Costa v. McDonald et al

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UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
____________________________________
)
DENNIS COSTA, )
)
Petitioner, )
)
) Civil Action No. 25-CV-13469-AK
v. )
)
JOSEPH D. MCDONALD, Plymouth )
County Sheriff, TODD M. LYONS, Acting )
Director Immigration and Customs )
Enforcement, Boston Field Office, )
PATRICIA HYDE, Field Office Director, )
MICHAEL KROL, HSI New England )
Special Agent in Charge, KRISTI NOEM, )
U.S. Secretary of Homeland Security, )
PAMELA BONDI, U.S. Attorney General, )
DONALD TRUMP, President of the US, )
)
Respondents. )
)
MEMORANDUM AND ORDER ON
PETITIONER’S WRIT OF HABEAS CORPUS
ANGEL KELLEY, D.J.
Before the Court is Petitioner Dennis Costa’s Petition for Writ of Habeas Corpus. [Dkt.
1]. Petitioner challenges his continued detention by U.S. Immigration and Customs Enforcement
under 8 U.S.C. § 1226(a), asserting, inter alia, that the standard applied by the Immigration
Judge during his bond hearing violated the Fifth Amendment’s Due Process Clause. For the
reasons below, Petitioner’s Petition for Writ of Habeas Corpus is GRANTED.
I. BACKGROUND
Petitioner is a sixty-six-year-old citizen of Portugal who has lived in the United States for
approximately fifty-six years. [Dkt. 1 ¶ 20]. In 1969, Petitioner’s status was adjusted to that of a
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Lawful Permanent Resident. [Id. ¶ 21]. In 1991, Petitioner was convicted in Massachusetts state
court of the offenses of Rape, Abuse of a Child, and Indecent Assault and Battery on a Child
Under 14 Years of Age. [Id. ¶ 22; Dkt. 9 at 3]. Petitioner pleaded guilty and was sentenced to a
term of incarceration of ten years. [Dkt. 9 at 3]. Petitioner is a registered Sex Offender in the
Commonwealth of Massachusetts. [Id.].
Over thirty years later, on July 29, 2025, the U.S. Immigration and Naturalization Service
served Petitioner with a Notice to Appear, and removal proceedings were initiated against him.
[Id.]. On August 13, 2025, Petitioner conceded to the factual allegations and charge of
removability as contained in the Notice to Appear. [Id.]. On August 14, 2025, an Immigration
Judge conducted a bond hearing at Petitioner’s request and denied bond after finding that the
government had proven that Petitioner was a danger to the community by clear and convincing
evidence. [Id. at 3-4]. The Immigration Judge explained in a written version of the decision on
September 17, 2025, that the government had the burden of proof in the bond hearing and that
the government met its burden by demonstrating that Petitioner was a danger to the community
based on the serious nature of his criminal conviction. [Id. at 4]. On August 21, 2025, Petitioner
filed a Notice of Appeal of the Immigration Judge’s decision, which remains pending with the
Board of Immigration Appeals. [Id.].
A now-repealed provision of the Immigration and Nationality Act, Section 212(c), offers
a discretionary waiver from deportation for Lawful Permanent Residents who meet certain
eligibility requirements. The Supreme Court held in INS v. St. Cyr, 533 U.S. 289, 326 (2001),
that, despite its repeal, the waiver remains available for certain noncitizens who pleaded guilty to
crimes before April 1997. On September 23, 2025, an Immigration Judge granted a Section
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212(c) waiver to Petitioner. [Dkt. 1 ¶ 25]. On October 21, 2025, the government appealed this
waiver decision, which remains pending. [Dkt. 9 at 4].
On November 6, 2025, the Immigration Judge held a second bond hearing upon
Petitioner’s request, as Petitioner contended that the Section 212(c) waiver constituted materially
changed circumstances. [Id. at 5]. In denying bond, the Immigration Judge assessed whether the
government had established that Petitioner posed a flight risk or a danger to the community,
ultimately concluding that the government met its burden on the latter based on his criminal
history. [Id.]. Petitioner has not appealed this second bond determination. [Id.] Petitioner filed
the instant Petition for Writ of Habeas Corpus in this Court on November 20, 2025. [Dkt. 1].
II. LEGAL STANDARD
Section 2241 confers jurisdiction on federal district courts to order the release of any
person who is held in the custody of the United States in violation of the “laws . . . of the United
States” or the United States Constitution. 28 U.S.C. § 2241(c). The burden rests on the person in
custody to prove his detention is unlawful. Espinoza v. Sabol, 558 F.3d 83, 89 (1st Cir. 2009)
(citing Walker v. Johnston, 312 U.S. 275, 286 (1941)).
III. DISCUSSION
Petitioner contends that the test applied by the Immigration Judge at his second bond
hearing was incomplete, and that the Due Process Clause requires the government to also prove
during 8 U.S.C. § 1226(a) bond hearings that no reasonable alternatives to detention exist that
would ensure the safety of the community and secure future appearances in court.1 [Dkt. 1 ¶¶ 28-
1 Petitioner also contends that the Immigration Judge should have inquired into his ability to pay when setting a
bond amount. [Dkt. 1 ¶ 35]. Here, as bond was denied, the Immigration Judge never got to the point of setting a
bond amount, and so this question is not properly before this Court. See Brito v. Garland, 22 F.4th 240, 253 (1st Cir.
2021) (finding petitioners did not have standing to raise due process challenge to bond amount analysis where “no
[Immigration Judge] ever got to the point of setting a bond amount as a condition for releasing any petitioner”).
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37]. Respondents argue that the Immigration Judge applied the appropriate burden of proof
under First Circuit precedent interpreting the Due Process Clause. [Dkt. 9 at 8-10 (citing
Hernandez-Lara v. Lyons, 10 F.4th 19, 39 (1st Cir. 2021)]. The Court agrees with Petitioner and
finds that by failing to address less restrictive alternatives to detention, the Government failed to
provide Petitioner with constitutionally sufficient procedure.
In Hernandez-Lara, the First Circuit held that due process places the burden of proof on
the government, not the petitioner, during bond hearings under 8 U.S.C. § 1226(a). 10 F.4th at
39. The extent of that burden is to prove that the petitioner poses a danger to the community by
clear and convincing evidence or a flight risk by a preponderance of the evidence. Id. at 41. The
First Circuit has not yet squarely addressed whether that analysis must also include alternatives
to detention. However, the issue has been considered by other sessions of this court, and prior
orders have required Immigration Judges to consider “alternative methods to ensure the safety of
the community and [petitioner’s] future appearances like GPS monitoring” as part of the
assessment of danger and flight risk. Doe v. Tompkins, No. 18-12266, 2019 WL 8437191, at *2
(D. Mass. Feb. 12, 2019), aff’d, 11 F.4th 1 (1st Cir. 2021); see also Brito v. Barr, 415 F. Supp. 3d
258, 271 (D. Mass. 2019), aff’d in part, vacated in part sub nom., Brito v. Garland, 22 F.4th 240
(1st Cir. 2021); Reid v. Donelan, 390 F. Supp. 3d 201, 225 (D. Mass. 2019), aff’d in part,
vacated in part, 17 F.4th 1 (1st Cir. 2021). In Doe v. Tompkins, while the judgment was
affirmed on appeal, the First Circuit expressly withheld ruling on alternatives to detention
because the parties had not raised it. 11 F.4th at 2 (“We therefore consider any challenge to that
part of the district court’s order in this particular case waived and offer no view concerning it
either way.”). Similarly, in Brito, the decision was partially vacated on appeal—not on the
merits, but on administrative exhaustion grounds, leaving the reasoning regarding alternatives
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intact. 22 F.4th at 252. In Reid v. Donelan, the First Circuit vacated the class certification and
found that the district court impermissibly issued declaratory and injunctive relief on a class-
wide basis; the court did not analyze the part of the order regarding alternatives to detention. 17
F.4th at 11-12.
Other district courts, particularly in the Second and Third Circuits, have likewise
recognized a due process right to consideration of alternatives to detention in the context of 8
U.S.C. § 1226(a) bond hearings. E.g., Hernandez-Aviles v. Decker, No. 20 Civ. 7636, 2020 U.S.
Dist. LEXIS 181925, at *7-8 (S.D.N.Y. Oct. 1, 2020) (holding that “not considering alternatives
to detention or ability to pay a bond would run afoul of the protections afforded by the Due
Process Clause” and that “if there is a viable option short of detention such that the
Government’s case for detention is no longer clear and convincing,” the Fifth Amendment
requires that it be considered before confinement is ordered); Hechavarria v. Whitaker, 358 F.
Supp. 3d 227, 241-42 (W.D.N.Y. 2019); Ousman D. v. Decker, No. 20-9646, 2020 WL 5587441,
at *9 (D.N.J. Sept. 18, 2020); O.F.C. v. Decker, No. 22 Civ. 2255, 2020 WL 5743522, at *33-35
(S.D.N.Y. Sept. 12, 2022); Roman v. Decker, No. 20-cv-6752, 2020 U.S. Dist. LEXIS 176814,
at *3-5 (S.D.N.Y. Sep. 25, 2020). Our sister courts highlight that the Supreme Court has upheld
“preventive detention based on dangerousness only when limited to specially dangerous
individuals and subject to strong procedural protections.” Hernandez-Aviles, 2020 U.S. Dist.
LEXIS 181925, at *5-6 (quoting Zadvydas v. Davis, 533 U.S. 678, 690 (2018)). And in the
context of burdens on other constitutional rights, the Supreme Court has held that “[w]hen a
plausible, less restrictive alternative is offered . . . it is the Government’s obligation to prove that
the alternative will be ineffective to achieve its goals.” United States v. Playboy Ent. Grp., Inc.,
529 U.S. 803, 816 (2000).
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The Court aligns with these authorities and finds that, as applied to Petitioner, the
Immigration Judge’s failure to consider whether alternatives to detention or other less restrictive
means could address the risks of danger posed by Petitioner to the community was
constitutionally deficient. Detention must “bear[] [a] reasonable relation to [its] purpose,”
Zadvydas, 533 U.S. at 690 (quoting Jackson v. Indiana, 406 U.S. 715, 738 (1972)), and requiring
the Government to consider alternatives helps ensure such decisions are properly tailored to the
underlying danger or flight risk concerns. It is possible in this context that a method short of
burdening Petitioner’s liberty would suffice to address any concerns of danger, and due process
requires the Government to at least address why those alternatives might be inadequate.
In the alternative, Respondents urge the Court to dismiss the Petition for failure to
exhaust administrative remedies under its common law authority, noting that Petitioner may
appeal to the Board of Immigration Appeals. [Dkt. 9 at 10-13]. The Court declines to do so, as
Petitioner is currently detained and appeal would extend that detention pending further
proceedings. “Exhaustion may be excused” where “a particular plaintiff may suffer irreparable
harm if unable to secure immediate judicial consideration of his claim,” including situations
where “a petitioner will be incarcerated or detained pending the exhaustion of administrative
remedies.” Gomes v. Hyde, 804 F. Supp. 3d 265, 272 (D. Mass. 2025) (quoting Portela-Gonzalez
v. Sec’y of the Navy, 109 F.3d 74, 77 (1st Cir. 1997)). Indeed, this Court has repeatedly
declined to dismiss habeas petitions for failure to exhaust under other analogous provisions of
the Immigration and Nationality Act where, among other factors, the petitioner is actively
detained. E.g., id. at 272-74; Romero v. Hyde, 795 F. Supp. 3d 271, 280 (D. Mass. 2025); Flores-
Powell v. Chadbourne, 677 F. Supp. 2d 455, 463 (D. Mass. 2010). Respondent’s citation to
Brito, where the First Circuit dismissed for exhaustion, is not controlling because the petitioners
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in that case were no longer in custody; had they been detained, the analysis might have been
different. 22 F.4th at 256 (“And, because none of the petitioners remains detained at present, we
see little on the other side of the ledger.” (citing Portela-Gonzalez, 109 F.3d at 77)).
Finally, the Court need not reach Respondent’s arguments regarding mandatory detention
under 8 U.S.C. § 1226(c), as Respondents concede that Petitioner is detained pursuant to 8
U.S.C. § 1226(a) [Dkt. 9 at 14], a separate and independent authority governing discretionary
detention. The Court therefore addresses only the standards governing bond hearings under 8
U.S.C. § 1226(a).
As to remedy, Petitioner seeks an order for his immediate release or “any further relief
this Court deems just and proper.” [Dkt. 1 at 10-11]. The Court agrees with Petitioner that relief
is warranted but disagrees as to the appropriate remedy. The Court orders the Immigration Court
to conduct a new hearing at which it must consider alternatives to detention. See Gomes, 804 F.
Supp. 3d. at 278 (“The First Circuit routinely orders [a new bond hearing] in cases where it has
concluded that a noncitizen detained under Section 1226(a) was denied bond because the
Immigration Court failed to apply the correct legal standards.” (citing Hernandez-Lara, 10 F.4th
at 46; Doe v. Tompkins, 11 F.4th at 2; Brito, 22 F. 4th at 256-57)).
IV. CONCLUSION
For the foregoing reasons, Petitioner’s Petition for Writ of Habeas Corpus is
GRANTED. Respondents are ORDERED to provide Petitioner with a bond hearing under 8
U.S.C. § 1226(a) within 10 calendar days of this Order, during which Respondent must show
that alternatives to detention to ensure the safety of the community would be inadequate. The
Parties are ORDERED to file a status report within 14 calendar days of this Order stating
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whether Petitioner has been granted bond, and, if his request for bond was denied, the reasons for
that denial.
SO ORDERED.
Dated: February 10, 2026 /s/ Angel Kelley
Hon. Angel Kelley
United States District Judge
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