da Silva Andrade v. U.S. Department of Homeland Security et al

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
JEFERSON DA SILVA ANDRADE,
Petitioner,
v.
U.S. DEPARTMENT OF HOMELAND
SECURITY, et al.,
Respondents.
)
)
)
)
)
)
)
)
)
)
)
)
CIVIL ACTION
NO. 25-40201-MRG
ORDER
December 9, 2025
GUZMAN, D.J.
Pro se petitioner Jeferson da Silva Andrade, who is a national of Brazil, has filed a
petition for a writ of habeas corpus under 28 U.S.C. § 2241, asking that the Court issue an order
prohibiting the United States Immigration and Customs Enforcement (“ICE”) from taking certain
actions until his applications for asylum and T-Nonimmigration Status are adjudicated. Pet., ECF
No. 1. He characterizes his claim as one for “[p]reventative habeas relief.” Id. at 6. For the
reasons stated below, the Court DENIES the petition without prejudice.1
I. 	Background
According to Andrade, in October and November 2025, he submitted to the United States
Citizenship and Immigration Services (“USCIS”) applications for asylum and for a T-Visa. Id.
1 The Court may deny the petition without requiring the respondents to submit a response.
Pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United States District
Courts (which is applicable to 28 U.S.C. § 2241 cases pursuant to Rule 1(a)), “if it plainly
appears from the petition and any attached exhibits that the petitioner is not entitled to relief in
the district court, the judge must dismiss the petition[.]” See also 28 U.S.C. § 2243 (if “it
appears from the application [for a writ of habeas corpus] that the applicant . . . is not entitled [to
the writ],” the district court is not required to order the respondent to respond to the petition).
Case 4:25-cv-40201-MRG Document 4 Filed 12/09/25 Page 1 of 5

2
at 3-4. He has not yet received documents from USCIS confirming their receipt of these
applications. Andrade asserts that, with the freeze on the processing of asylum applications and
benefit requests from nationals of high-risk countries,2 the documents confirming USCIS’s
receipt of his applications will not be issued soon, and that should he be detained by ICE, he
would have he has no way of “proving to ICE that [his] humanitarian applications are pending.”
Id. at 4. Andrade alleges that, because of ICE’s escalated of immigration enforcement in
“sanctuary jurisdictions like Massachusetts” and the absence of acknowledgement by USCIS that
it has received his applications, there is a “certainty of [his] detention.” Id.
Andrade is particularly concerned about the harm his youngest son (who is a United
States citizen) would suffer if one or both of his parents were taken into ICE custody. Andrade
maintains that he is “asking for a benefit, not a shortcut, but simply for temporary protection so I
can remain a father until USCIS can process the humanitarian applications I already filed.” Id.
Specifically, he asks for an emergency order that:
1. 	Prohibits ICE from arresting, detaining, or removing [him], [his spouse], ,
or [his two older minor children, who are not United States citizens] until
USCIS lifts the nationwide asylum freeze or adjudicates my I-914 and I-
589
2 	Requires that any detention be followed by an individualized bond hearing
within 7 days.
3. 	Preserves [his] right to appear voluntarily at ICE
4. 	Protects [his] U.S.-citizen son from unconstitutional family separation.
Id. at 6.
2 See U.S. Citizenship and Immigration Services Policy Memorandum, 602-0192, Subject: Hold
and Review of all Pending Asylum applications and all USCIS Benefit Applications Filed by
Aliens from High-Risk Countries (Dec. 2, 2025), available at
https://www.uscis.gov/sites/default/files/document/policy-alerts/PM-602-0192-
PendingApplicationsHighRiskCountries-20251202.pdf
Case 4:25-cv-40201-MRG Document 4 Filed 12/09/25 Page 2 of 5

3
Andrade asks that, in the alternative, the Court prohibit his detention or removal “without
personal service of NTA,” prohibit “collateral arrests,” provide “[p]rotection for 90 days or until
I-797 receipts are issue, whichever comes first,” and preserve his “[r]ight to voluntary
appearance at ICE.” Id. Andrade states that, if the Court grants him relief, he will “voluntarily
appear at ICE within 45 days,” “comply with all supervision requirements,” and “update this
Court with proof of compliance.” Id.
II. 	Discussion
Habeas corpus review is available under § 2241 if a person is “in custody in violation of
the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241(c)(3) (emphasis
added). “[T]he essence of habeas corpus is an attack by a person in custody upon the legality of
that custody, and . . . the traditional function of the writ is to secure release from illegal custody.”
Preiser v. Rodriguez, 411 U.S. 475, 484 (1973). For purposes of habeas jurisdiction, “custody”
is not limited to physical detention. See Rumsfeld v. Padilla, 542 U.S. 426, 437 (2004).
Andrade does not argue that he is presently “in custody.” Pet. at 6. Rather, he seeks
“[p]reventative habeas.” Id. Andrade asserts that such relief is available when “detention is
imminent and unlawful,” “due process will be lost without court intervention,” “a U.S.-citizen
minor faces irreparable harm,” “humanitarian applications are pending but frozen by policy,” and
“administrative remedies are unavailable (USCIS freeze).” Id. Andrade maintains that “this is
precisely the situation recognized in . . . “Devitri v. Cronen (D. Mass. 2017)” and “Calderon v.
Nielson (D. Mass. 2018).” Id. However, these two cases do not suggest that “preventative”
habeas relief is available. In Devitri v. Cronen, 290 F. Supp. 3d 86 (D. Mass. 2017), the Court
found that the petitioners were in “custody” for habeas purposes because they were subject to
final orders of removal, or, even though not ordered removed, they were subject to an Order of
Case 4:25-cv-40201-MRG Document 4 Filed 12/09/25 Page 3 of 5

4
Supervision by ICE. Id. at 90. In Jiminez v. Cronen, 317 F. Supp. 3d 626 (D. Mass. 2018),3 the
petitioners had been ordered removed. Id. at 642-43. They had been arrested by ICE when they
appeared at USCIS offices for an interview as part of their application to adjust their status based
on marriage to a United States citizen. Id. At issue was the lawfulness of the petitioners’
physical custody and their rights vis-à-vis custody review hearings to determine if continued
confinement was justified. Id. at 647-58.
For this Court to have federal habeas jurisdiction, the petitioner must be in custody. 28
U.S.C. § 2241(c)(3). While the cases Andrade cited support the argument that actual physical
custody is not required so long as removal is actionable and imminent, under the alleged facts,
Andrade is not “in custody” for habeas purposes. He is not in the physical custody of the
government, has not been ordered removed, and is not subject to an order of supervision. The
Court appreciates Andrade’s concerns in his present circumstances (especially those concerning
his children), but the Court cannot exercise its habeas jurisdiction in this action. Without
jurisdiction, the Court cannot exercise its power over this case.
Regarding Andrade’s alternative request for relief to protect him from detention or
removal in the future, the Court also lacks jurisdiction for this request. Article III of the U.S.
Constitution and the Declaratory Judgment Act (“DJA”) allow district courts to grant declaratory
relief, but this authority is limited to cases of “actual controversy.” In re Fin. Oversight & Mgmt.
Bd. for Puerto Rico, 919 F.3d 638, 645-646 (1st Cir. 2019); U.S. Const. art. III, § 2, cl. 1; 28
U.S.C. § 2201. In as plain language as possible, this means that a Court cannot make rulings for
relief on a hypothetical state of facts, even if the facts appear plausible. See id. As stated, the
3 Andrade refers to this case as Calderon v. Cronen. The full name of the first-named petitioner
in this action is Lilian Pahola Calderon Jiminez. See Jiminez v. Cronen, 317 F. Supp. 3d 626 (D.
Mass. 2018).
Case 4:25-cv-40201-MRG Document 4 Filed 12/09/25 Page 4 of 5

5
Court’s declaratory power like Andrade requests is limited to cases of “actual controversy,”
meaning cases where “the facts alleged, under all the circumstances, show that there is a
substantial controversy, between parties having adverse legal interests, of sufficient immediacy
and reality to warrant the issuance of a declaratory judgment.” Id. (quoting Maryland Cas. Co. v.
Pacific Coal & Oil Co., 312 U.S. 270, 273 (1941)). “In the absence of an actual controversy,
federal courts cannot issue advisory opinions.” Id. (quoting Golden v. Zwickler, 394 U.S. 103,
108, (1969)). The possibility of Andrade’s future detention or removal is only hypothetical at the
moment, and the Court lacks jurisdiction to order relief on such a claim.
III. 	Conclusion
Accordingly, for the aforesaid reasons, the petition for a writ of habeas corpus is
DENIED without prejudice and this action is DISMISSED.
So Ordered.
/s/ Margaret R. Guzman
Margaret R. Guzman
United States District Judge
Dated: December 9, 2025
Case 4:25-cv-40201-MRG Document 4 Filed 12/09/25 Page 5 of 5