De Souza v. Wesling et al

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
_______________________________________
)
ELIAS ANTONIO DE SOUZA, 	)
)
Petitioner, 	)
) 	Civil Action No.
v. 	) 	26-10210-FDS
)
DAVID WESLING, et al., 	)
)
Respondents. 	)
_______________________________________)
MEMORANDUM AND ORDER ON PETITION FOR WRIT OF HABEAS CORPUS
SAYLOR, J.
This is a habeas petition that concerns the government’s authority to hold a non-citizen
pending removal proceedings. Petitioner Elias Antonio de Souza is a Brazilian national who
entered the United States on or about May 12, 2021, at which time he was encountered by
immigration authorities and released into the United States.
On January 20, 2026, petitioner was arrested and taken into ICE custody, apparently
pursuant to the mandatory detention provision of 8 U.S.C. § 1225(b). He contends that his
continued detention without an individualized bond hearing violates his procedural due-process
right and is not authorized by statute.
To be clear, this Court is without the authority to determine whether petitioner should be
removed from the United States; that is a matter for the immigration courts. Nonetheless, and for
the reasons that follow, the Court agrees that petitioner is being detained without lawful
authority, and therefore will order that he be granted a bond hearing before an immigration
judge.
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I. 	Background
Elias Antonio de Souza, a Brazilian national, entered the United States on or about May
12, 2021. (Pet. ¶ 15; Order of Release on Recognizance, Dkt. No. 6-3). He was encountered by
immigration authorities at the time of his initial entry into the United States, at which point he
was initially taken into custody. (Id.). He was released following that encounter and was given
an “Order of Release on Recognizance.” (Id.).
ICE took de Souza into custody on January 20, 2026, following a scheduled supervision
appointment at ICE’s Boston Field Office in Burlington, Massachusetts. (Pet. ¶ 17). He is
currently detained at Plymouth County Correctional Facility in Plymouth, Massachusetts. (Id.
¶ 7).
The respondents are Antone Moniz, Superintendent, Plymouth County Correctional
Facility; David Wesling, Boston Field Office Director, U.S. Immigration and Customs
Enforcement; Todd Lyons, Acting Director, U.S. Immigration and Customs Enforcement; the
Department of Homeland Security; Kristi Noem, U.S. Secretary of Homeland Security; and
Pamela Bondi, Attorney General of the United States (Pet. ¶¶ 8-13).
On January 26, 2026, the Court ordered that petitioner not be moved outside this District
without prior notice until further order of the Court. (Dkt. No. 8 at 2-3).
On February 2, 2026, respondents answered the petition. (Resp’ts’ Opp’n, Dkt. No. 10).
Respondents conceded that “the legal issues presented in the Petition are similar to those recently
addressed by this Court in De Andrade v. Moniz,” and that “[s]hould the Court follow its
reasoning in De Andrade, it would reach the same result here.” (Id. at 1).
II. 	Analysis
For the reasons discussed in the Court’s decision in De Andrade v. Moniz, 2025 WL
2841844 (D. Mass. Oct. 7, 2025), and those of many other courts across the country, see
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Rodriguez v. Bostock, 2025 WL 2782499, at *1 & n.3 (W.D. Wash. Sept. 30, 2025) (collecting
cases), non-citizens who initially entered the United States without inspection but have resided in
the country for a substantial period of time are subject to discretionary detention under § 1226(a),
not mandatory detention under § 1225(b). Because petitioner has already entered and resides in
the United States, he is not an “applicant seeking admission” under § 1225, and his detention
under that provision is therefore “in violation of the . . . laws . . . of the United States.” 28
U.S.C. § 2241(c)(3).
Petitioner is a member of the class certified in Guerrero Orellana v. Moniz, because he is
detained in Massachusetts; was not placed in expedited removal proceedings; was neither
admitted nor paroled into the United States; is not subject to mandatory detention under
§ 1226(c); is not subject to post-final order detention under § 1231; and his most recent arrest did
not occur at the border when he was arriving in the United States. See Guerrero Orellana v.
Moniz, 2025 WL 3687757, at *10 (D. Mass. Dec. 19, 2025). It is unclear what precise effect the
declaratory judgment in that case has on this action; respondent Moniz was also a respondent in
Guerrero Orellana, so the judgment in that case very likely has collateral-estoppel effect here.
But the Court need not resolve that question for these purposes because it independently
determines that petitioner’s detention violates the INA.
Because petitioner can be held, if at all, only under § 1226(a), he is entitled to a hearing
at which the government must “either (1) prove by clear and convincing evidence that [the
detainee] poses a danger to the community or (2) prove by a preponderance of the evidence that
[he] poses a flight risk.” Hernandez-Lara v. Lyons, 10 F.4th 19, 41 (1st Cir. 2021); see also
Jennings v. Rodriguez, 583 U.S. 281, 306 (2018) (explaining that federal regulation requires that
§ 1226(a) detainees “receive bond hearings at the outset of detention” (citing 8 C.F.R.
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§§ 236.1(d)(1), 1236.1(d)(1))). Therefore, and because respondents have not offered another
authority for petitioner’s detention, the Court will grant the petition and order respondents to
promptly provide petitioner with an individualized bond hearing pursuant to Hernandez-Lara v.
Lyons.
III. 	Conclusion and Order
Accordingly, and for the foregoing reasons, the petition for a writ of habeas corpus under
28 U.S.C. § 2241 is GRANTED. Respondents are hereby ORDERED to either release petitioner
or provide him a constitutionally-adequate bond hearing pursuant to Hernandez-Lara v. Lyons,
10 F.4th 19 (1st Cir. 2021) no later than February 10, 2026.
So Ordered.
/s/ F. Dennis Saylor IV
F. Dennis Saylor IV
Dated: February 3, 2026 	United States District Judge
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