Case Name in Immigration Case - Unavailable

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
PABLO EDUARDO CHACON LABARCA,
Petitioner,
V.
JAMES BAUSCH, in his official capacity
as Acting Deputy Field Office Director,
Buffalo field Office, U.S. Immigration &
Customs Enforcement, et al.,
Respondents.
INTRODUCTION
1:26-CV-01266-MA V
DECISION AND ORDER
Petitioner, a citizen of Venezuela, filed a petition for a writ of habeas corpus
under 28 U.S.C. § 2241 on June 18, 2026, seeking immediate release from
Respondents' custody by which he has been detained since May 14, 2026. ECF No. 1
at 171; ECF No. 5 at 9-10. Petitioner's May 14 arrest occurred more than four years
after his prior parole pursuant to 8 U.S.C. § 1182(d) had automatically terminated.
ECF No. 5 at 5. He argues immediate release is warranted because (1) 8 U.S.C.
§ 1226(a) applies to his detention, which requires a warrant to arrest, and no warrant
was obtained; (2) Respondents' detention of Petitioner without any pre-deprivation
process violated his due process rights; and (3) Respondents unlawfully terminated
his parole by failing to provide written notice. ECF No. 1 at 13-17. The petition does
not seek a bond hearing in the alternative, and in fact Petitioner was provided a bond
1
Citations to the record reference the CM/ECF pagination from the top of each page.
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hearing in immigration court upon his request on June 10, 2026-a fact which neither
party discusses. Id. at 17-18; ECF No. 5 at 16-17.
For the following reasons, the petition is GRANTED, and Respondents shall
release Petitioner from custody within 24 hours of this Decision and Order.
BACKGROUND
Petitioner entered the United States, and was apprehended by Border Patrol
officials, on or about March 31, 2022. ECF No. 5 at 2-3. The same day, Petitioner was
temporarily paroled into the country pursuant to 8 U.S.C. § 1182(d), with his term of
parole expiring April 15, 2022. Id. at 4-5. More than four years later, on May 14,
2026, Respondents re-arrested Petitioner. Id. at 9. No arrest warrant was used, and
there is no record of one having been generated, before or after the arrest. A Notice
to Appear ("NTA'') was generated and served on Petitioner on May 14. Id. at 12-14.
The "Acting/Patrol Agent in Charge" did not identify on the NTA that Petitioner was
an "arriving alien," but instead that he was "an alien present in the United States
who has not been admitted or paroled." Id. at 12. On or about June 10, 2026, less than
a month after his arrest, Petitioner received a bond hearing in immigration court
upon his request. Id. at 16-17; see ECF No. 7-1. The immigration judge denied bond,
stating that Petitioner "failed to meet his burden to establish that the high risk of
flight he presents can be addressed by a monetary bond and/or conditions for release."
ECF No. 5 at 16.
Approximately one week later, Petitioner filed the instant habeas petition.
ECF No. 1. The petition did not disclose that Petitioner had very recently received a
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bond hearing, nor did it make any argument as to whether or how the Court should
consider that fact in evaluating the merits of the petition. As noted, Petitioner argued
that he must be released from custody because Respondents arrested him without a
warrant in violation of the Immigration and Nationality Act ("INA"), his arrest
without any pre-deprivation process violated his due process rights, and Respondents
failed to provide written notice that his parole was terminated. Id. at 13-17.
Respondents' initial, abbreviated return to the Order to Show Cause did not
address any of Petitioner's arguments. ECF No. 4. It conceded that, given the Second
Circuit's decision in Barbosa Da Cunha v. Freden, 175 F.4th 61 (2d Cir. 2026),
2
Respondents "respectfully acknowledge that Barbosa Da Cunha controls and would
lead this Court to grant the petition" while maintaining that 8 U.S.C. § 1225(b)
applies to Petitioner's detention and "reserving all rights, including the right to
appeal." ECF No. 4 at 1, 2, 4. Respondents argued that the only appropriate remedy
would be to grant Petitioner a bond hearing with the burden of proof on Petitioner -
without acknowledging that Petitioner had received the same on June 10. Id. at 5-6.
The Court found that supplemental briefing was required because:
Petitioner did not seek a bond hearing as an alternate form of relief in
his petition, and his three claims for relief pertain exclusively to the
alleged unlawfulness of Respondents' actions in arresting and detaining
him at all. Further, although neither party mentions or discusses this
fact, records provided by Respondents show that Petitioner had a bond
hearing before an immigration judge on June 10, 2026, before he filed
the instant petition. The Court also notes that the records submitted by
2
In Barbosa Da Cunha, the Second Circuit affirmed that a petitioner who had been present in the
country for a period of years and was not actively seeking lawful entry through inspection by an
immigration officer was detained under 8 U.S.C. § 1226(a), not 8 U.S.C. § 1225(b)(2)(A). Barbosa Da
Cunha, 175 F.4th at 96. The petitioner at issue had not previously been paroled into the country under
8 U.S.C. § 1182(d). See id. at 70.
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Respondents do not include an arrest warrant (I-200) or a Notice of
Custody Determination (I-286) associated with Petitioner's current
detention.
ECF No. 6 (citations omitted). The Court limited the need for a supplemental return
by Respondents to Counts I and II of the petition only. Id. In dismissing Count III,
which alleged a violation of the Administrative Procedure Act for "failure to comply
with regulatory mandate and Accardi doctrine," by terminating Petitioner's parole
without written notice, ECF No. 1 at 16-17 (citing 8 C.F.R. § 212.5(e)(2)(i)), the Court
held:
The notice provision of § 212.5(e)(2)(i) does not apply to Petitioner's
circumstances by the plain language of the regulations. 8 C.F.R.
§ 212.5(e)(l) provides, "[p]arole shall be automatically terminated
without written notice (i) upon the departure from the United States of
the alien, or, (ii) if not departed, at the expiration of the time for which
parole was authorized, and in the latter case the alien shall be processed
in accordance with paragraph (e)(2) of this section except that no written
notice shall be required." (Emphases added.) Here, Petitioner's parole
was authorized until April 15, 2022, ECF No. 5 at 5, at which point it
"automatically terminated," and thus no additional written notice was
required, 8 C.F.R. § 212.5(e)(l).
ECFNo. 6.
Respondents filed a supplemental return on July 22, backtracking from its
prior "acknowledge[ment]" that Barbosa Da Cunha "controls," to argue that
Petitioner is detained pursuant to§ 1225(b) and thus no warrant was required for his
arrest and he has no due process rights to violate. ECF No. 7 at 2-8. Respondents did
not engage in the alternative with the application of § 1226(a) to Petitioner's arrest
and detention except to re-assert that the only appropriate remedy is to order a bond
hearing with the burden on the Petitioner. See id. Respondents again did not mention
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Petitioner's June 10 bond hearing or its potential impact on the instant petition. See
id. Respondents did argue, however, that the Court does not have jurisdiction to
consider Petitioner's warrantless-arrest claim because there is no private right of
action under the INA. See id. at 2-4.
LEGAL STANDARD
"A district court may grant a writ of habeas corpus [under 28 U.S.C. § 2241]
when a petitioner is 'in custody in violation of the Constitution or laws or treaties of
the United States."' Kapoor v. DeMarco, 132 F.4th 595, 606 (2d Cir.) (quoting 28
U.S.C. § 2241(c)(3)), cert. denied, 146 S. Ct. 325 (2025). In habeas proceedings under
§ 2241, "the petitioner ... bears the burden of proving that he is being held contrary
to law; and because the habeas proceeding is civil in nature, the petitioner must
satisfy his burden of proof by a preponderance of the evidence." Skaftouros v. United
States, 667 F.3d 144, 158 (2d Cir. 2011).
DISCUSSION
I. Section 1226(a) Applies to Petitioner
Petitioner was arrested and detained on May 14, 2026----over four years after
his § 1182( d) parole into the United States automatically terminated. For the reasons
set forth in the Court's Decision and Order in De La Cruz v. Rhoney, the Court finds
that Petitioner was and is subject to 8 U.S.C. § 1226(a). No. 25-CV-6699-MA V, 2026
WL 891658 (W.D.N.Y. April 1, 2026) (holding that a petitioner who had been present
in the country for a period of years following expiration of his § 1182(d) parole was
detained pursuant to 8 U.S.C. § 1226(a) and was therefore entitled to a bond hearing
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under existing federal regulations); see Ivonin v. Rhoney, No. 6:25-CV-06673-EAW,
2026 WL 199283, at *4 (W.D.N.Y. Jan. 26, 2026) ("[S]uggesting that [the petitioner]
is still on the threshold of entry into this country, based on his re-entry into the
United States through parole which expired over seven years ago, stretches the legal
fiction' beyond reason."); Cabrera Martinez v. Marich, 816 F. Supp. 3d 356, 365-67
(W.D.N.Y. 2025) (finding the "legal fiction" inapplicable to a noncitizen who had been
residing in the United States for seven months following expiration of parole at the
time detention); Campbell v. Almodovar, No. 1:25-cv-09509 (JLR), 2025 WL 3538351,
at *8 (S.D.N.Y. Dec. 10, 2025) (same as to a noncitizen who had been living in the
United States for years following expiration of parole); see also Barbosa Da Cunha,
175 F.4th at 96.
Accordingly, much of Respondents' supplemental return is inapposite.
II. Count I-Warrantless Arrest in Violation of the INA
A. Jurisdiction
28 U.S.C. § 2241(c)(3) authorizes federal courts to grant habeas relief to
prisoners or detainees who are "in custody in violation of the Constitution or laws or
treaties of the United States." 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. Da Cunha v. Freden, No. 25-CV-6532-MA V, 2025 WL 3280575, at *1
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(W.D.N.Y. Nov. 25, 2025), aff'd sub nom. Barbosa da Cunha v. Freden, 175 F.4th 61
(2d Cir. 2026) (quoting Jennings v. Rodriguez, 583 U.S. 281, 295 (2018)).
Respondents articulate a jurisdictional challenge with respect to Count I only,
in which Petitioner requests immediate release because his arrest without a warrant
violated the INA.
3
ECF No. 7 at 4-5. Respondents assert that, because the INA
creates neither a private cause of action nor a federally protected right, Count I must
be dismissed for lack of subject matter jurisdiction. Id. (citing Vazques v. Garland,
No. 1:21-CV-00477 EAW, 2022 WL 2467655, at *5 (W.D.N.Y. July 6, 2022); Velez
Funes v. Garland, No. 20-CV-883 (JLS), 2021 WL 2515659, at *9 (W.D.N.Y. June 18,
2021); Farag v. U.S. Citizenship & Immigr. Servs., 531 F. Supp. 2d 602, 606-07
(S.D.N.Y. 2008); Jaskiewicz v. U.S. Dep't of Homeland Sec., No. 06 Civ. 3770(DLC),
2006 WL 3431191, at *4 (S.D.N.Y. Nov. 29, 2006); Huli v. Way, 393 F. Supp. 2d 266,
270 (S.D.N.Y. 2005)).
The Court is not persuaded that it lacks jurisdiction over Count I of the petition
especially given the enormity of case law generated across the country within the last
year and a half, deciding, inter alia, • whether the government is holding civil
immigration detainees in custody in violation of the Immigration and Nationality Act.
See, e.g., Barbosa da Cunha, 175 F.4th at 70, 96 (holding § 1226(a), not § 1225(b),
applied to petitioner's detention where the petition argued "that his putative
3
Respondents' initial return states that they "re-raise any and all jurisdictional defenses to this
Petition, including that the [INA] strips this Court or jurisdiction over the claims raised, pursuant to
8 U.S.C. § 1252." ECF No. 4 at 3. However, Respondents had not previously raised any specific
jurisdictional defenses in this matter that this statement could attempt to "re-raise," and the Court
declines to analyze any and all hypothetical arguments that could potentially be raised under § 1252.
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detention under Section 1225(b)(2)(A) violated Section 1226, its associated
regulations, and the Fifth Amendment's Due Process Clause," and the Second Circuit
viewed the "sole question presented by [the] appeal" as "whether Section 1226(a) or
Section 1225(b) governs Petitioner's detention," to accordingly decide whether
petitioner was entitled to a bond hearing under the INA); see also Yuen Jin v.
Mukasey, 538 F.3d 143, 159 (2d Cir. 2008) (noting that neither treaty challenged in
the § 2241 petition was "self-executing" and therefore petitioner could only seek to
enforce the rights "contained in [the treaties'] implementing statutes and regulations
(i.e., the INA)." (emphasis added)). The parties here have teed up the same type of
inquiry recently considered and decided by the Second Circuit -whether § 1226(a) or
§ 1225(b) applies to Petitioner to determine whether he is lawfully in custody. See
ECF No. 1 at 6-7, 9-14; ECF No. 7 at 3-4 (arguing§ 1225(b) applies to Petitioner,
which does not require a warrant to arrest).
B. Merits
Petitioner seeks immediate release from custody because he was arrested
without a warrant as required by 8 U.S.C. § 1226(a), which states in relevant part:
"On a warrant issued by the Attorney General, an alien may be arrested and detained
pending a decision on whether the alien is to be removed from the United States.").
Petitioner is of course correct that § 1226(a) plainly requires the issuance of a warrant
to arrest. There is no dispute here that Respondents arrested Petitioner without a
warrant, and there is no arrest warrant, or a Notice of Custody Determination, in the
record at all.
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There are exceptions to the warrant requirement in § 1226(a), however. 8
U.S.C. § 1357(a)(2) "provides ICE with limited authority to conduct warrantless
arrests." Vansh Last Name Unknown v. Ball, et al., No. 26-CV-1249-LJV, 2026 WL
2096666, at *2 (W.D.N.Y. July 21, 2026) (quotation omitted). Under that provision of
the INA,
[a]ny officer or employee ... authorized under regulations prescribed by
the Attorney General ... ha[s the] power without warrant ... to arrest any
[noncitizen] in the United States, if he has reason to believe that the
[noncitizen] so arrested is in the United States in violation of any such
law or regulation and is likely to escape before a warrant can be obtained
for his arrest.
8 U.S.C. 1357(a)(2). 8 C.F.R. § 287.8(c)(2) echoes these two requirements for
conducting a warrantless arrest of a noncitizen under§ 1357(a)(2). It provides:
(i) An arrest shall be made only when the designated immigration officer
has reason to believe that the person to be arrested has committed an
offense against the United States or is [a noncitizen] illegally in the
United States.
(ii) A warrant of arrest shall be obtained except when the designated
immigration officer has reason to believe that the person is likely to
escape before a warrant can be obtained.
8 C.F.R. § 287.8(c)(2)(i)-(ii). "Therefore, based both on the statute and on the
regulations, to lawfully arrest a noncitizen who falls under section 1226(a) without a
warrant, the arresting official must have reason to believe that the noncitizen is (1)
present in the United States illegally and (2) likely to escape before a warrant can be
obtained." Vansh, 2026 WL 2096666, at *2 (citing 8 U.S.C. § 1226(a); 8 U.S.C.
§ 1357(a); 8 C.F.R. § 287.8(c)(2)).
Under§ 1357(a)(5), an immigration officer may also make a warrantless arrest:
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(A) for any offense against the United States, if the offense is committed
in the officer's or employee's presence, or
(B) for any felony cognizable under the laws of the United States, if the
officer or employee has reasonable grounds to believe that the person to
be arrested has committed or is committing such a felony,
if the officer or employee is performing duties relating to the
enforcement of the immigration laws at the time of the arrest and if
there is a likelihood of the person escaping before a warrant can be
obtained for his arrest.
8 U.S.C. § 1357(a)(5).
As noted, Respondents' supplemental return does not engage with the
application of§ 1226(a) to Petitioner's arrest and detention except to re-assert that
the only appropriate remedy is to order a bond hearing with the burden on the
Petitioner. See ECF No. 7 at 2-8. This is the case despite the Court's explicit
references in its Order directing Respondents to file a supplemental return to: its De
La Cruz decision, holding that § 1226(a) applied to a petitioner in virtually identical
factual circumstances to Petitioner here; the lack of an I-200 arrest warrant and an
I-286 Notice of Custody Determination in the record; and the fact that Petitioner
already received a bond hearing in immigration court. ECF No. 6. Section 1357(a)'s
warrant exceptions are not discussed by Respondents at all.
The petition clearly notifies Respondents that Petitioner seeks immediate
release on the grounds that§ 1226(a) applies to his arrest and detention because an
element of that statute-namely its warrant requirement-was not satisfied. See
ECF No. 9-10, 13-14. Cf. Barbosa da Cunha, 175 F.4th at 73-78 (considering and
ruling on whether petitioner satisfied 8 U.S.C. § 1225(b)(2)'s requirement that a
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noncitizen be "seeking admission"). The petition does not preemptively allege that no
exception to § 1226(a)'s warrant requirement applies, nor did it need to. The Court
finds that the invocation of§ 1357(a)'s warrant exceptions are akin to affirmative
defenses and, thus, that Respondents have the burden of raising and establishing
their applicability.
The Supreme Court, the Federal Rules of Civil Procedure, and the Rules
Governing Section 2254 Cases, all acknowledge the applicability of affirmative
defenses to civil habeas cases. See Fed. R. Civ. P. 8(c)(l) ("In responding to a pleading,
a party must affirmatively state any avoidance or affirmative defense." (emphasis
added)); Rule 5 of the Rules Governing Section 2254 Proceedings (discussing answers
to habeas petitions, including that "[t]he answer must address the allegations in the
petition. In addition, it must state whether any claim in the petition is barred by a
failure to exhaust state remedies, a procedural bar, non-retroactivity, or a statute of
limitations." (emphases added)); see also Rule l(b) of the Rules Governing Section
2254 Proceedings ("The district court may apply any or all of these rules to a habeas
corpus petition not covered by Rule l(a)."); Day v. McDonough, 547 U.S. 198, 199
(2006) (holding a district court may but is not required to sua sponte identify
untimeliness as an affirmative defenses to a petition for a writ of habeas corpus,
stating, "[t]his resolution aligns the statute of limitations with other affirmative
defenses to habeas petitions, notably exhaustion of state remedies, procedural
default, and nonretroactivity."). Affirmative defenses are descendants of the common
law plea of"confession and avoidance," which "permitted a defendant who was willing
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to admit that the plaintiffs declaration demonstrated a prima facie case to then go
on and allege additional new material." 5 Charles Alan Wright, Arthur R. Miller &
Mary Kay Kane, FEDERAL PRACTICE & PROCEDURE § 1270 (3d ed. 1998). In
other words, an affirmative defense introduces new facts or arguments that defeat
the request for relief even if the pleading party's core claims are true. See Saks v.
Franklin Covey Co., 316 F.3d 337, 349 (2d Cir. 2003).
Similar to the function of an affirmative defense, proof that satisfies an
exception to § 1226(a)'s warrant requirement; see 8 U.S.C. § 1357(a), would
essentially avoid or bypass Petitioner's initial allegations that he is entitled to
immediate release due to the lack of a warrant effectuating his arrest, and
Respondents will generally be in the best position to prove facts relevant to the
applicability of an exception. Compare Rea v. Ball, et al., No. 9:26-CV-01248 (AMN),
2026 WL 1959270, at *2 (N.D.N.Y. July 2, 2026) (''Respondents further contend that
even if Petitioner's detention is governed under Section 1226(a), an individual
custody determination was not necessary in this case because Respondents possessed
independent statutory authority under 8 U.S.C. § 1357(a)(2) and 8 C.F.R.
§ 287.8(c)(2)(i) to lawfully detain Petitioner without a warrant .... "), with Escalante
v. Venturella, et al., No. 26-CV-01657-PAB, 2026 WL 1745528, at *2 (D. Colo. June
17, 2026) ("Respondents have failed to provide any argument or set forth any evidence
indicating that petitioner's warrantless arrest was proper under§ 1357. Respondents
have failed to show that they had reason to believe that, at the time of petitioner's
arrest, petitioner was present in the United States in violation of the law and that he
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was likely to escape before a warrant could be obtained. There is no indication that
petitioner committed an offense in the presence of immigration officials and that
there was a likelihood of petitioner's escape before a warrant could be obtained.
Accordingly, the Court finds that respondents lacked statutory authority to arrest
petitioner." (citations omitted)); Cf Pena v. United States, No. 5:23-cv-3117, 2024 WL
510746, at *3 n.12 (E.D. Pa. Dec. 19, 2024) (discussing the government's burden to
prove certain exceptions to the Federal Tort Claims Act, likening the exceptions to
affirmative defenses).
Respondents have failed to provide any argument or set forth any evidence
indicating that Petitioner's warrantless arrest was proper under§ 1357(a). Without
a warrant to satisfy § 1226(a) or valid authority to conduct a warrantless arrest,
Respondents lacked statutory authority to arrest Petitioner. The Court grants Count
I of the petition to the extent that Respondents must release Petitioner from custody
within 24 hours of the Decision and Order. See Escalante, 2026 WL 17 45528, at *2
("Where respondents have failed to obtain a warrant for a noncitizen detained under
§ 1226(a) and lacked statutory authority for a warrantless arrest, courts have found
the appropriate remedy is to order the non-citizen's release." (collecting cases)).
III. Count II -Violation of Procedural Due Process
Given the Court's ruling as to Count I, the Count declines to reach Count II of
the petition.
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CONCLUSION
For the foregoing reasons, the Court finds that Petitioner is entitled to release
from custody. Respondents have proffered to the undersigned and other judges in this
district that, at least locally, the Second Circuit's decision in Barbosa da Cunha is
being applied to the arrest and detention of noncitizens and, in this case specifically,
Respondents initially conceded that Barbosa da Cunha was controlling. ECF No. 4.
Yet Petitioner has been in civil immigration detention since May 14, 2026, and there
is still no I-268 Notice of Custody Determination in the record, no I-200 arrest
warrant was ever issued, and, concerningly, Respondents later backtracked to
contend that the lack of such records is justified because Petitioner is subject to 8
U.S.C. § 1225(b) despite overwhelming case law to the contrary. ECF No. 7.
Not only is the record clear that no I-200 arrest warrant was ever issued as to
Petitioner, Respondents have failed to make any argument that an exception under
8 U.S.C. § 1357(a) applied to authorize Petitioner's warrantless arrest despite clear
notice in the petition and the Court's Order directing Respondents to file a
supplemental return and despite the opportunity to supplement their return. See
Day, 547 U.S. at 209-10 ("We stress that a district court is not required to
doublecheck the [government's] math."). Due to the clear absence of any warrant here
and Respondents' failure to meet their burden of raising and establishing an
exception to the warrant requirement of§ 1226(a), the Court finds that Respondents
did not have any statutory authority to arrest or detain Petitioner on May 14, and
thus that Petitioner must be released.
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Because Respondents did not have proper authority to arrest Petitioner,
Respondents do not have any attending authority at this stage to impose conditions
on Petitioner's release. Upon Petitioner's release, Respondents shall return to
Petitioner all of his seized personal property should any exist.
ORDER
IT IS HEREBY ORDERED that the petition for writ of habeas corpus, ECF
No. 1, is GRANTED to the extent that Respondents shall release Petitioner from
custody and return Petitioner's seized property to him; and it is further
ORDERED that Respondents RELEASE Petitioner from custody with 24
hours of this Decision and Order; and it is further
ORDERED that, upon Petitioner's release, Respondents shall return to
Petitioner all of his seized personal property should any exist; and it is further
ORDERED that Respondents shall file a letter by Monday, August 17, 2026,
confirming compliance with this Decision and Order.
Dated:
SO ORDERED.
~rf ,2026
Roc~NewYork
United States District Judge
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