Da Silva Gomes v. Wesling et al

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UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
____________________________________
)
WELBERT DA SILVA GOMES, 	)
)
Plaintiff, 	)
)
) 	Civil Action No. 26-CV-10742-AK
v. 	)
)
DAVID WESLING, Boston Field Office 	)
Director, U.S. Immigration and Customs 	)
Enforcement and Removal Operations 	)
(“ICE/ERO”); ANTONE MONIZ, 	)
Superintendent, Plymouth County 	)
Correctional Facility ; TODD LYONS, 	)
Acting Director of U.S. Immigration 	)
Customs Enforcement (“ICE”); KRISTI 	)
NOEM, Secretary of the Department of 	)
Homeland Security (“DHS”); U.S. 	)
DEPARTMENT OF HOMELAND 	)
SECURITY; and PAMELA BONDI, 	)
Attorney General of the United States, 	)
)
Defendant[s]. 	)
)
ORDER CONCERNING SERVICE OF PETITION,
STAY OF TRANSFER OR REMOVAL, AND
REQUIRED RESPONSE
ANGEL KELLEY, D.J.
Petitioner, a foreign national, has filed a petition for a writ of habeas corpus under 28
U.S.C. § 2241(a) (the “Petition”), contending that they are being unlawfully confined in violation
of the Constitution and laws of the United States.
The Court hereby DIRECTS and ORDERS as follows:
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I. 	SERVICE OF PETITION
The clerk of this court shall serve a copy of the Petition and this Order upon
Respondents, the civil duty attorney for the United States Attorney’s Office, and the United
States Attorney for the District of Massachusetts.
In order to ensure that the relevant government officials have notice of this Order, the
Clerk of Court is directed to serve a copy of this order on the United States Attorney for the
District of Massachusetts by attaching it to an e-mail sent to her government e-mail address. The
e-mail address is set forth in an attachment to this Order, which shall be filed separately under
seal.
II. 	RESPONSE TO PETITION
Before the Court is Petitioner’s Petition for Writ of Habeas Corpus. [Dkt. 1]. The facts
presented in the instant Petition appear materially indistinguishable from Amaya Sanchez v.
Moniz et al., No. 25-CV-12806-AK (D. Mass. Oct. 10, 2025) [Dkt. 10], in which the Court
joined other sessions of this Court, and other courts across the country, in holding that the arrest
and detention of noncitizens within the United States is governed by 8 U.S.C. § 1226(a). On the
facts before it, the Court does not find reason to deviate from the analysis presented in Amaya
Sanchez.
Accordingly, the Court ORDERS Respondents to show cause, no later than three
business days from the date of this Order, why the facts of this case differ from those in Amaya
Sanchez. Should Respondents claim the facts differ, Petitioner shall have three business days to
respond.
Should the parties agree that the facts do not differ in any material aspect, this Court will
find that Petitioner is subject to 8 U.S.C. § 1226’s discretionary detention framework and entitled
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to a bond hearing. The Petitioner has not received such a hearing, so their detention is unlawful.
As a result, Petitioner’s Petition [Dkt. 1] will be GRANTED. Respondents will be ORDERED
to provide Petitioner with a bond hearing under 8 U.S.C. § 1226(a). Respondents will be
ENJOINED from denying Petitioner bond on the basis that they are detained pursuant to 8
U.S.C. § 1225(b)(2).
III. 	JURISDICTION
Petitioner has filed a petition for a writ of habeas corpus under 28 U.S.C. § 2241(a),
contending that they are being unlawfully confined in violation of the Constitution and laws of
the United States.
The protections of the Constitution apply to all persons within the jurisdiction of the
United States, including citizens and non-citizens alike, and including those persons who are
present in the United States without authorization. See Plyler v. Doe, 457 U.S. 202, 210 (1982)
(noting that “[a]liens, even aliens whose presence in this country is unlawful, have long been
recognized as ‘persons’ guaranteed due process of law by the Fifth and Fourteenth
Amendments”).
Although a federal district court does not generally have subject-matter jurisdiction to
review orders of removal issued by an immigration court, see 8 U.S.C. § 1252(a)(1), (g), it does,
however, have jurisdiction over habeas petitions. 28 U.S.C. § 2241(a); see U.S. Const. art. I, § 9,
cl. 2 (providing that “[t]he Privilege of the Writ of Habeas Corpus shall not be suspended, unless
when in Cases of Rebellion or Invasion the public Safety may require it”).
Here, it appears that the relief sought is not review of an immigration order or an
injunction or stay preventing the execution of such an order. Instead, the Petition alleges that the
Petitioner was subject to arrest and detention (and prospective removal) in violation of the
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Constitution and laws of the United States. The Court therefore has subject-matter jurisdiction to
consider the Petition under 28 U.S.C. § 2241(a).
Even if this Court ultimately concludes that it does not have jurisdiction over this
Petition, the Court nonetheless has power to act to preserve the status quo in the near term. A
federal court “always has jurisdiction to determine its own jurisdiction,” including its own
subject-matter jurisdiction. Brownback v. King, 592 U.S. 209, 218-19 (2021) (quoting United
States v. Ruiz, 536 U.S. 622, 628 (2002)). In order to give the Court an opportunity to consider
whether it has subject-matter jurisdiction, and if so to determine the validity of the habeas
petition, the court may order Respondents to preserve the status quo. See United States v. United
Mine Workers of Am., 330 U.S. 258, 293 (1947) (ruling that “the District Court ha[s] the power
to preserve existing conditions while it [is] determining its own authority to grant injunctive
relief,” unless the assertion of jurisdiction is frivolous). Such an order is valid unless and until it
is overturned, even when the issuing court lacks subject-matter jurisdiction to determine the
merits of the underlying action. See id. at 294-95. That principle applies with even greater force
where the action the court enjoins would otherwise destroy its jurisdiction or moot the case. See
United States v. Shipp, 203 U.S. 563, 573 (1906).
IV. 	ORDER
To provide an opportunity for a fair and orderly consideration of this matter and resolve
any contested issues about jurisdiction, and unless otherwise ordered by the Court, it is hereby
ORDERED as follows:
A. Stay of Transfer or Removal
The Petition alleges that Petitioner is being held in the District of Massachusetts.
Petitioner shall not be transferred to another district unless the government provides advance
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notice of the intended move. Such notice shall be filed in writing on the docket in this
proceeding and shall state the reason why the government believes that such a movement is
necessary and should not be stayed pending further court proceedings. Once that notice has been
docketed, the Petitioner shall not be moved out of the District for a period of at least 96 hours
from the time of that docketing.
If the government contests that Petitioner is presently confined in the District of
Massachusetts, the government shall file a notice in writing on the docket stating the name of the
facility in which Petitioner is confined. Such notice shall be provided promptly after the
government becomes aware of that fact.
Petitioner shall not be deported, removed, or otherwise transferred outside the United
States until further Order of this Court.
B. Measurement of Time Periods
Any of the time periods may be shortened or extended as may be appropriate by further
order of the Court.
SO ORDERED.
/s/ Angel Kelley
Hon. Angel Kelley
Issued at Boston, Massachusetts 	United States District Judge
February 11, 2026
8:32 AM
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APPENDIX
E-mail of U.S. Attorney:
leah.foley@usdoj.gov
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