigned by the Electronic Case Files system (“ECF”).
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BACKGROUND2
Petitioner is a citizen of El Salvador who arrived in the United States in 2004 without
inspection. ECF No. 1 ¶¶ 1, 18, 20. While living in New York, Petitioner met his former
partner, who allegedly subjected him to labor trafficking and physical and psychological abuse.
Id. ¶ 21. For instance, according to Petitioner, his former partner would call the police and
falsely accuse him of abusing her, which would result in his arrest. Id. ¶ 22. In connection with
this relationship, over the course of approximately one year, Petitioner pled guilty twice to
criminal contempt in the second degree and also pled guilty to criminal contempt in the first
degree and menacing in the second degree. Id.; see also ECF No. 7-1 ¶¶ 5–6, 8–9 (Declaration
of Carla Calidonio). In 2022, Petitioner was also charged with, but not convicted of, burglary in
the second degree. ECF No. 7-1 ¶ 9; ECF No. 8-1 ¶ 16 (Declaration of Kareem Biggs).
On September 8, 2023, Petitioner was charged as removable as a noncitizen “present in
the United States without being admitted or paroled, or who arrives in the United States at any
time or place other than as designated by the Attorney General,” pursuant to 8 U.S.C.
§ 1182(a)(6)(A)(i), ordered to appear before an immigration judge, and detained under 8 U.S.C.
§ 1226(a). ECF No. 1 ¶ 24. Petitioner subsequently filed an application for asylum based on his
2 	The Court relies on evidence submitted by both parties in outlining the facts relevant to
this Order. See Hyppolite v. Noem, No. 25-cv-4304, 2025 WL 2829511, at *2 n.1 (E.D.N.Y.
Oct. 6, 2025); Munoz Materano v. Arteta, No. 25-cv-6137, 2025 WL 2630826, at *1 n.1
(S.D.N.Y. Sept. 12, 2025). The Court notes that the government does not endorse certain facts
asserted by Petitioner, such as the trafficking and abuse he allegedly suffered, but any factual
dispute between the parties has no bearing on the Court’s legal analysis.
Relatedly, after review of all the submissions, the Court finds that the Petition “present[s]
only issues of law,” and it may, therefore, be adjudicated without a hearing. See 28 U.S.C.
§ 2243 (directing courts to “determine the facts, and dispose” of habeas petitions expeditiously,
“as law and justice require”); see also Tumba Huamani v. Francis, No. 25-cv-8110, 2025 WL
3079014, at *1 n.1 (S.D.N.Y. Nov. 4, 2025).
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past persecution by the Salvadoran police and risk of future persecution. Id. ¶ 25; ECF No. 1-1
¶¶ 3, 7 (Declaration of Isabel Zuniga, Esq.).
On October 5, 2023, the New York State Office of Temporary and Disability Assistance
sent Petitioner a letter advising that he met the criteria for confirmation as a human trafficked
person in New York State. ECF No. 1 ¶ 26; see ECF No. 1-2 (New York State Notice of
Confirmation of Human Trafficking). And on February 8, 2024, the immigration judge granted
the parties’ joint motion to dismiss Petitioner’s removal proceedings, with the government
allegedly “agreeing to termination in part because it was taking F.H.H.’s allegations of
trafficking seriously.” ECF No. 1 ¶ 27; ECF No. 1-1 ¶ 8; see ECF No. 1-3 (Order on Motion to
Dismiss). Upon termination of his removal proceedings, Petitioner was released from ICE
custody with no conditions or supervision. ECF No. 1 ¶ 28.
On January 29, 2026, Petitioner was arrested by two unidentified ICE officers while
waiting to attend his bi-monthly probation meeting in Mineola. Id. ¶ 32; ECF No. 1-1 ¶ 12. He
was then transferred to 535 Federal Plaza in Central Islip, where ICE officers served him with a
new Notice to Appear, which again charged him as removable under 8 U.S.C.
§ 1182(a)(6)(A)(i).3 	ECF No. 1 ¶ 33; ECF No. 1-1 ¶ 17; ECF No. 1-4 (Notice to Appear).
According to Carla Calidonio, Assistant Field Office Director at ICE, Petitioner was next
transferred to Nassau County Correctional Facility, where he stayed from January 29, 2026, to
3 	According to Petitioner, the Notice to Appear contained numerous errors with respect to
his identifying information. ECF No. 1 ¶ 33; ECF No. 1-1 ¶ 17; ECF No. 1-4.
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February 1, 2026. ECF No. 7-1 ¶¶ 1, 11–12. On February 1, Petitioner was transferred to 26
Federal Plaza, and he is currently detained at Orange County Jail.4 Id. ¶¶ 13, 16.
Petitioner initiated the instant action by filing a petition for a writ of habeas corpus on
January 29, 2026. ECF No. 1 (“Petition”). The next day, the Court issued an Order to Show
Cause directing the government to show cause why a writ of habeas corpus should not be
granted, why it should not be ordered to immediately release Petitioner from detention, and
whether the instant Petition is controlled by this Court’s prior opinions in O.F.B. v. Maldonado,
No. 25-cv-6336, 2025 WL 3277677 (E.D.N.Y. Nov. 25, 2025), R.P.L. v. Maldonado, No. 25-cv-
6886, 2025 WL 3731864 (E.D.N.Y. Dec. 26, 2025), and Ndiaye v. Francis, No. 26-cv-0069,
2026 WL 99930 (E.D.N.Y. Jan. 14, 2026).5 See Jan. 30, 2026, Text Order. On February 4,
2026, the government filed its response. See ECF No. 8 (“Response”).
The government’s Response notes that, while it disagrees with the Court’s rejection of its
argument that 8 U.S.C. § 1225 applies to noncitizens who had been living in the country before
they were detained, it nevertheless “acknowledge[s] that [this Court’s] prior decisions in O.F.B.,
R.P.L., and Ndiaye would control the outcome here, and recognize[s] that it would be futile to
repeat the government’s statutory interpretation arguments in opposing the [instant] habeas
petition.” Id. at 3. The government also purports to “reserve[] the right to, in the future, detain
Petitioner under one or more of the subsections of § 1226(c)(1) or, as relevant, and an
4 	ICE detained Petitioner outside of this District for the reasons explained in the
government’s request to amend nunc pro tunc the Court’s January 30, 2026, Order to Show
Cause, see ECF No. 7 (Motion to Amend), which the Court granted, see February 4, 2026, Text
Order.
5 	In the interest of judicial economy, the Court does not repeat the legal discussions and
analyses from those cases in this Order but instead incorporates same by reference herein.
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administratively final removal order is issued, under 8 U.S.C. § 1231, not least § 1231(a)(2).”
Id.
Petitioner filed a reply today, February 6, 2026, in which he argues that the government
acknowledges that O.F.B., R.P.L, and Ndiaye control the outcome here, and the Court should
therefore order Petitioner’s immediate release, as the Court did in those cases. See ECF No. 9 at
1 (“Reply”). Petitioner additionally requests that the Court order the government to “return
[Petitioner] to the status of liberty he enjoyed prior to the recent re-detention,” meaning
Petitioner be free from “any electronic monitoring by [ICE] or any required in-person or phone
check-ins with ICE or its Intensive Supervision Appearance Program,” or any other “constraints
on his liberty imposed by immigration authorities.” Id. at 1–2. Finally, Petitioner points out that
despite the government’s reservation of the right to detain Petitioner in the future under 8 U.S.C.
§ 1226(c) or § 1231, the government does “not take the position that this reservation prevents the
Court from ordering Petitioner immediately released from his current detention.”6 Id. at 2.
The Court issues the instant Order today in light of its obligation to “determine the facts,
and dispose” of habeas petitions expeditiously, “as law and justice require.” 28 U.S.C. § 2243.
LEGAL STANDARD
“The writ of habeas corpus stands as a safeguard against imprisonment of those held in
violation of the law.” Harrington v. Richter, 562 U.S. 86, 91 (2011); see also Ozturk v. Hyde,
136 F.4th 382, 393 (2d Cir. 2025). A petition for a writ of habeas corpus under Section 2241
“authorizes a district court to grant a writ of habeas corpus whenever a petitioner is ‘in custody
in violation of the Constitution or law or treaties of the United States.’” Wang v. Ashcroft, 320
6 	Petitioner also advances arguments regarding the applicability and constitutionality of 8
U.S.C. § 1226(c)(1)(E), which the Court need not address to resolve the instant Petition. See
ECF No. 9 at 2–3.
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F.3d 130, 140 (2d Cir. 2003) (quoting 28 U.S.C. § 2241(c)). “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 (S.D.N.Y. June 12, 2018) (citing
Demore v. Kim, 538 U.S. 510, 516–17 (2003)).
DISCUSSION
In the instant Petition, F.H.H. seeks a writ of habeas corpus based on: (1) a violation of
the Due Process Clause of the Fifth Amendment, both with respect to procedural and substantive
due process requirements, and (2) a violation of the Immigration and Nationality Act (“INA”).
ECF No. 1 ¶¶ 76–92.
In response, the government reiterates its now-familiar position—that “ICE has properly
detained Petitioner pursuant to 8 U.S.C. § 1225(b)(2)(A), and that such detention is mandatory,”
ECF No. 8 at 3—despite sweeping rejection by district courts across the country.7 The
7 	In November, the number of nationwide cases concerning the position the government
reiterates here was approaching 400. See Barco Mercado v. Francis, No. 25-cv-6582, 2025 WL
3295903, at *4, *13 (S.D.N.Y. Nov. 26, 2025) (collecting 362 cases into appendices, one listing
350 cases where courts rejected the government’s position, and the other, listing 12 cases that
have gone the other way). To be sure, “[t]hat number has certainly increased . . . since Judge
Kaplan [in Barco Mercado] undertook a comprehensive study and compiled the appendices
listing 362 cases.” Sidqui v. Almodovar, No. 25-cv-9349, 2026 WL 251929, at *9 (S.D.N.Y. Jan.
30, 2026).
Recently, courts surveying the decisions in this Circuit and this District have found
similar results. See Tacuri v. Genalo, No. 25-cv-06896, 2026 WL 35569, at *3 (E.D.N.Y. Jan. 6,
2026) (“[I]n the last four months,” courts “within the Eastern District of New York . . . have
unanimously rejected the government’s interpretation.”).
As the government notes, it “has appealed a decision holding that Section 1226(a), as
opposed to Section 1225(b), applies.” ECF No. 8 at 3 n.3 (citing Barbosa da Cunha v. Freden,
No. 25-cv-6532, 2025 WL 3280575 (W.D.N.Y. Nov. 25, 2025), Second Cir. No. 25-3141). The
petitioners in two of the cases “in this circuit that agree with the government’s interpretation”
have appealed. See Ye v. Maldonado, No. 25-cv-6417, 2025 WL 3521298, at *2 n.7 (E.D.N.Y
Dec. 8, 2025); ECF No. 8 at 3 n.3 (citing Chen v. Almodovar, No. 25-cv-8350, 2025 WL
3484855 (S.D.N.Y. Dec. 4. 2025), Second Cir. No. 25-3169; Candido v. Bondi, No. 25-cv-867,
2025 WL 3484932 (W.D.N.Y. Dec. 4, 2025), Second Cir. No. 25-3159).
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government also notes that “it would be futile to repeat the government’s statutory interpretation
arguments in opposing the [instant] habeas petition.” Id.
The Court agrees with the government that it need not repeat its statutory interpretation
here because the result of this case is the same as that in O.F.B., 2025 WL 3277677, R.P.L., 2025
WL 3731864, and Ndiaye, 2026 WL 99930. And, for the reasons this Court has already
articulated in its decisions in those cases (and hundreds of others across the country), the Court
concludes that Petitioner is currently being detained pursuant to Section 1226 and in violation of
his rights to due process under the Fifth Amendment. See O.F.B., 2025 WL 3277677, at *3–6;
R.P.L., 2025 WL 3731864, at *2–4; Ndiaye, 2026 WL 99930, at *3; see also, e.g., Tacuri, 2026
WL 35569, at *3 (collecting cases).
Still, even if the government did repeat its statutory interpretation, and “even if the Court
ignored the problems with [it], or the hundreds of district court decisions that have confronted
this issue, and instead followed the minority view (which is [effectively] what the government
asks here), the result would be the same—Petitioner’s arrest and detention do not comport with
due process.” See O.F.B., 2025 WL 3277677, at *6.
Accordingly, because the “typical remedy” for “unlawful executive detention” is “of
course, release,” Munaf v. Geren, 553 U.S. 674, 693 (2008), the government’s ongoing detention
of Petitioner, in the face of yet another complete failure of process, entitles him to immediate
release, see also Preiser v. Rodriguez, 411 U.S. 475, 484 (1973) (“[R]elease from illegal
custody” is the “usual remedy by which a man is restored again to his liberty, if he ha[s] been
against law deprived of it.”).
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CONCLUSION
For the reasons stated above, Petitioner’s detention violates the Due Process Clause of the
Fifth Amendment, and his petition for a writ of habeas corpus, ECF No. 1, is GRANTED.
The government is directed to immediately release Petitioner from custody and is further
directed to certify compliance with the Court’s Order by filing a letter on the docket no later than
12:00 p.m. on February 9, 2026. The Court further orders that Petitioner shall not be re-detained
without notice and an opportunity to be heard at a pre-deprivation bond hearing before a neutral
decisionmaker, where Respondents will have the burden of showing that his detention is
authorized under 8 U.S.C. § 1226(a) or (c). For the avoidance of doubt, the Court concludes that
Petitioner “is entitled to release from the unlawful restrictions on his liberty—which means, in
the circumstances here, restoration of . . . the status quo ante.” Khabazha v. United States
Immigr. & Customs Enf’t, No. 25-cv-5279, 2025 WL 3281514, at *8 (S.D.N.Y. Nov. 25, 2025)
(ordering government release petitioner from “restrictions on his liberty imposed as a result of
his unlawful [detention] . . . including the ankle monitor and reporting requirements”). This
Order includes “an injunction barring deprivation [of any] of the [Petitioner’s] rights without the
requisite procedural protections.” Id.
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The Clerk of Court is respectfully directed to enter judgment consistent with the Order
and close the case.8
SO ORDERED.
/s/ Hector Gonzalez
HECTOR GONZALEZ
United States District Judge
Dated: Brooklyn, New York
February 6, 2026
8 	Nothing in this Order shall be construed as a determination on the lawfulness of the
government’s purported “right to, in the future, detain Petitioner under one or more of the
subsections of § 1226(c)(1) or, as relevant, and an administratively final removal order is issued,
under 8 U.S.C. § 1231, not least § 1231(a)(2).” ECF No. 8 at 3.
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