Case Name in Immigration Case - Unavailable

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------------------------x
ERRON ANTHONY CLARKE,
Petitioner,
v.
U.S. DEPARTMENT OF HOMELAND
SECURITY, et al.
Respondents.
----------------------------------------------------x
MEMORANDUM
& ORDER
25-CV-6773 (GRB)
GARY R. BROWN, United States District Judge:
In a government of laws, existence of the government will be imperiled if it fails to
observe the law scrupulously . . . If the government becomes a lawbreaker, it breeds
contempt for law; it invites every man to become a law unto himself; it invites
anarchy.
-Justice Louis Brandeis
Olmstead v. United States (1928)
This opinion sets forth the bases for this Court’s emergency bail determination
herein, which include the inhumane and unlawful treatment of the Petitioner (and
many others) by U.S. Immigration and Customs Enforcement (ICE). The disturbing
revelations that follow are rendered more egregious because some depredations
inflicted by ICE were undertaken1 within the confines of the Central Islip Federal
1 	Notably, regarding ICE’s decision to house detainees overnight in the Central Islip
facility, as has resurfaced in recent Government litigation, “the Suffolk County
Bargain and Sale Deed conveying the land on which the Courthouse in Central Islip
[] sits to the federal government [provides that] ‘[t]he Federal Courthouse and Federal
Building shall not be designed or altered for the overnight housing and/or custody
of prisoners or detainees.’” 	See Hernandez Lazo v. Noem, et al., 25-CV-6639 (NJC)
(EDNY) (citing U.S. v. Deronian, 25-cr-210 (SJB) (EDNY)).
FILED
CLERK
U.S. DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
LONG ISLAND OFFICE
12/18/2025 11:49 am
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Courthouse, a facility built “to guard the Constitution and the rights of individuals
from [ ] dangerous innovations in the government.”2
Appallingly, in this matter, little of the following is disputed: Erron Anthony
Clarke entered the United States legally at the behest of an employer. He has no record
of violence, drug use or criminal history.3 On December 5, 2025, ICE agents arrested
and detained Clarke. He became one of nine men locked in a putrid and cramped
“hold room” – a small cell containing an open toilet – designed to briefly detain a single
individual. ICE held them, day after day, without access to bunks, bedding, soap,
showers, toothbrushes or clean clothes. The space is unheated or poorly heated at
night, while the outside temperature dropped to as low as 21 degrees. The men were
provided two packaged meals a day. To the extent they could sleep, they did so,
crammed on the filthy floor, while the lights blared 24 hours a day.
ICE agents transported Clarke to the Nassau County Correctional Center
(“NCCC”), a facility that houses accused and convicted violent criminals, but at least is
designed for residential detention of arrestees. That period of relatively humane
treatment ended abruptly.4 On December 9, ICE agents returned Clarke to the Central
2 	Alexander Hamilton, The Federalist Papers, No. 78.
3 	While Clarke did overstay his visa, such action is not a criminal offense. Arizona v.
United States, 567 U.S. 387, 407 (2012) (“As a general rule, it is not a crime for a
removable alien to remain present in the United States.”).
4 	“ICE is confident in the ability of its state and local partners to lawfully, safely, and
humanely manage detainees in a correctional setting.” USCIS, National Detention
Standards, Revised 2019 at 2. https://www.ice.gov/doclib/detention-
standards/2019/nds2019.pdf. For reasons unknown, this statement appears to have
been excised from the 2025 revision of these standards.
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Islip hold room, where he would spend two more days and nights in the same
inhumane conditions. Only hours before Clarke was supposed to appear before this
Court, ICE, ignoring this Court’s order to produce him for a hearing, removed Clarke
from the Central Islip Courthouse and transported him to a private detention facility in
Newark, New Jersey.
For its part, during the pendency of this proceeding, USCIS has (1) filed sworn
evidence from a supervisory officer containing rank hearsay and demonstrably false
statements, (2) ignored at least three court directives and (3) blatantly refused to comply
with a court order.
On December 11, 2025, at a hearing at which Clarke was forced to participate by
telephone, this Court ordered his immediate release on bail.
ICE again held him overnight before, finally, releasing him on December 12.
This decision follows.
FACTS
Clarke, a national of Jamaica, entered the United States with a Jamaican passport,
and an H-2B visa5 issued by the U.S. Government in 2018. Docket Entry (“DE”) 6 at 4-6.
He remained employed, proving to be an “exemplary employee with no history of
violence, drug-related activities nor criminal activity.” DE 1 at 3; cf. DE 10 at 11. When
his visa expired in November 2018, Clarke remained in the United States without
5 	“The H-2B program allows U.S. employers or U.S. agents who meet specific
regulatory requirements to bring foreign nationals to the United States to fill
temporary nonagricultural jobs.” https://www.uscis.gov/working-in-the-united-
states/temporary-workers/h-2b-temporary-non-agricultural-workers.
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authorization. In 2023, he married a U.S. citizen, which may entitle him to permanent
residency in the United States. DE 6 at 8.
On November 6, 2025, Clarke’s spouse filed an application with DHS for
“Adjustment of Status to permanent residence,” along with a copy of their 2023 New
York State marriage license, sponsoring him for permanent legal residency (the
Adjustment Application). DE 1 at 2; DE 6 at 13-14. The Adjustment Application
remains pending. Id. In that application, Clarke truthfully acknowledged that he had
“worked in the United States without authorization” and thereby “violated the terms or
conditions of [his] nonimmigrant status.” DE 9-1 at 6. On November 15, 2025, DHS
issued a notice to Clarke directing him to appear at an office in Hauppauge on
December 5, 2025, at 11 a.m. DE 6 at 17 (the “Biometrics Notice”). That notice
explained that “[t]o process your application [ ], U.S. Citizenship and Immigration
Services (USCIS) must collect your biometrics.” Id. The Government has submitted
sworn evidence that the Biometrics Notice and the resultant December 5, 2025,
appointment was “a regular part of his application.” DE 9-1 at 2.
ICE claims that the filing of the Adjustment Application on November 5, 2025,
led to the commencement of an “investigation” that “confirmed what the Petitioner
stated . . . that he had remained in the United States” after the expiration of his visa. Id.
In other words, ICE’s “investigation” revealed that Clarke’s statements were true, and
the investigation consisted principally – if not exclusively – of an ICE agent
“review[ing] federal databases to confirm that the Petitioner had overstayed his visa, as
he had indicated on that form.” Id. at 1. One cannot imagine such an investigation –
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purportedly commencing with Clarke’s November 6 filing – taking more than a few
moments.
At this point, the declaration filed by ICE becomes dubious. The ICE agent
swears that “[b]ased on that investigation, Acting Supervisory Detention and
Deportation Officer John T. Keane executed a Form I-200, Warrant for Arrest of Alien.”
Id. at 2. Yet the documents submitted do not fully support this. The arrest warrant is
unsigned and dated December 5, 2025 – the date of Clarke’s biometrics appointment
and ensuing arrest – and bears no time notation. DE 9-1 at 9. That warrant offers check
boxes to indicate the basis of probable cause; the only box marked states the warrant
emanated from “biometric confirmation of the subject’s identity and a records check of
federal databases.” Id. Thus, the warrant was issued after the biometric appointment.
Crucially, in issuing the warrant, the officer did not indicate that removal proceedings
had been commenced, even though there are two boxes to so indicate. Id. At the
Court’s direction, ICE also supplied a Notice to Appear (NTA) – the charging document
that commenced removal proceedings. DE 9-1 at 13-15. The NTA is also dated
December 5, 2025, again without a timestamp. See id. There remains a serious question
as to whether the NTA preceded Clarke’s arrest; if not, then ICE improperly arrested
him.6 ICE’s declaration offers no insight into this question.
6 “The NTA begins the removal process, and at that time or after its issuance, the
Government can then effectuate his arrest, and, if necessary, detention, until
removal proceedings are completed.” Gopie v. Lyons, No. 25-CV-05229-SJB, 2025 WL
3167130, at *1 (E.D.N.Y. Nov. 13, 2025).
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Consistent with the Biometric Notice, Clarke appeared at the USCIS office in
Hauppauge, where ICE employees collected his fingerprints. According to ICE, “at
12:15 p.m., the Petitioner was encountered by ICE while in a vehicle in Hauppauge
New York. 7 He was pursued and pulled over in Central Islip, New York.” Id. at 2.
Then, ICE reports “he was transported to the Central Islip hold room where he was
booked at 11:28 p.m.” 8 Id. at 3. He remained there, the agent avers, until 11 a.m. on
December 6, at which point he was transported to NCCC. Id.
Unfortunately, that was not Clarke’s last encounter with the Central Islip hold
room. On December 9, he was transported back to the hold room, where he was
booked in at 3:53 p.m. and remained at the time of filing the declaration on December
10. Id.
At the December 11 hearing, in response to inquiries from the Court, Clarke
described the conditions of confinement in the Central Islip hold room, which the
Government has not meaningfully challenged. In a brief colloquy, Clarke indicated that
ICE detained him for the second time at the Central Islip hold room until transferring
him to Newark at 10:45 p.m. on December 10. Tr. 33. Thus, his second stay exceeded 36
hours. He described being held in a hold room with eight other men and identified four
such rooms in the Central Islip Federal Courthouse Building. Id. at 34. The detention
7 	As this “encounter” occurred less than two miles away from the USCIS office and 75
minutes after the scheduled start of his biometrics appointment, it could not have
been merely fortuitous.
8 	Given that Clarke’s reported “booking” time at the Central Islip hold room was
nearly 12 hours after his arrest in Central Islip, the accuracy of these booking times
may be suspect.
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rooms had no shower facilities and no beds, so detainees “had to lie straight on the
ground.” Id. They were provided two meals per day. Id. ICE did not provide changes
of clothing or toothbrushes. Id. at 34-35. The lights remained on “[a]ll night, all day,”
and the nights were “cold.” Id. at 35; cf. Tenezaca Pucha v. Genalo, 25-cv-6905 (SJB), DE
11-1 (female detainee reporting Central Islip hold rooms “were freezing cold. Only cold
air would blow through the vents.”). One or two officers supervised the detainees. Tr.
at 35.
The next day, further details concerning the detention conditions emerged in
another petition hearing before my colleague Judge Choudhury. See Hernandez Lazo v.
Noem, et al., 25-CV-6639 (NJC). Like Clarke, Hernandez Lazo was held in the Central
Islip hold room twice, once for about 9 hours on December 2, 2025, the second time for
more than 13 hours overnight between December 3 and 4. At the hearing, Hernandez
Lazo described the room in which he and five other detainees were held as being six
feet by six feet. Tr. of Proceedings dated December 12 at 7-8. An open toilet was in the
center of the room, such that when the detainees tried to sleep, they had to lie around
the toilet. Id. at 10-11. The room reeked of urine. Id. at 11. Hernandez Lazo reported
that the detainees were provided mats on which to lie down. Tr. 9.9
At the time of the hearing in this case, which was early afternoon on December
11, Clarke had been held at the Newark ICE detention facility for about 15 hours.
9 	Ironically, this small accommodation – providing yoga mats to hold room detainees
upon which to sleep – is a violation of ICE’s National Detention Standards (see infra).
The reason is obvious: hold rooms are neither intended nor designed for overnight
detention.
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Notably, he could not describe the facilities there because “I’ve been here from 10:45 last
night and I’m not even checked in as yet. I went through the process, just finishing. So
I haven’t seen anywhere or gone anywhere.” Tr. 38.
At the hearing, the Court directed Clarke’s immediate release on bail, arranging
for his wife to proceed directly to Newark to pick him up. Tr. 50. The Court specifically
held as follows:
I’m going to order him [ ] released immediately.
I want to get him out of there as soon as we can.
I’m releasing the petitioner pending resolution of the petition.
If you need something else that says, from me, he needs to be released
from Newark now, I will sign something that says he will be released
from Newark now while she’s driving there.
If there’s more things you need signed, I will sign anything necessary to
effect the Court’s decision.
Tr. 50-58. The Court then executed a Release Order providing for Petitioner’s
immediate release, electronically providing it to Government counsel at 2:10 p.m.
Notwithstanding this Court’s unequivocal and repeated dictate, ICE held the
Petitioner another night, finally releasing him on December 12. 	DE 11-1, ¶ 9.
After the hearing, the Court entered an order seeking additional information
from ICE, which stated, in relevant part, as follows:
In furtherance of the Court's review of this matter, and based on issues
raised by the filings made and the proceedings, Respondents are hereby
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ORDERED to file a written response regarding Petitioner's stay in the
facility referred to as the "Central Islip Hold Room" (CIHR):
1. List the dates and times - including arrival and exit times -- at which
the Petitioner was detained at the CIHR. With respect to Petitioner's
second detention there, beginning on December 9 as per the
Government's declaration, provide the reason(s) for the removal of the
Petitioner from the Nassau County Correctional Center and
readmission to the CIHR, as well as the reason(s) underlying his
removal from the CIHR and transfer to ICE's Newark facility shortly
before this Court's hearing. [ ]
. . . .
3. Provide a description (including dimensions and capacity) and
photographs of the hold room where Petitioner was detained . . .
Electronic Order dated December 11, 2025. 	In response, the Government filed a
declaration from Supervisory Detention Officer John C. Diaz, based entirely on ICE
records and conversations with other officers. DE 11-1 ¶ 1.
In addition to being rank hearsay, the information presented in the Diaz
Declaration proves evasive and demonstrably false. For example, Diaz swears that
Clarke “was booked out of NCCC at 3:45 p.m., and into CIHR on the same day at 3:53
p.m.” Id. ¶ 5. Given that the two facilities are more than twenty miles apart, requiring a
drive of 35 minutes or more, it is physically impossible that ICE officers moved Clarke
from one facility to another in eight minutes. Even more preposterous is Diaz’s sworn
statement that Clarke was “booked out [of the Central Islip hold room] on December 10,
2025, at 8:30 p.m.” and then “transported to Delaney Hall Detention Facility (“DHDF”)
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[in Newark. N.J.] where he was booked in at 9 p.m.” Id. ¶¶ 7-8. Since that journey of
about 60 miles consumes, depending on traffic, more than 90 minutes to as much as
three and a half hours, it is again objectively impossible that the transport was
completed in 30 minutes.
These misstatements of fact serve to undermine the information presented and
the reliability of the records maintained by ICE. Moreover, the declaration contains
material misstatements. Clarke’s stay at the NCCC provides a powerful example. Diaz
presents a series of booking times and concludes under oath that Clarke spent a total of
under 65 hours at the NCCC. Id. ¶¶ 4-6 (stating that Clarke “spent two days, sixteen
hours and forty-five minutes at NCCC.”). This is important, Diaz emphasizes, “because
NCCC does not house DHS detainees for more than seventy-two-hour periods.”10 Id. ¶
6. However, examination of the NCCC booking times presented by Diaz in his
declaration – from December 6 at 11 a.m. to December 9 at 3:45 p.m. – reveals that
Clarke spent about 77 hours at NCCC.11
While there are other misstatements in the Diaz Declaration, of greater concern is
ICE’s failure or refusal to provide information ordered by the Court. First, though ICE
provided its approximate measurements of the Central Islip hold rooms (four rooms
10 	That there is a “72 hour rule” with respect to housing at NCCC – the same time limit
ICE now applies to detention in holding cells -- raises potential questions as to the
nature of the facilities being utilized there.
11 In recent days, ICE and Nassau County have come under public scrutiny for
systematically violating its 72-hour rule provided in their agreement. 	See, e.g.,
“Immigrants Held Longer Than Allowed,” Newsday, December 12, 2025; “Nassau
County breaks its own rules by keeping ICE detainees too long, activists claim,” New
York Post, December 12, 2025.
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measuring, according to Diaz, about 10’ x 7’ or 8’), nowhere in his declaration does he
provide the capacity of those cells, a critical question here. Id. ¶ 26. While even that
could be seen as a convenient omission, ICE has flatly refused to provide the requested
photographs of the facilities. Id. ¶ 30 (“DHS is not prepared at this time to provide
photographs of CIHR.”). Though legally immaterial – DHS was ordered to provide
such photographs – part of the expressed rationale proves revelatory. Diaz avers that:
CIHR is populated 24/7 by detainees, and taking photographs while
detainees were present would create privacy concerns for those detainees.
[ ] Moving detainees out of CIHR for the purpose of taking photographs is
also challenging, because those detainees would have to all be transported
to a different facility.
Id. ¶¶ 29-30. If ICE is incapable of clearing a cell for the split second it takes to snap a
photograph, it raises – or perhaps answers – other questions, such as ICE’s ability to
clean, inspect and maintain the Central Islip hold rooms.
Finally, the Diaz Declaration revealed, for the first time, that ICE failed to comply
with this Court’s verbal, written and electronic orders for Clarke’s immediate release,
holding him for yet another overnight stay in ICE detention. Id. ¶ 9. No excuse or
explanation has been offered.
PROCEDURAL HISTORY
This matter was commenced upon the filing of a petition for a writ of habeas
corpus on December 8, 2025. After review, the Court entered a show cause order
setting a briefing schedule, directing the parties to appear before the Court for a hearing
three days later on December 11, providing that “Petitioner shall be produced in Court
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at that time” and making provisions to protect “Petitioner's interests in participating in
further proceedings before this Court.” Electronic Order dated December 8, 2025. The
next day, the Court entered an order directing submissions and inquiring as to whether
the respondents “have any cause to oppose petitioner's release on bail pending
resolution of the petition.” Electronic Order dated December 9, 2025 (citing Mapp v.
Reno, 241 F.3d 221, 223 (2d Cir. 2001) (“[F]ederal courts have the same inherent
authority to admit habeas petitioners to bail in the immigration context as they do in
criminal habeas cases.”)).
The parties submitted additional materials, and the Court entered an order
seeking additional documentation on December 9, 2025. DE 7. On December 10, ICE
filed a declaration. DE 9. On December 11, 2025, counsel for both parties and the
Petitioner’s wife and cousin appeared, but the Government failed to produce the
Petitioner as directed. While both the Court and Government counsel were under the
impression that Clarke remained in the Central Islip hold room, it was then revealed
that he had been transferred, hours earlier, to Newark. After some time, a phone line
was secured such that Clarke could participate in part of the proceeding virtually.
At the end of the proceeding, the Court ordered Clarke released immediately on
bail.
DISCUSSION
Consideration of Bail in an Immigration Habeas Case
In Mapp v. Reno, the Second Circuit, following an exhaustive survey of the
caselaw, concluded that “federal courts have the same inherent authority to admit
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habeas petitioners to bail in the immigration context as they do in criminal habeas
cases.” 241 F.3d at 223. At the same time, the Circuit acknowledged that “this power is
a limited one, to be exercised in special cases only.” Id. at 226. To make this
determination, “a court considering a habeas petitioner's fitness for bail must inquire
into whether the habeas petition raise[s] substantial claims and [whether] extraordinary
circumstances exist[ ] that make the grant of bail necessary to make the habeas remedy
effective.” Id. at 230 (quoting Iuteri v. Nardoza, 662 F.2d 159, 161 (2d Cir. 1981)).
The Nature of Petitioner’s Claims
Petitioner’s claims are focused on whether ICE afforded Clarke due process in
connection with his detention without bail. See DE 1. In evaluating the Due Process
Clause implications of these circumstances, the Court must first define the nature and
magnitude of the deprivation involved. “It has been said so often by this Court and
others as not to require citation of authority that due process is flexible and calls for
such procedural protections as the particular situation demands.” Morrissey v. Brewer,
408 U.S. 471, 481 (1972) (holding that petitioners in habeas proceedings were entitled to
an informal hearing prior to the revocation of parole). “Whether any procedural
protections are due depends on the extent to which an individual will be condemned to
suffer grievous loss.” Id. (internal quotation omitted).
In Mathews v. Eldridge, 424 U.S. 319 (1976), the Supreme Court set forth the
factors to be considered in determining the procedures that are due in connection with a
deprivation:
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(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 probable 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.”
Id. at 335. The Second Circuit has instructed that “Mathews is the test for both when a
hearing is required (i.e., pre- or post-deprivation) and what kind of procedure is due a
person deprived of liberty or property.” Brody v. Vill. of Port Chester, 434 F.3d 121, 135
(2d Cir. 2005).
Certainly, deprivation of liberty is a most serious matter. As the Second Circuit
noted in an immigration detention case:
Here, the private interest affected by the official action is the most
significant liberty interest there is—the interest in being free from
imprisonment. Hamdi v. Rumsfeld, 542 U.S. 507, 529, 124 S.Ct. 2633, 159
L.Ed.2d 578 (2004). Case after case instructs us that in this country liberty
is the norm and detention “is the carefully limited exception.” United
States v. Salerno, 481 U.S. 739, 755, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987).
“We have always been careful not to minimize the importance and
fundamental nature of the individual's right to liberty.” Foucha v.
Louisiana, 504 U.S. 71, 80, 112 S.Ct. 1780, 118 L.Ed.2d 437 (1992); see also
Hamdi, 542 U.S. at 529–30, 124 S.Ct. 2633. In the same vein, “[i]t is clear
that commitment for any purpose constitutes a significant deprivation of
liberty that requires due process protection.” Jones v. United States, 463
U.S. 354, 361, 103 S.Ct. 3043, 77 L.Ed.2d 694 (1983).
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Velasco Lopez v. Decker, 978 F.3d 842, 851 (2d Cir. 2020). As this case concerns
Petitioner’s detention, implicating “the most significant liberty interest there is,” the
Due Process interests are substantial. Id.
Yet this case implicates something more. There is evidence that the conditions of
the detention are substandard, abhorrent and likely unlawful. Thus, the nature of these
conditions bears on the severity of the depravation and on the procedural requisites.
The Conditions of Confinement
The evidence presented to this Court, which has been largely unrebutted,
demonstrates that ICE has been deploying its “holding rooms” in a manner that shocks
the conscience. Based solely on the preliminary showing here, which remains
unchallenged by the Government, it appears that the conditions maintained at the
Central Islip hold room, given the recklessly expanded use of these facilities by ICE,
may well violate constitutional requisites.
“[W]hen the State takes a person into its custody and holds him there against his
will, the Constitution imposes upon it a corresponding duty to assume some
responsibility for his safety and general well-being,” which includes “provid[ing] for
his basic human needs—e.g., food, clothing, shelter, medical care, and reasonable
safety.” DeShaney v. Winnebago Cnty. Dept. of Soc. Servs., 489 U.S. 189, 199-200 (1989).
Depriving detainees of sleep, toiletries and hygiene materials, and medical care can
amount to constitutional violations. See Walker v. Schult, 717 F.3d 119, 126 (2d Cir. 2013)
(“[S]leep is critical to human existence, and conditions that prevent sleep have been
held to violate the [Constitution].”); Id. at 127 (“[T]he failure to provide prisoners with
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toiletries and other hygienic materials may rise to the level of a constitutional
violation.”); Atkins v. Cnty. of Orange, 372 F. Supp. 2d 377, 406 (S.D.N.Y. 2005) (“The
failure to regularly provide prisoners with … toilet articles including soap, razors,
combs, toothpaste, toilet paper, access to a mirror and sanitary napkins for female
prisoners constitutes a denial of personal hygiene and sanitary living conditions.”);
Jones v. Neven, 399 Fed. Appx. 203 (9th Cir. 2010) (subjecting inmates to round-the-clock
illumination would be a clearly established constitutional violation).
And yet, one need not reach to constitutional doctrine to condemn the actions of
ICE documented here. The conditions described by detainees, and largely conceded by
government officials, violates standards set by USCIS for the humane treatment of those
in its custody. In 2025, USCIS promulgated a set of National Detention Standards12
(“NDS”) which provides that:
ICE has important obligations under the U.S. Constitution and other
federal and state law when it keeps an individual in custody. ICE
detention standards ensure that detainees are treated humanely; protected
from harm; provided appropriate medical and mental health care; and
receive the rights and protections to which they are entitled.
NDS at 2. Those standards define a “Hold Room” as a “secure area used for temporary
confinement of detainees before in-processing, institutional appointments (court,
medical), release, transfer to another facility, or deportation-related transportation.” Id.
at 225.
12 	https://www.ice.gov/doclib/detention-standards/2025/nds2025.pdf.
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The NDS provides that “[a] detainee may not be held in a hold room for more
than 12 hours.” Id. at 37. That provision makes the balance of the standards relating to
“hold rooms” sensible, such as the requisite that “Bunks, cots, beds, and other sleeping
apparatus are not permitted inside hold rooms.” Id. However, on June 24, 2025, ICE
issued a policy memo by which it “waived” the 12-hour rule applicable to temporary
detention, extending the period of time in which detainees may routinely be held to 72
hours (“the Waiver Memo”).13 “As a result of increased enforcement efforts,” the
memorandum explained, “ICE’s Enforcement and Removal Operations’ (ERO’s)
“average daily population has significantly increased to over 54,000.” Waiver Memo at
2. “This increase has put additional strain on finding and coordinating transfers of
aliens to available beds within the required timeline.” Id. Notwithstanding this
constitutionally and legally suspect policy change, the Waiver Memo continues to direct
that “All other hold room and hold facilities requirements continue to apply to ensure
the safety, security and humane treatment of those in custody in hold rooms and hold
facilities.” Id.
And that is where it falls apart. ICE has created conditions in the Central Islip
hold room that violate numerous minimum standards set by ICE to ensure the safe and
humane treatment of detainees. For example, the NDS provides that:
13 	While considered an internal memo, copies of the memo can be seen on various
news websites. See, e.g., https://iptp-
production.s3.amazonaws.com/media/documents/2025.06.24_ICE_-
_Nationwide_Hold_Room_Waiver.pdf.
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Single occupant hold rooms shall contain a minimum of 37 square feet
(seven unencumbered square feet for the detainee, five square feet for a
combination lavatory/toilet fixture, and 25 square feet for wheelchair
turnaround). Multiple-occupant hold rooms shall provide an additional
seven square feet of unencumbered space for each additional detainee.
NDS at 37. Compare that minimum standard to the facts elicited in this case: up to nine
detainees crammed into a space for multiple days and nights, which, according to the
USCIS NDS, is fit for a single detainee held for hours.14 The evidence reveals that ICE is
similarly ignoring its requirements concerning the provision of seating, cleaning, safety
inspection, bedding, meals, temperature and the requirement that “[h]old rooms with
toilets shall allow for an appropriate amount of privacy.” NDS at 37-39. These
revelations of abysmal, unlawful treatment come at the end of a year in which ICE
reported the death of 25 detainees held in its custody.15
It is against this horrific backdrop that the Court must examine the adequacy of
the procedural safeguards afforded petitioner to evaluate the merits of the petition.
Adequacy of the Procedural Due Process Afforded to Petitioner
As the Court has already found, this case, in many important respects, “bears
similarity to several recent decisions in which district judges in this Court and the
Southern District of New York have grappled with arrests by DHS which ran afoul of
14 	Plainly, packing up to nine times the number of detainees than is warranted
implicates concerns beyond regulatory violations. Cano v. City of New York, 44 F.
Supp. 3d 324, 333-34 (E.D.N.Y. 2014) (discussing prison overcrowding as potentially
unconstitutional especially when combined with aggravating adverse conditions).
15 	https://min.house.gov/sites/evo-subsites/min.house.gov/files/evo-media-
document/11.21.25-dhs-detainee-deaths-oversight-letter.pdf.
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Due Process protections, statutes and regulations.” DE 7 at 2-3 (citing Gopie v. Lyons,
No. 25-CV-05229-SJB, 2025 WL 3167130, at *1 (E.D.N.Y. Nov. 13, 2025) (issuing writ for
legal resident improvidently arrested and detained); Huang v. Almodovar et al., No. 25
CIV. 9346 (DEH), 2025 WL 3295912, at *4 (S.D.N.Y. Nov. 26, 2025) (ordering release of
Petitioner, who entered country without legal status, and enjoined future detention
under certain circumstances)). This case presents additional considerations arising from
the revelation of ICE’s horrendous detention practices.
Judge Bulsara’s decision in Gopie offers a precise, detailed review of the
applicable provisions governing arrests by immigration authorities, which is
incorporated herein by reference. Gopie raises infirmities in ICE’s detention procedures,
several of which are applicable here, including the following:
Section 1226(a) provides that the Attorney General—or its designated
officers—may “detain” or “release” a noncitizen, pending a decision on
whether he is to be removed from the United States. 8 U.S.C. § 1226(a).
This language undoubtedly vests broad authority to arrest and detain ...
but due process must account for the wide discretion ... to arrest any
person in the United States suspected of being removable. This is a
discretionary, not mandatory, action to detain a non-citizen…
But before the Government may exercise such discretion to detain a
person, Section 1226(a) and 8 C.F.R. 1236.1(c)(8) require ICE officials to
make an individualized custody determination. In numerous cases,
judges have interpreted the statute this way: before or contemporaneous
with detaining a noncitizen, there must be a custody determination. ICE
must allow the noncitizen to demonstrate to the satisfaction of the officer
that [ ] release would not pose a danger to property or persons, and that
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the [noncitizen] is likely to appear for any future proceeding. And [a]n
individual detained pursuant to Section 1226(a) who identifies some
defect in the process governing her detention can raise that defect in a
habeas action seeking release.
Gopie, 2025 WL 3167130, at *2 (cleaned up).
In Gopie, the Government failed to provide the Court with the custody
determination notice. Here, by contrast, a Notice of Custody Determination was
provided. DE 9-1 at 11. And yet the Notice, which is unsigned, provides only that the
officer “determined that, pending a final administrative determination in your case, you
will be: Detained by [DHS].” Id. As this is provided via a checkbox, the form “makes
no mention of whether the detention determination was made as a matter of discretion,
or part of a mandatory policy, or what was considered in reaching the result.” Gopie,
2025 WL 3167130, at *3. Though offered the opportunity to supplement these materials
with additional declarations and/or testimony, the Government declined to do so. The
Waiver Memo provides grounds to question whether officers are exercising discretion
in connection with detention determinations, as it provides that “ERO field offices no
longer have the option to discretionarily release aliens.” Waiver Memo at 2.
At this preliminary stage of the proceedings, the Government has failed to
demonstrate that the procedures afforded Clarke in connection with his detention were
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consistent with applicable law and regulations. Thus, the Petition raises substantial
claims.16
Extraordinary Circumstances
“[A] habeas petitioner should be granted bail only in unusual cases, or when
extraordinary or exceptional circumstances exist which make the grant of bail necessary
to make the habeas remedy effective.” Mapp, 241 F.3d at 224 (quoting Ostrer v. United
States, 584 F.2d 594, 596 n.1 (2d Cir. 1978)).
In this case, the existence of extraordinary or exceptional circumstances is
beyond doubt. After nearly 35 years of experience with federal law enforcement in this
judicial district, encompassing service as a prosecutor and a judge, I have never
encountered anything like this. ICE’s seeming disregard of procedural requisites,
combined with the chillingly brutal conditions of confinement to which Petitioner has
been, and presumably would continue to be subjected, cries out for immediate remedy.
The Notice to Appear sets a putative removal hearing date of December 30, 2025; thus,
Petitioner could be subjected to removal prior to resolution of the Petition, effectively
mooting any relief. These extraordinary circumstances require granting of bail to make
the habeas remedy effective.
16 	Respondents’ defense to these contentions largely turns on the availability of
additional administrative remedies, pointing to an upcoming bond hearing before
an immigration judge, an argument that was soundly rejected in Gopie. 2025 WL
3167130, at *3 (“a bond hearing before an immigration judge is a ‘re-determination’
of custody—it assumes that a valid custody determination was made in the first
instance.”).
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Finally, Petitioner proffered significant evidence tending to demonstrate that he
presents neither a flight risk nor a danger to the community, and the Government
presented virtually nothing to counter this demonstration. Out of an abundance of
caution, the Court ordered that Petitioner’s wife execute a $10,000 appearance bond.
Release was directed upon its execution.
I find that, under these facts and circumstances, the release of Petitioner on bail
pending the resolution of these proceedings was required by applicable law and human
decency.
Considering the issues identified in this opinion, the United States Attorney for
this judicial district is hereby ORDERED to submit a letter on or before December 30,
2025, identifying the steps that will be taken to address these matters and ensure
compliance with the law going forward.
ICE’s Failure and Refusal to Comply with Court Directives
ICE’s failure and, in at least one instance, flat out refusal, to comply with the
Court’s directives along with its provision of demonstrably false evidence, requires
some comment. While this matter was necessarily conducted in haste, and the Court
believes that the assigned AUSA struggled to handle these matters in a reasonable
fashion, ICE’s transgressions which include (1) failure to produce the Petitioner for the
hearing, (2) failure to provide the holding capacity of the Central Islip hold rooms, (3)
refusing to provide photographs of the Central Islip hold rooms and (4) ignoring this
Court’s order providing for Clarke’s immediate release, cannot be overlooked.
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Of these failings, perhaps the most indefensible is the agency’s refusal to provide
photographs consistent with this Court’s order. A party who believes that a court order
is unlawful – or in this case, unduly burdensome – does not have the right to resort to
self-help. That party has legal alternatives – like a motion for reconsideration (which
certainly would have been entertained here) or an interlocutory appeal – but cannot just
simply refuse to comply. “[I]n the fair administration of justice no man can be judge in
his own case, however exalted his station [or] righteous his motives. [R]espect for
judicial process is a small price to pay for the civilizing hand of law, which alone can
give abiding meaning to constitutional freedom.” Walker v. City of Birmingham, 388 U.S.
307, 320–21, 87 S. Ct. 1824, 1832 (1967); cf. United States v. Cutler, 840 F. Supp. 959, 966
(E.D.N.Y. 1994), aff'd, 58 F.3d 825 (2d Cir. 1995) (“It is for the court of first instance to
determine the question of the validity of the law, and until its decision is reversed for
error by orderly review, either by itself or by a higher court, its orders based on its
decision are to be respected, and disobedience of them is contempt of its lawful
authority, to be punished.”). As the Supreme Court held elsewhere:
We begin with the basic proposition that all orders and judgments of
courts must be complied with promptly. If a person to whom a court
directs an order believes that order is incorrect the remedy is to appeal,
but, absent a stay, he must comply promptly with the order pending
appeal. Persons who make private determinations of the law and refuse to
obey an order generally risk criminal contempt even if the order is
ultimately ruled incorrect.
Maness v. Meyers, 419 U.S. 449, 458 (1975).
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Therefore, it is further ORDERED that as part of the above-described December
30 submission, counsel for respondents shall SHOW CAUSE why the Court should not
consider entering an order of contempt or some other remedy in connection with ICE’s
failures to follow its orders in this case.
Response by counsel for Petitioner (as well as any amicus submissions) shall be
filed on or before January 12, 2026, after the filing of the above-described submissions.
Reply submissions, if any, shall be filed on or before January 20, 2026.
Dated: December 18, 2025
Central Islip, New York
SO ORDERED.
/s/ 	Gary R. Brown
GARY R. BROWN
United States District Judge
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