Valladares v. Hyde et al

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
HECTOR VALLADARES,
Petitioner,
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Civil Action No. 1:25-cv-13271-IT
v. 	*
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PATRICIA HYDE, Field Office Director;
TODD LYONS, Acting Director, U.S.
Immigration and Customs Enforcement;
KRISTI NOEM, U.S. Secretary of Homeland
Security; PAMELA BONDI, U.S. Attorney
General; and DONALD J. TRUMP, U.S.
President,
Respondents.
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MEMORANDUM & ORDER
December 23, 2025
TALWANI, D.J.
Pending before the court is Petitioner Hector Valladares Amended Petition for Writ of
Habeas Corpus [Doc. No. 15] and Respondents’ Notice of Intent to Transfer to Effectuate
Removal Order [Doc. No. 19] requesting that the court vacate its Order Concerning Service of
Petition and Stay of Transfer or Removal [Doc. No. 3] restricting Petitioner’s transfer from
Massachusetts. For the reasons set forth below, the Amended Petition [Doc. No. 15] is
GRANTED, and Respondents’ request [Doc. No. 19] to vacate the court’s Order [Doc. No. 3] is
DENIED.
I. 	Background
Petitioner, a native and citizen of El Salvador, is currently detained by U.S. Immigration
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and Customs Enforcement (“ICE”) at the Plymouth County Correctional Facility in Plymouth,
Massachusetts. Am. Pet. ¶¶ 1, 8 [Doc. No. 15]; Decl. of Keith Chan ¶¶ 6, 11–12 [Doc. No. 18-1]
(“Chan Decl.”).
On or about November 2, 2005, Petitioner entered the United States without inspection
and was detained by the Immigration and Naturalization Service (“INS”). Am. Pet. ¶ 20 [Doc.
No. 15]; Chan Decl. ¶ 7 [Doc. No. 18-1]. That day, INS issued a Notice to Appear to Petitioner,
“charging him as inadmissible under 8 U.S.C. § 1182(a)(6)(A)(i).” Chan Decl. ¶ 8 [Doc. No. 18-
1]. INS also issued Petitioner a Notice of Custody Determination, under which Petitioner was
released on his own recognizance. Id.; see Am. Pet. ¶ 20 [Doc. No. 15].
On or about May 3, 2007, Petitioner did not appear for a hearing in his removal
proceedings at the Boston Immigration Court. Chan Decl. ¶ 9 [Doc. No. 18-1]; Am. Pet. ¶ 21
[Doc. No. 15]. Petitioner asserts that, because he is “illiterate in both English and Spanish[,]” he
“could not read the hearing notice that set his Individual Hearing for May 3, 2007[,]” and
therefore failed to attend the hearing. Am. Pet. ¶ 21 [Doc. No. 15]. “On or about May 4, 2007, an
immigration judge ordered Petitioner removed in absentia, subjecting Petitioner to a final order
of removal.” Chan Decl. ¶ 10 [Doc. No. 18-1]; see Am. Pet. ¶ 22 [Doc. No. 15].
Petitioner continued to reside in the United States “without incident.” Am. Pet. ¶ 23
[Doc. No. 15]. On or about November 4, 2025, ICE agents encountered Petitioner at his place of
employment in Allston, Massachusetts. Id. ¶ 24. After completing a “records check,” ICE
detained Petitioner upon discovery of his 2007 final removal order. Chan Decl. ¶ 11 [Doc. No.
18-1]; see Am. Pet. ¶ 25 [Doc. No. 15]. In his Amended Petition [Doc. No. 15], Petitioner
indicated that he “fears returning to his home country of El Salvador and is in the process of
preparing a motion to reopen his removal proceedings based on lack of notice.” Id. ¶ 26.
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On December 18, 2025, prior to Petitioner filing such a motion, Respondents filed a
notice stating their intent to transfer Petitioner from the District of Massachusetts on December
24, 2025, “to stage Petitioner prior to effectuating [his] final order of removal to occur on or after
January 4, 2026, with removal to El Salvador.” Notice of Intent to Transfer to Effectuate
Removal Order 1 [Doc. No. 19]. To facilitate the transfer and removal of Petitioner, Respondents
sought vacatur of this court’s November 5, 2025 Order Concerning Service of Petition and Stay
of Transfer or Removal [Doc. No. 3], on the grounds that Petitioner is subject to a final order of
removal, transfer is “necessary to effectuate Petitioner’s final order of removal[,]” and, by
statute, under 8 U.S.C. § 1252(g), this court lacks jurisdiction to “hear any cause or claim by or
on behalf of any alien arising from the decision or action by [ICE] to . . . execute final removal
orders against any alien[.]” Notice of Intent to Transfer to Effectuate Removal Order 1-2 [Doc.
No. 19].
In response to the court’s Order to Show Cause [Doc. No. 20] as to “why this court
should not vacate its Order [Doc. No. 3] as requested by Respondents,” Petitioner notified the
court that he filed a motion to reopen his 2007 removal order on December 22, 2025. Pet’r’s
Resp. to the Court’s Dec. 18, 2025 Order to Show Cause 1 [Doc. No. 21] (“Pet’r’s Resp.”);
Pet’r’s Resp. Ex. A, Resp’t’s Emergency Mot. to Reopen an In Absentia Order and Reopen
Removal Proceedings [Doc. No. 21-1] (“Emergency Mot. to Reopen”). He contends, inter alia,
that the filing of this motion to reopen triggers a mandatory stay of his removal under 8 U.S.C.
§ 1229a(b)(5)(C)(ii); that the court retains “clear habeas jurisdiction [over Petitioner’s detention]
under 28 U.S.C. § 2241” where “Petitioner is challenging the legality of his restraint, not merely
the mechanics of his removal”; and that Respondents’ intended transfer of Petitioner out of
Massachusetts “would cause immediate and irreparable harm” by severing Petitioner’s ties to his
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counsel, on whom he has “total reliance” in light of his illiteracy. Pet’r’s Resp. 1–4 [Doc. No.
21].
II. 	Discussion
The court first addresses the threshold issue of its subject matter jurisdiction over
Petitioner’s habeas petition. Respondents correctly assert that, under 8 U.S.C. § 1252, district
courts lack jurisdiction, including habeas jurisdiction, over final orders of removal. See 8 U.S.C.
§ 1252(a)(5) (“a petition for review filed with an appropriate court of appeals in accordance with
this section shall be the sole and exclusive means for judicial review of an order of removal”); id.
§ 1252(b)(9) (“Judicial review of all questions of law and fact, including interpretation and
application of constitutional and statutory provisions, arising from any action taken or
proceeding brought to remove an alien from the United States . . . shall be available only in
judicial review of a final order under this section.”); Ishak v. Gonzales, 422 F.3d 22, 29 (1st Cir.
2005) (plain language of 8 U.S.C. § 1252, as amended, “strips the district court of habeas
jurisdiction over final orders of removal”).
The court understands Petitioner’s Amended Petition [Doc. No. 15] as a challenge to the
fact of his detention itself, and not a challenge to the removal order. See id. ¶ 53 (“This petition
raises constitutional and statutory claims challenging the Petitioner’s detention. Upon reason and
belief, the Petitioner fears his transfer to a detention facility outside of Massachusetts, where his
remote location would prevent him from adequately litigating his removal and bond
proceeding. . . .” (emphasis added)). That Petitioner is not seeking relief from his removal order
via his Amended Petition [Doc. No. 15] is further evidenced by his initiation of administrative
proceedings to reopen that order and his removal proceedings through the immigration court
system. See Emergency Mot. to Reopen [Doc. No. 21-1]. Thus, as another session in this District
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has also concluded, where Petitioner “challenges only his ongoing detention[,]” “Section
1252(b)(9) does not strip this [c]ourt of jurisdiction to entertain his claims.” Cakan v. McDonald,
2025 WL 1432752, at *6 (D. Mass. May 19, 2025) (citing Aguilar v. U.S. Immigr. & Customs
Enf’t Div. of Dep’t of Homeland Sec., 510 F.3d 1, 11–12 (1st Cir. 2007)). See Dep’t of
Homeland Sec. v. Regents of the Univ. of California, 591 U.S. 1, 19 (2020) (8 U.S.C.
§ 1252(b)(9) “does not present a jurisdictional bar where those bringing suit are not asking for
review of an order of removal, the decision to seek removal, or the process by which
removability will be determined.” (citation modified)).
The jurisdictional issue thus resolved, the court turns to the parties’ dispute as to the
lawfulness of Petitioner’s detention. Petitioner contests Respondents’ characterization of his
detention as lawful under 8 U.S.C. § 1231(a), under which “the Attorney General shall detain”
noncitizens ordered removed. See Opp’n 7–8 [Doc. No. 18] (quoting 8 U.S.C. § 1231(a)(2)(A)).
If a noncitizen subject to a final order of removal is not removed from the United States within
the statutory ninety-day removal period, see 8 U.S.C. § 1231(a)(1)(A), ICE may either release
the noncitizen under supervision, see 8 U.S.C. § 1231(a)(3), or continue to detain certain
noncitizens under 8 U.S.C. § 1231(a)(6), including those who are inadmissible to the United
States under 8 U.S.C. § 1182. See Johnson v. Guzman Chavez, 594 U.S. 523, 528–29 (2021).
Respondents contend that “Petitioner falls within the scope of Section 1231(a)(6) because he is
inadmissible to the United States under Section 1182(a)(6)(A)(i)[.]” Opp’n 8 [Doc. No. 18].
Petitioner contends that his detention is a “re-detention,” rather than a continuation of
detention, and is therefore not authorized by 8 U.S.C. § 1231(a)(6):
Because the government released Petitioner on his own recognizance in 2005, by
arresting him in 2025, ICE did not continue his detention but rather initiated a new
detention (i.e., re-detained the Petitioner). ICE was not authorized to re-detain
Petitioner pursuant to 8 U.S.C. § 1231(a)(6). . . . Section 1231(a)(6) and its
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concomitant regulation, 8 C.F.R. § 241.4, only authorize the continuation of the
detention of noncitizen [sic] where the noncitizen had been in custody at the time
of the entry of his removal order or was detained during the removal period
pursuant to 8 U.S.C. § 1231(a)(2) and 8 C.F.R. § 241.3. Section 1231(a)(6) and 8
C.F.R. § 241.4 do not authorize the re-detention of a noncitizen, like Petitioner,
who was previously released from custody unless the government shows by clear
and convincing evidence that the noncitizen has become a danger to the community
or flight risk.
Am. Pet. ¶¶ 44–45, 48–49 [Doc. No. 15]. Petitioner argues that where ICE has not made the
requisite showing of his dangerousness or risk of flight by clear and convincing evidence, the
agency lacks the authority to detain him. Id. ¶ 50.
The court need not resolve that dispute where Petitioner has now filed a motion to reopen
his 2007 removal order based on his aforementioned claim of lack of notice, see Pet.’s Resp. 1–2
[Doc. No. 21]; Emergency Mot. to Reopen [Doc. No. 21-1], and his removal order is statutorily
stayed pending the disposition of the motion by an immigration judge. 8 U.S.C.
§ 1229a(b)(5)(C)(ii). The statutory stay and the possibility of further review at the Board of
Immigration Appeals (“BIA”) impact the authority under which Petitioner can be detained,
irrespective of whether his current detention should be characterized as a continuation of
detention or a re-detention.
Section 1231(a)’s ninety-day removal period, described supra, begins on the latest of the
following:
(i) 	The date the order of removal becomes administratively final.
(ii) 	If the removal order is judicially reviewed and if a court orders a stay of the
removal of the alien, the date of the court’s final order.
(iii) 	If the alien is detained or confined (except under an immigration process),
the date the alien is released from detention or confinement.
8 U.S.C. § 1231(a)(1)(B) (emphasis added). Here, where Petitioner’s 2007 removal order is
stayed and subject to a yet-undecided motion to reopen, the removal order is not
“administratively final” within the meaning of 8 U.S.C. § 1231(a)(1)(B)(i). See, e.g., Resheroop
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v. Garland, 577 F. Supp. 3d 180, 185 (W.D.N.Y. 2022) (petitioner’s removal order “not
administratively final within the meaning of 8 U.S.C. § 1231(a)(1)(B)(i)” while his appeal before
the BIA remained pending and “there [was] no indication in the record that the BIA dismissed
the appeal, the Petitioner waived appeal, that Petitioner [had] procedurally defaulted, or that the
BIA or Attorney General issued a subsequent decision ordering removal.”); Spaccarotella v.
Jenifer, 202 F. Supp. 2d 725, 727 (2002) (BIA’s “dismissal of Petitioner’s appeal of [his]
removal order . . . renders the order of removal final . . . and dictates that the INS is holding
Petitioner pursuant to § 1231(a)”).
Section 1231 is thus inapplicable to Petitioner while his removal order is stayed. Instead,
where Petitioner is not subject to an “administratively final” removal order, and where
Respondents have not alleged that Petitioner is otherwise subject to mandatory detention,
Petitioner’s detention is properly governed by 8 U.S.C. § 1226(a). See Brown v. Lanoie, 2014
WL 12586735, at *2–3 (D. Mass. Aug. 4, 2014) (interpreting both 8 U.S.C. § 1226(a) and 8
U.S.C. § 1231); see also Velasco Lopez v. Decker, 978 F.3d 842, 852 (2d Cir. 2020) (“Detention
under § 1226(a) . . . continues until all proceedings and appeals are concluded.”); D’Ambrosio v.
McDonald, 793 F.Supp.3d 271, 276 (D. Mass. 2025) (“[U]ntil the reviewing court issues its final
order, the noncitizen’s detention is subject to § 1226(a), not § 1231.”). The court expresses no
view on any matters pertaining to Petitioner’s motion to reopen his 2007 removal order.
Accordingly, Respondents’ request for the court to vacate the November 5, 2025 Order
Concerning Service of Petition and Stay of Transfer or Removal [Doc. No. 3], see Not. of Intent
to Transfer to Effectuate Removal Order [Doc. No. 19], is DENIED. Petitioner’s Amended
Petition [Doc. No. 15] is GRANTED as follows: No later than December 31, 2025, Petitioner
must be provided a bond hearing pursuant to 8 U.S.C. § 1226 or, if the immigration judge
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declines to conduct a bond hearing based on Matter of Yajure Hurtado, 29 I&N Dec. 216 (B.I.A.
2025), Respondents shall so advise the court by that date so that this court may conduct the bond
hearing. Any decision by the immigration judge to retain Petitioner in custody following a bond
hearing pursuant to 8 U.S.C. § 1226 shall set forth the reasons for the continued detention.
Respondents shall submit a status report on this matter no later than January 5, 2026.
IT IS SO ORDERED.
December 23, 2025 	/s/ Indira Talwani
United States District Judge
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