Case Name in Immigration Case - Unavailable

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Hilary Murungi Timbigamba
v. Civil No. 26-cv-281-LM-AJ
Opinion No. 2026 DNH 060 P
FCI Berlin, Warden et al
O R D E R
Petitioner Hilary Murungi Timbigamba filed a petition under 28 U.S.C.
§ 2241 asserting that his civil immigration detention is unlawful in the absence of
an individualized hearing at which the government is required to prove that he
poses a danger to the community or a flight risk if released. This court granted
Timbigamba’s petition and ordered respondents to provide him with a
constitutionally adequate bond hearing before an Immigration Judge (IJ). A bond
hearing was held, but the IJ denied release, finding that Timbigamba is both
dangerous and a flight risk.
Presently before the court is Timbigamba’s motion to enforce this court’s
order granting his habeas petition. Timbigamba contends that the bond hearing
provided was constitutionally inadequate because the evidence presented at his
hearing was insufficient as a matter of law to establish dangerousness or flight risk.
Respondents object. For the following reasons, Timbigamba’s motion (doc. no. 8) is
granted.
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BACKGROUND1
Timbigamba is a 34-year-old Ugandan national. He unlawfully entered the
United States in April 2022. An asylum officer determined that Timbigamba
showed a credible fear of persecution or torture if returned to Uganda. See 8 U.S.C.
§ 1225(b)(1)(B). Officials thereafter released Timbigamba on humanitarian parole
under 8 U.S.C. § 1182(d)(5)(A) and issued him a Notice to Appear in removal
proceedings under 8 U.S.C. § 1229a. The Notice to Appear charged Timbigamba
with inadmissibility under 8 U.S.C. § 1182(a)(6)(A) and (7).
Since his entry into the United States, Timbigamba has purchased a home in
Athol, Massachusetts. He has an active mortgage on that property, which he is
current on. He also enrolled in a master’s degree program in Counseling Psychology
at Framingham State University and obtained a tuition waiver. In addition,
Timbigamba became an active member of the Church of Jesus Christ of Latter-day
Saints in Marlborough, Massachusetts, where he routinely teaches Sunday School
classes and speaks at church services. Until February 2025, Timbigamba worked as
a Program Manager at a group home for intellectually disabled adults operated by
1 The following facts are drawn from materials available to the IJ at the time
of the bond hearing. They are recited in the light most favorable to the IJ’s decision.
See Acero v. FCI Berlin, Acting Warden, --- F. Supp. 3d ----, ----, 2026 WL 821896, at
*1 n.1 (D.N.H. 2026); cf. United States v. Torres Monje, 989 F.3d 25, 27 (1st Cir. 2021)
(explaining that, on a challenge to the legal sufficiency of the evidence to support a
criminal conviction, the court reviews the evidence in the light most favorable to the
verdict).
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Advocates, Inc. 2 As a Program Manager, he oversaw the home’s day-to-day
operations and was responsible for updating residents’ treatment plans.
In May 2025, Advocates’ Director of Corporate Risk Management reported to
the Framingham Police Department that he suspected Timbigamba had been
stealing from one of the homes’ residents. According to the Director, Advocates is
the representative payee for the resident, which means that the resident’s social
security checks are direct deposited into Advocates’ bank account. The Director
explained that, when Advocates acts as a resident’s representative payee, the
resident can request funds from Advocates for things like groceries or to pay bills. If
sufficient funds are available in the resident’s account and if the Finance
Department approves the proposed expenditure, the funds are disbursed to the
resident in the form of a check paid to the order of the resident. Once the check is
ready, it is placed at the front desk of Advocates’ corporate office, at which time the
Program Manager of the resident’s home, or the resident himself, can pick up the
check. The Director further explained that Advocates maintains a “Check Pickup
Log,” which shows the date each check is picked up, the name on the check, the
name of the person picking up the check, the amount of the check, the check
number, and the program or residence of the resident.
The Director stated that an internal review at Advocates uncovered that
seven checks that were intended to be paid to a particular resident at Timbigamba’s
2 Advocates terminated Timbigamba’s employment in February 2025 for
reasons that are not apparent, but which were unrelated to the alleged misconduct
that formed the basis for his criminal charges.
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group home were signed on the back with the resident’s name and “pay to the order
of Hillary [sic] Timbigamba.” Doc. no. 8-4 at 8. The checks were distributed between
March and December 2024, and each check reflected on its backside that it was
deposited at a Digital Credit Union (DCU) branch. The Director said that the
resident to whom the checks pertained never received any of the funds from them,
which totaled $5,750. Finally, the Director claimed there was approximately $4,000
in cash withdrawals from the resident’s own bank account with Santander bank
that the Director “considered to be suspicious,” but that he had no evidence linking
Timbigamba to these withdrawals. Id. at 9.
Detective Sean Wilson thereafter opened an investigation. He learned from
Advocates’ staff that the resident in question has severe mental illness and is
unable to responsibly pay monthly bills on his own. As Program Manager,
Timbigamba was responsible for overseeing the resident’s finances and assisting
him with paying his bills and purchasing any necessities or other items that the
resident wanted to buy. Detective Wilson learned from the Check Pickup Log that
Timbigamba had picked up each of the checks in question, and that each was
deposited into a DCU account held by Timbigamba. Those funds were then either
withdrawn from the account or transferred to another DCU account held by
Timbigamba. However, Detective Wilson did not obtain any additional information
regarding who had made the withdrawals from the resident’s Santander bank
account. He did learn that the account started to have a negative balance in
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November 2024 after the account began to receive return payments on reoccurring
bills for insufficient funds.
Based on the foregoing investigation, Detective Wilson obtained an arrest
warrant and charged Timbigamba via complaint with one count of larceny over
$1200 by a single scheme and one count of larceny over $250 from a disabled
person, both of which are felonies under Massachusetts law. Timbigamba was
arrested and appeared in Massachusetts state court for an arraignment and bail
hearing on July 11, 2025. The judge ordered Timbigamba released on personal
recognizance. However, the Department of Homeland Security, Immigration and
Customs Enforcement (ICE) took Timbigamba into custody as he was leaving the
courthouse.
Timbigamba was supposed to have a pretrial hearing on these criminal
charges on August 25, 2025. According to Timbigamba, ICE refused to arrange for
his transportation to this hearing and declined to facilitate his remote appearance.
The state court therefore issued a bench warrant and entered a default. No hearings
are currently scheduled in Timbigamba’s criminal matter, and his charges remain
pending.
In November 2025, Timbigamba requested a bond hearing before an IJ. The
IJ concluded that Timbigamba’s request was governed by 8 U.S.C. § 1226, but that
the pending larceny charges rendered his detention mandatory under § 1226(c). See
8 U.S.C. § 1226(c)(1)(E) (mandating detention for noncitizens who are inadmissible
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under 8 U.S.C. § 1182(a)(6)(A) or (7) and “charged with” or “arrested for,” inter alia,
larceny). That same month, an IJ ordered Timbigamba removed.
Timbigamba filed a habeas petition in this court on April 9, 2026. Among
other things, he claimed that his detention without a bond hearing violated his due
process rights. The government’s response acknowledged that, if the court applied
Judge Elliott’s reasoning in Destino v. FCI Berlin, Warden, Civ. No. 25-cv-374-SE-
AJ, 2025 WL 4010424 (D.N.H. Dec. 24, 2025), the court “would order that
[Timbigamba] be afforded a bond hearing before an immigration judge” as a matter
of due process. Doc. no. 5 at 2. On April 14, 2026, this court issued an endorsed
order finding that Timbigamba “is entitled to a bond hearing as a matter of due
process” and ordered respondents to provide him with “a constitutionally adequate
bond hearing before an IJ within 7 days.” Endorsed Order of Apr. 14, 2026. The
court specified that, because detention without a bond hearing would violate
Timbigamba’s constitutional rights, “the IJ shall have authority to consider
[Timbigamba’s] release regardless of whether he is subject to mandatory detention
as a statutory matter.” Id.
At the bond hearing, Timbigamba submitted sworn declarations from himself
and another Advocates employee, Kimberly Welsch. In his declaration, Timbigamba
attested that the resident whose funds he was accused of misappropriating has
serious mental illnesses and that the resident’s “treating physicians specifically
instructed that he should not handle money directly” and “should not be given
direct access to cash or expected to conduct financial transactions himself.” Doc. no.
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8-3 at 6. He also attested that Advocates uses a “receipt accountability
requirement,” pursuant to which he was required to submit physical receipts to
Advocates “documenting exactly how the funds from the prior check had been
spent” before another could be issued. Id. at 7. According to Timbigamba, Advocates
would not even accept electronic copies in lieu of the originals, and he would
“submit[ ] receipts exclusively in person . . . because the physical copies were
required in all cases.” Id. Timbigamba explained that this was “a mandatory part of
Advocates’ fiduciary controls” and that “[n]o new funds would be released until the
prior [check] was fully accounted for.” Id.
Timbigamba stated that, “for each of the seven checks at issue . . . [he]
submitted receipts to Advocates’ Finance Department documenting the purchases
[he] made on [the resident’s] behalf before the next check was approved and issued.”
Id. He also said that, because of the recommendations of the resident’s treating
physicians—and given the reality of the resident’s condition, which was such that
he “could not be expected to conduct financial transactions on his own”—“it was
part of the normal course of [Timbigamba’s] duties as Program Manager that checks
issued to [this resident] would be endorsed by [the resident] and made payable to”
Timbigamba. Id. at 7-8. Timbigamba would “then deposit or cash the checks and use
the funds to purchase the items [the resident] needed or requested.” Id. at 8. He
further asserted that “[t]his practice was not unauthorized or unusual,” but was
instead “the mechanism by which the system was designed to operate for residents
like [this one] who, on their physicians’ instructions, could not handle money.” Id.
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Timbigamba underscored that “[t]he endorsed checks were used for [the resident’s]
benefit, and [he] accounted for every expenditure through the receipt submission
process described above.” Id. Finally, Timbigamba represented that the recurring
debits to the resident’s Santander bank account “were standing check requests or
automatic payments that predated and were independent of [his] involvement.” Id.
Welsch’s declaration corroborated Timbigamba’s description of Advocates’
receipt requirement. Welsch attested that, for any check exceeding $100, the staff
member who picked up the resident’s check “was required to submit physical
receipts . . . documenting how the funds had been spent . . . as soon as possible.” Id.
at 11-12. If receipts were not timely submitted, Welsch said that Advocates would
follow up with the relevant staff member. This was “a fundamental part of
Advocates’ fiduciary controls” and “it would be extremely difficult for a staff
member to misappropriate client funds over an extended period” because, “[i]f a
staff member picked up a check and did not return receipts demonstrating that the
funds were spent on the client’s behalf, . . . no subsequent check should have been
issued until the prior expenditure was documented.” Id. at 12. Based on Welsch’s
ten years of experience at Advocates, the organization “actively tracked and
followed up on outstanding receipts,” and did not consider the receipt accountability
requirement “a minor administrative detail.” Id. at 12-13. Welsch also explained
that Advocates had a separate system for recurring monthly expenses, which did
not require approvals or disbursements of funds on an ad hoc basis. Instead, for
regular, fixed expenses (like rent for residing in a group home), payments would be
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automatically processed each month in the same amount and on the same date.
“Accordingly,” said Welsch, “a Program Manager’s financial responsibilities for a
client would typically be limited to the client’s personal, day-to-day expenses.” Id. at
12.
At the bond hearing, Timbigamba argued that ICE refused to transport him
or otherwise facilitate his remote appearance at hearings on these larceny charges,
only to then rely on his pending charges as justification for his immigration
detention.3 He contended that ICE should not be permitted to prevent him from
resolving criminal charges and then justify his immigration detention based on the
pendency of those charges.
Timbigamba also presented evidence of his home ownership in
Massachusetts, his enrollment in a master’s degree program at Framingham State
University, and a letter of support from his church affirming his substantial
involvement in church activities and his positive reputation amongst churchgoers.
In addition, Timbigamba submitted a declaration from a U.S.-citizen bond sponsor
who attested to a longstanding relationship with Timbigamba and his family, and
who pledged to ensure that Timbigamba complied with all release conditions.
3 The government submitted an audio recording of the bond hearing per this
court’s request. See Endorsed Order of May 11, 2026. The court has listened to the
audio file. DHS policies provide that an IJ’s bond decision is “[u]sually” rendered
orally and that a written memorandum of decision is only prepared if one of the
parties appeals the decision to the Board of Immigration Appeals. EOIR Policy
Manual, Pt. II, Ch. 8, § 8.3(e)(7), available at https://www.justice.gov/eoir/policy-
manual-eoir/part-II/icpm/chapter-8-3. As of the time of this order’s issuance, no
written transcript of the bond hearing was available. Timbigamba attempted to
attach an unofficial transcript to his motion, but it is illegible. Doc. no. 8-6.
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At the bond hearing, the government did not respond to Timbigamba’s
evidence regarding Advocates’ receipt requirement or to Timbigamba’s testimony
that he complied with that requirement. While the government did present police
reports summarizing the Risk Management Director’s allegations and Detective
Wilson’s subsequent investigation, omitted from those reports is any mention of
Advocates’ receipt requirement, and there is no indication in the reports that the
Director or Detective investigated whether Timbigamba submitted receipts for the
checks in question. Nor did the government address Timbigamba’s assertion that
ICE had unreasonably failed to facilitate resolution of the criminal charges it was
relying upon to justify his detention. Instead, the government argued only that
those pending charges established Timbigamba’s dangerousness by clear and
convincing evidence, and that the non-final removal order established his flight risk
by a preponderance of the evidence.4
The IJ adopted the government’s contentions. While stating that she
“reviewed the record carefully and considered all parties’” arguments, the IJ found
that the government showed Timbigamba to be a danger to the community by clear
and convincing evidence because he “is currently under investigation for larceny.”
Though she acknowledged that Timbigamba had not been convicted, the IJ stated
that she had “reviewed the records with regard to these checks” and believed that
the record provided a sufficient basis to find dangerousness by clear and convincing
4 While the government also stated that Timbigamba had an “open warrant,”
it neglected to note that issuance of the August 2025 bench warrant was due to ICE’s
failure to transport him to the pretrial hearing in his criminal proceeding.
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evidence. She did not otherwise explain the basis for her dangerousness finding. “In
the alternative,” the IJ ruled, the government proved flight risk by a preponderance
of the evidence that no amount of bond could ameliorate. The IJ stated that
Timbigamba was subject to a non-final order of removal and that he did “not seem
to have any viable path to relief from removal.” She also stated that he had only
come to the United States “relatively recently” in 2022 and “has limited ties to the
community.” Although the IJ said she considered Timbigamba’s membership in his
religious community, his home ownership, and his educational pursuits, she
ultimately concluded that, “given that he simply seems to have no viable avenue to
relief and he’s already been ordered removed,” his release presented “a very
significant flight risk” that no amount of bond or conditions of release could
ameliorate. The hearing lasted approximately eleven minutes.
DISCUSSION
I. Background
A noncitizen who is “in the country” may be detained during the pendency of
removal proceedings pursuant to 8 U.S.C. § 1226. Jennings v. Rodriguez, 583 U.S.
281, 289 (2018). Generally speaking, DHS has the authority to release noncitizens
facing removal proceedings on “bond of at least $1,500” or “conditional parole.” 8
U.S.C. § 1226(a).5 Section 1226(c) eliminates DHS’s discretion to release certain
5 An ICE officer “makes the initial detention determination” under § 1226(a).
Hernandez-Lara v. Lyons, 10 F.4th 19, 26 (1st Cir. 2021). Regulations provide that,
if the noncitizen disagrees with the officer’s decision, he may appeal it to an IJ, who
may then “exercise the authority” in § 1226(a) to detain or release the noncitizen. 8
C.F.R. § 236.1(d)(1).
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categories of “criminal” noncitizens. Id. § 1226(c). As relevant to this case, DHS is
statutorily required to detain noncitizens charged with specified offenses (one of
which is larceny) who are inadmissible under 8 U.S.C. § 1182(a)(6)(A) or (7). 8
U.S.C. § 1226(c)(1)(E). Here, Timbigamba has been ordered removed pursuant to a
Notice to Appear that charges him with being inadmissible under § 1182(a)(6)(A)
and (7), and he faces pending larceny charges.
While § 1226(c) may eliminate DHS’s statutory discretion to consider
Timbigamba’s release, this court and others have recognized that noncitizens with
sufficient ties to the United States have a due process right not to be subjected to
civil immigration detention unless the government proves at an individualized
hearing that the noncitizen is dangerous or a flight risk. Destino, 2025 WL 4010424,
at *9.6 In other words, some noncitizens have a due process right to a bond hearing
regardless of whether their detention is mandated by statute. Id. at *7. In this case,
6 In Demore v. Kim, 538 U.S. 510, 528-31 (2003), the Supreme Court held that
§ 1226(c)’s mandatory-detention requirement did not violate due process. However,
at the time Demore was decided, § 1226(c) only applied to noncitizens “who had
already been convicted (beyond a reasonable doubt) of committing certain serious
crimes.” Hernandez-Lara, 10 F.4th at 35. Demore highlighted that, in enacting the
version of § 1226(c) then-under consideration, Congress had evidence before it that
permitting the discretionary release of noncitizens convicted of serious crimes would
lead to a substantial number of those noncitizens reoffending, failing to appear for
removal proceedings, and unlawfully remaining in the United States. 538 U.S. at 518-
20. Congress expanded § 1226(c)’s mandatory detention regime in 2025 to include
noncitizens who are “charged with” or “arrested for” certain nonviolent theft offenses,
even if they have not yet been “convicted of” those offenses. Laken Riley Act, Pub. L.
No. 119-1, § 2, 139 Stat. 3, 3 (2025). The Supreme Court has not yet addressed the
constitutionality of denying bond hearings to noncitizens with significant ties to the
United States who are merely charged with nonviolent theft offenses. See Alcantara
Guerrero v. Wesling, --- F. Supp. 3d ----, ----, 2026 WL 931503, at *4 (D. Mass. 2026).
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the government has taken the position that, while Timbigamba’s pending charges
bring him within the ambit of § 1226(c), he is nevertheless entitled to a bond
hearing as a matter of due process if this court applies Judge Elliott’s reasoning in
Destino. Doc. no. 5 at 2-3; see also Destino, 2025 WL 4010424, at *11 (holding that
noncitizens with established ties to the United States who have been paroled into
the country have a “particularly strong” liberty interest in remaining free that
cannot be revoked without process).
Because the undersigned finds Destino’s analysis persuasive and in light of
the parties’ positions, this court granted Timbigamba’s habeas petition on the
ground that his detention in the absence of a bond hearing violated his due process
rights. See Endorsed Order of Apr. 14, 2026. The court ordered respondents “to
provide [Timbigamba] with a constitutionally adequate bond hearing before an IJ
within 7 days” and made clear that, “[b]ecause [Timbigamba] is entitled to a bond
hearing as a matter of due process, the IJ shall have authority to consider [his]
release regardless of whether he is subject to mandatory detention as a statutory
matter.” Id. A bond hearing was held on April 22, but as noted, the IJ denied
release. Timbigamba now moves to enforce this court’s April 14 order, contending
that his bond hearing was constitutionally inadequate because the evidence
submitted was insufficient as a matter of law to find dangerousness or flight risk.
Where a court sitting in habeas has ordered a bond hearing to remedy
otherwise unconstitutional detention, the court retains authority to ensure that the
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bond hearing provided passes constitutional muster.7 E.g., Massingue v. Streeter,
No. 3:19-cv-30159-KAR, 2020 WL 1866255, at *3-4 (D. Mass. Apr. 14, 2020). In
Hernandez-Lara v. Lyons, 10 F.4th 19, 41 (1st Cir. 2021), the First Circuit held
that, in order to detain a noncitizen under § 1226(a), “due process requires the
government to either (1) prove by clear and convincing evidence that [the
noncitizen] poses a danger to the community or (2) prove by a preponderance of the
evidence that [the noncitizen] poses a flight risk.” While the Circuit’s holding was
technically concerned with bond hearings afforded under § 1226(a), this court
discerns no reason that the Circuit’s analysis regarding the constitutionally
requisite burden of proof would not also apply to bond hearings ordered as a matter
7 In opposing Timbigamba’s motion to enforce, respondents have not argued
that this court lacks jurisdiction over Timbigamba’s sufficiency-of-the-evidence claim
pursuant to 8 U.S.C. § 1226(e). Even if they had so argued, § 1226(e) only bars judicial
review of the IJ’s “discretionary judgment regarding the application of this section.”
8 U.S.C. § 1226(e) (emphasis added). Timbigamba’s bond hearing was compelled by
the constitution and not § 1226; therefore, the IJ’s bond determination did not involve
“application of” § 1226. Id. In any event, and as this court has repeatedly held,
§ 1226(e) does not deprive courts of “jurisdiction to review an Immigration Judge’s
discretionary bond denial . . . where that bond denial is challenged as legally
erroneous or unconstitutional.” Mayancela Mayancela v. FCI Berlin, Warden, Civ.
No. 25-cv-348-LM-TSM, 2025 WL 3215638, at *4 (D.N.H. Nov. 18, 2025) (brackets
omitted) (quoting Diaz-Calderon v. Barr, 535 F. Supp. 3d 669, 676 (E.D. Mich. 2020));
accord Lokombe v. Wesling, Civ. No. 26-cv-253-JL-TSM, 2026 WL 1270814, at *2
(D.N.H. May 8, 2026) (Laplante, J.); Flores v. Brackett, Civ. No. 26-cv-94-PB-TSM,
2026 WL 1179959, at *2 (D.N.H. Apr. 30, 2026) (Barbadoro, J.); see also Zheng v.
Rokosky, --- F. Supp. 3d ----, ----, 2026 WL 800203, at *3 (D.N.J. 2026) (“[W]hile this
Court does not have jurisdiction to review the IJ’s discretionary decision to grant or
deny bond, it may review whether a bond hearing was fundamentally unfair and thus
violated the Due Process Clause of the Fifth Amendment.”). Because Timbigamba
claims that his bond hearing was constitutionally inadequate, this court has
jurisdiction to assess his claim even if review of this bond hearing is constrained by
§ 1226(e).
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of due process. The government does not dispute that, in order to detain
Timbigamba, it needed to establish at the bond hearing that he poses a danger by
clear and convincing evidence or a flight risk by a preponderance of the evidence.
The court’s analysis therefore proceeds from the assumption that the burden of
proof articulated in Hernandez-Lara governed Timbigamba’s bond hearing.
To obtain relief on the instant motion, Timbigamba must demonstrate that
the IJ “failed to place the burden of proof on the Government” to either show
dangerousness by clear and convincing evidence or flight risk by a preponderance of
the evidence. Diaz Ortiz v. Smith, 384 F. Supp. 3d 140, 143 (D. Mass. 2019). One
way to make this showing is by establishing that the evidence before the IJ was
such that no reasonable IJ could have concluded that the government met its
burden of demonstrating dangerousness or flight risk to the requisite degree of
certainty. Mayancela Mayancela, 2025 WL 3215638, at *5-6. Timbigamba contends
that the evidence was insufficient on both scores.8 The court first turns to evidence
of dangerousness, before assessing the flight-risk evidence.
8 Respondents contend that Timbigamba is required to exhaust his arguments
in an appeal to the BIA before this court may consider them. Even assuming a
common-law exhaustion requirement applies, the court excuses it because
Timbigamba has already been detained for over ten months and the BIA likely lacks
jurisdiction to review whether the IJ’s findings comported with Timbigamba’s due
process rights or this court’s habeas order. See Williams v. Warden, FCI Berlin, 793
F. Supp. 3d 412, 422 (D.N.H. 2025); Ribeiro-Almeida v. FCI Berlin, Warden, 811 F.
Supp. 3d 245, 248 (D.N.H. 2025).
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II. The Evidence Was Legally Insufficient to Establish Timbigamba’s
Dangerousness
Beginning with dangerousness, the First Circuit has recognized that “[t]he
clear and convincing standard is a demanding standard to satisfy.”9 United States
v. Anonymous Appellant, 85 F.4th 576, 580 (1st Cir. 2023). To establish a
noncitizen’s dangerousness by clear and convincing evidence, the government must
show that it is “highly probable” or “reasonably certain” that the noncitizen is
dangerous. Díaz-Alarcón v. Flández-Marcel, 944 F.3d 303, 306 n.5 (1st Cir. 2019)
(first quoting Colorado v. New Mexico, 467 U.S. 310, 316 (1984), and then quoting
Evidence: Clear and Convincing Evidence, Black’s Law Dictionary (10th ed. 2014)).
In this case, the government’s attempt to meet its burden to establish
Timbigamba’s dangerousness rested entirely on the pendency of his larceny charges
and on the police reports underlying those charges. However, the record makes
clear that Timbigamba had exculpatory evidence to rebut these charges.10 And he
alleges that ICE did not transport him to court so that he could be exonerated.
Although a sufficiency-of-the-evidence analysis affords significant deference to the
9 Application of the clear-and-convincing standard “reflects the value society
places on” the private interest sought to be deprived, and applies, among other things,
to governmental efforts “to terminate parental rights, deport a noncitizen, or
denaturalize an individual.” Hernandez-Lara, 10 F.4th at 39-40 (citations omitted)
(quoting Addington v. Texas, 441 U.S. 418, 425 (1979)).
10 In conducting sufficiency-of-the-evidence review, the court reviews “the
entire record,” including the evidence submitted in rebuttal to the party bearing the
burden of proof. United States v. Teleguz, 492 F.3d 80, 86 (1st Cir. 2007); see also
United States v. Rivera-Rosario, 300 F.3d 1, 11 (1st Cir. 2002) (“[W]e are routinely
required to review the entire record of the proceedings below before deciding whether
the evidence is sufficient . . . ; we do not simply read the record until we have
identified sufficient evidence and then stop reading at that point.”).
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decision under review, “some degree of intellectual rigor is required,” and “a
reviewing court should not give credence to ‘evidentiary interpretations and
illations that are unreasonable, insupportable, or overly speculative.’” Leftwich v.
Maloney, 532 F.3d 20, 23 (1st Cir. 2008) (quoting United States v. Spinney, 65 F.3d
231, 234 (1st Cir. 1995)).
At his bond hearing before the IJ, Timbigamba submitted a sworn
declaration describing Advocates’ requirement that, before a new check could be
disbursed to a resident or for expenditures made on the resident’s behalf, the
Finance Department required physical receipts documenting exactly how funds
from the immediately prior check were spent. Timbigamba swore under oath that
he complied with this receipt requirement for each of the seven checks at issue, that
the expenditures were approved each time, and that all funds from those checks
were spent on items or bills for the resident to whom they pertained. Welsch’s
declaration corroborated Timbigamba’s description of Advocates’ receipt
requirement and underscored that this requirement made it such that diversion of a
resident’s checks over an extended period would be virtually impossible.
The government provided no evidence rebutting Timbigamba’s evidence.
Indeed, the police reports (which were all the government relied upon) make no
mention of the receipt-submission requirement, and there is no indication that the
Risk Management Director or Detective Wilson investigated whether Timbigamba
submitted receipts documenting his purchases. While the Director and the
Detective certainly alleged that Timbigamba picked up the resident’s checks and
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deposited or cashed them himself, Timbigamba and Welsch both explain—without
contradiction—that this was standard practice for residents who were unable to
handle money or conduct financial transactions. Indeed, the police report upon
which the government relied describes statements from other employees of
Advocates’ Risk Management Department that Program Managers like
Timbigamba are “tasked with overseeing [residents’] finances,” “assisting [them]
with paying . . . bills,” and “purchasing any necessities or goods that [residents]
would like to purchase.” Doc. no. 8-4 at 10.
“Generally, a [factfinder] may not reject testimony that is uncontradicted and
unimpeached . . . .” Quintana-Ruiz v. Hyundai Motor Corp., 303 F.3d 62, 75 (1st Cir.
2002). To be sure, lack of credibility may provide a basis to disregard otherwise
uncontradicted evidence—but “[t]here must . . . be some affirmative evidence in the
record to put the witness’s credibility in doubt.” Id. at 76. Although Timbigamba’s
declaration must be considered alongside the reality that he “quite obviously had a
personal interest in the outcome of the case,” id., there is no affirmative evidence in
the record putting Welsch’s credibility at issue despite the fact that she considered
Timbigamba a friend, see doc. no. 8-3 at 13; see also Quintana-Ruiz, 303 F.3d at 76
(holding that “the fact that the witness was an employee of the defendant was not a
sufficient basis for the jury to reject his [uncontradicted] testimony”).
The IJ failed to explain the evidentiary significance she ascribed to
Timbigamba’s unrebutted exculpatory evidence or the analytical process by which
she discounted it. While an IJ “need not discuss ad nauseam every piece of
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evidence,” the “IJ may not simply ignore substantial testimonial and documentary
proof.” Barnica-Lopez v. Garland, 59 F.4th 520, 530 (1st Cir. 2023) (quoting Pan v.
Gonzales, 489 F.3d 80, 87 (1st Cir. 2007)). To the contrary, an IJ must “give[ ]
reasoned consideration to the evidence as a whole, ma[k]e supportable findings, and
adequately explain[ ] its reasoning.” Id. (quoting Pan, 489 F.3d at 87). Although the
IJ said she “reviewed the record carefully and considered all parties,” she justified
her dangerousness finding without mention of Timbigamba’s or Welsch’s
declarations. The IJ failed to demonstrate reasoned consideration of this crucial
exculpatory evidence, and the underpinnings by which she discounted it cannot be
inferred from her reasoning on the record or the materials submitted at the hearing.
What is more, the IJ specifically anchored her dangerousness finding on the
fact that Timbigamba “is currently under investigation for larceny” and had
pending larceny charges, even though the charges were “not a conviction.” But
Timbigamba has substantial evidence exculpating him of these pending charges,
and he has alleged that ICE refused to transport him to hearings in this criminal
proceeding at which he could clear his name. Timbigamba’s allegations (again
uncontradicted by the government) reflect a troubling reality for many noncitizens
like Timbigamba with pending criminal charges in ICE detention, and which courts
and commentators have only just begun to meaningfully discuss.
Namely, ICE is often refusing to transport individuals in its custody to
criminal court appearances (or to otherwise facilitate those individuals’
appearances) only to then rely upon the charges ICE has caused to remain pending
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as justification for the individuals’ continued detention. See Tiffany J. Lieu, The
Accountability Deficit: When Immigration Detention Obstructs One’s Day in
Criminal Court, 125 Colum. L. Rev. 1631, 1648-54 (2025) (identifying and
discussing numerous examples of ICE’s failure to produce detainees for criminal
proceedings); Doe v. DHS, Civ. No. 3:24-259, 2025 WL 360534, at *2 (W.D. Pa. Jan.
31, 2025) (addressing constitutionality of alleged ICE policy “of refusing to permit
non-citizens detained in [Moshannon Valley Detention Center] access to New Jersey
state [criminal] court proceedings via video-conferencing technology or telephone”
despite availability of “the technology [needed] for criminal hearings to take place
at” the detention center). Because an IJ may consider an individual’s criminal
record (including pending charges) in granting or denying bond, see In re Guerra,
24 I. & N. Dec. 37, 40-41 (BIA 2006), abrogated in part on other grounds by
Hernandez Lara, 10 F.4th at 41, “a noncitizen defendant who suffers obstruction of
court access because of immigration detention may be forced to remain in
immigration detention precisely because of that detention,” Lieu, supra, at 1674. As
the Western District of Pennsylvania recently recognized, when ICE denies
detained noncitizens access to their criminal proceedings, it prevents them “from
challenging evidence brought against them and establishing their innocence,” in
addition to causing myriad additional deprivations of constitutional rights
noncitizens are entitled to in connection with their criminal proceedings (such as
the rights to counsel and confrontation). Doe, 2025 WL 360534, at *4. The result is a
Kafkaesque spiral: “the very detention that obstructs the criminal process
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perpetuates that detention, which in turn perpetuates the obstruction of criminal
process, and so on.” Lieu, supra, at 1638.
In this case, the IJ failed to demonstrate that she gave any consideration to
Timbigamba’s allegation that ICE has refused to facilitate his appearance in court
to face and be exonerated from his pending charges. In other words, without
explanation, the IJ ascribed evidentiary significance to pending criminal charges
where the entity relying upon the pendency of those charges to meet its burden of
proof is the same entity that has prevented Timbigamba from establishing his
innocence of those charges.
All told, the evidence of dangerousness presented to the IJ amounted to police
reports documenting a materially incomplete larceny investigation that resulted in
charges Timbigamba had a powerful defense to and which, but for ICE’s refusal to
bring him to court, he may well have been exonerated of by the time of the bond
hearing. The IJ also had evidence before her that Timbigamba had no prior criminal
record, that he had received no disciplinary infractions during his nine-plus months
in custody, that he is a Sunday School teacher and an active church member, and
that at least three persons authored letters of support attesting to Timbigamba’s
good character. Even construing the evidence in the light most favorable to the IJ’s
decision, the court finds that the evidence available to the IJ was insufficient as a
matter of law to establish, after reasoned consideration, that Timbigamba’s release
posed a danger to the community to a high degree of probability or reasonable
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certainty. The IJ’s dangerousness finding therefore violated Timbigamba’s due
process rights.
III. The Evidence Was Legally Insufficient to Establish that Timbigamba’s
Release Posed a Risk of Flight That No Amount of Bond or Conditions of
Release Could Sufficiently Ameliorate
In the alternative to her dangerousness finding, the IJ found by a
preponderance of the evidence that Timbigamba is a flight risk that no amount of
bond could ameliorate. While less demanding than the clear-and-convincing
standard, “the preponderance standard is not toothless,” and the party who bears
the burden must “present[ ] reliable and specific evidence.” United States v.
Stimpson, 113 F.4th 350, 355 (3d Cir. 2024) (quoting United States v. Roman, 121
F.3d 136, 141 (3d Cir. 1997)); see also Guerra, 24 I. & N. Dec. at 40-41 (holding that
an IJ’s bond decision must be based upon evidence in the record that is “probative
and specific”). In the civil immigration context, the government’s burden of
demonstrating flight risk is no less weighty than its burden of demonstrating that a
criminal defendant should be detained pretrial on the basis of flight risk.
Hernandez-Lara, 10 F.4th at 40.
Timbigamba presented evidence to the IJ that: (1) he owns a home in Athol,
Massachusetts, with an active mortgage that he was current on; (2) at the time of
his arrest, he was enrolled in a master’s degree program at Framingham State
University; (3) he is an active member of a local church, where he teaches Sunday
School classes and regularly speaks at church services; (4) he has no prior criminal
record in the United States or elsewhere; (5) he has no disciplinary infractions while
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in custody; (6) a U.S. citizen who knows him well was willing to sponsor his release
on bond and pledged to ensure he attended all court hearings as required; and (7)
additional community members authored letters attesting to Timbigamba’s good
character. The government argued that Timbigamba posed a flight risk because he
has been ordered removed, and dismissed Timbigamba’s evidence of community ties
as “not . . . significant.”
The IJ found that Timbigamba’s release posed an unacceptable risk of flight
“primarily” because he is subject to a non-final order of removal. However, a non-
final “order of removal is not, by itself, sufficient to deny bond.” Sales v. Johnson,
323 F. Supp. 3d 1131, 1141 (N.D. Cal. 2017). To the contrary, the INA specifically
provides that the existence of an order of removal compels denial of bond only once
that order becomes “administratively final.” 8 U.S.C. §§ 1231(a)(1)(B)(i), (2)(A); see
also 8 C.F.R. § 1241.1 (specifying circumstances in which “[a]n order of removal
made by the [IJ] at the conclusion of proceedings under [8 U.S.C. § 1229a] shall
become final”). Permitting denial of bond based on the mere fact of a non-final
removal order would be in conflict with Congress’s decision to mandate detention for
noncitizens with orders of removal only once those orders become final. Where an IJ
has discretion to consider a noncitizen’s release on bond, the IJ must exercise that
discretion in an individualized fashion based on the noncitizen’s specific
circumstances, not merely the procedural posture of their removal proceedings. See
Guerra, 24 I. & N. Dec. at 40 (listing factors to be considered); see also 8 C.F.R.
1003.19(d) (“Consideration by the Immigration Judge of an application
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. . . regarding custody or bond . . . shall be separate from and apart from, and shall
form no part of, any deportation or removal hearing or proceeding.”).
The IJ stated that she considered Timbigamba’s ties to his church, his home
ownership, and his degree program, but nevertheless found that he “has limited ties
to the community” because he came to the United States “relatively recently” in
2022. But immigration authorities had released Timbigamba in 2022 after he had
been in the United States for only a few weeks. In granting Timbigamba
humanitarian parole under 8 U.S.C. § 1182(d)(5)(A) in 2022 and allowing him to
enter the country, DHS necessarily determined that Timbigamba “present[s]
neither a security risk nor a risk of absconding.” 8 C.F.R. § 212.5(b); see also
Kirboga v. LaRose, 819 F. Supp. 3d 1137, 1153-54 (S.D. Cal. 2025) (explaining that
release on humanitarian parole “reflects a determination by the government that
the noncitizen is not a danger to the community or a flight risk” (quoting Saravia v.
Sessions, 280 F. Supp. 3d 1168, 1176 (N.D. Cal. 2017))). Since the time of DHS’s
determination, Timbigamba’s ties to the United States have deepened. Where
Timbigamba’s newfound circumstances have only reinforced the accuracy of DHS’s
2022 determination that he posed no flight risk, denying Timbigamba’s release four
years later on the basis of a flight risk finding absent a material change in
circumstances is “so arbitrary that it . . . offend[s] fundamental tenets of due
process.” Hernandez-Azuaje v. Hyde, Civ. No. 25-CV-13224-ADB, 2026 WL 221833,
at *1 (D. Mass. Jan. 28, 2026) (quoting Diaz Ortiz, 384 F. Supp. 3d at 144); see also
Y.S.G. v. Andrews, No. 2:25-cv-1884-SCR, 2025 WL 2979309, at *10 (E.D. Cal. Oct.
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22, 2025) (“Petitioner was previously released pursuant to a finding that he was not
at risk of fleeing or harming others, and as such, due process prevents him from
being redetained except upon a showing of a material change in circumstances.”
(quotation omitted)).
While acknowledging Timbigamba possessed what she deemed “limited” ties
to the community, the IJ stated that those ties were outweighed by the fact “that he
simply seems to have no viable option for relief and has already been ordered
removed.” Separate and apart from the mere fact of a non-final removal order
(which is insufficient on its own to find flight risk for the reasons discussed above),
BIA precedent permits IJs to consider the likelihood that a noncitizen might obtain
relief from removal in assessing the noncitizen’s risk of absconding from future
proceedings. In re Andrade, 19 I. & N. Dec. 488, 491 (BIA 1987). However, if the IJ
“makes ‘an unambiguous misstatement of law’ in describing the petitioner’s
prospects of avoiding removal, this legal error may fatally infect a flight risk
determination.” Kharis v. Sessions, No. 18-cv-04800-JST, 2018 WL 5809432, at *9
(N.D. Cal. Nov. 6, 2018) (quoting Zabaleta v. Decker, No. 18-CV-1802 (JGK), 2018
WL 4473340, at *4 (S.D.N.Y. Sept. 17, 2018)). In this case, the IJ failed to articulate
the basis for her conclusion that Timbigamba had no viable path to obtain relief
from removal, nor is her reasoning clear from the record.
Federal courts have begun to recognize “mounting evidence that bond
determination hearings conducted in Immigration Court . . . have preordained
outcomes.” Singh v. Valdez, No. 1:26-cv-1109-WJM, at *10-11 (D. Colo. Apr. 1, 2026)
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(doc. no. 11). “IJs often cite little or no reasoning in determining that noncitizens
are a flight-risk,” which frustrates federal courts from exercising what little
authority they have to review bond determinations, and “effectively allow[s] the
Government to transform an unlawful detention into a lawful one through post-hoc
justifications.” Id. (quoting Zheng v. Rokosky, --- F. Supp. 3d ----, ---- 2026 WL
800203, at *11 (D.N.J. 2026)). Against this reality, courts have held that an IJ’s
flight-risk determination unsupported by any attempt at reasoned justification
violates the noncitizen’s due process rights. See, e.g., Zheng, --- F. Supp. 3d at ----,
2026 WL 800203, at *8; Miri v. Bondi, No. 5:26-cv-00698-MEMF-MAR, 2026 WL
622302, at *9 (C.D. Cal. Mar. 5, 2026) (bond denial violated due process where the
IJ “did not explain the reasons for denying . . . bond and the record does not
establish that the Immigration Judge relied on the appropriate factors”); Rodriguez
v. Greene, No. 4:26-cv-0333, 2026 WL 574961, at *12 (N.D. Ohio Mar. 2, 2026) (bond
denial violated due process where IJ found flight risk “without supplying any
reasoning how the IJ came to such a conclusion”).
All told, the IJ denied Timbigamba bond on the basis of a flight risk finding
despite DHS’s determination in 2022 that he posed no flight risk. Timbigamba’s ties
to the community have only grown since 2022, having purchased a home, enrolled
in an advanced degree program, and joined a faith community. There was no
evidence before the IJ that he had ever failed to appear for any hearings in
connection with his removal proceedings or any other proceedings. The fact of
Timbigamba’s non-final removal order is insufficient as a matter of law to establish
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his flight risk, and the IJ failed to demonstrate reasoned consideration in support of
her determination that he was unlikely to obtain relief from removal. Viewing the
evidence and bond proceeding as a whole—and especially keeping in mind that the
evidence needed to find flight risk in the immigration detention context must be at
least as weighty as the evidence needed in the pretrial criminal detention context—
the evidence was insufficient as a matter of law to justify Timbigamba’s detention
on grounds of flight risk, and the IJ’s finding violated Timbigamba’s due process
rights.
IV. Remedy
Having found that the bond hearing violated both Timbigamba’s
constitutional rights and this court’s order granting his habeas petition, the
question becomes one of remedy. Timbigamba—who has now been incarcerated for
over ten months—seeks immediate release. Many courts have ordered such relief in
similar circumstances. See, e.g., Zheng, --- F. Supp. 3d at ----, 2026 WL 800203, at
*10-11 (ordering immediate release where petitioner had already been detained for
five months without a bond hearing and, after the court ordered respondents to
provide a bond hearing, the IJ denied bond based on legally insufficient evidence in
violation of petitioner’s due process rights); España v. Nessinger, No. 26-cv-014-
JJM-PAS, 2026 WL 821788, at *13 (D.R.I. Mar. 25, 2026) (similar). The
government’s objection fails to address the appropriate remedy.
Historically, “common-law habeas corpus was, above all, an adaptable
remedy,” whose “precise application and scope changed depending upon the
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circumstances.” Boumediene v. Bush, 553 U.S. 723, 779 (2008). The writ’s “most
extensive” role at common law was “in cases of pretrial and noncriminal detention,
where there had been little or no previous judicial review of the cause for
detention.” Id. at 780. In Boumediene, the Supreme Court made clear that, “when
the judicial power to issue habeas corpus properly is invoked the judicial officer
must have adequate authority . . . to formulate and issue appropriate orders for
relief, including, if necessary, an order directing the prisoner’s release.” Id. at 787.
At the same time, the court’s authority to issue relief in habeas proceedings is not
unlimited. Flores-Powell v. Chadbourne, 677 F. Supp. 2d 455, 474 (D. Mass. 2010).
“Rather, the remedy should be tailored to the injury suffered and should not
unnecessarily infringe on competing interests.” Id. (ellipsis omitted) (quoting
Ferrara v. United States, 384 F. Supp. 2d 384, 434 (D. Mass. 2005)).
In this case, the court’s original order required the government to provide
Timbigamba a constitutionally adequate bond hearing before an IJ. The
government failed to provide Timbigamba with that relief. As the court has
provided the government with an opportunity to carry its burden of justifying
Timbigamba’s detention and the facts elicited at the hearing demonstrate as a
matter of law that Timbigamba is neither a danger nor a flight risk, it would be
inequitable and a waste of resources to grant further relief in the form of an
additional bond hearing—either before this court or an IJ. See id. at 477 (concluding
that petitioner’s detention had become unreasonably prolonged under 8 U.S.C.
§ 1226(c) but that, since the statutory justification for a noncitizen’s detention does
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not revert to § 1226(a) after becoming unreasonably prolonged, the court could order
relief in the form of a bond hearing before an Article III judge); cf. Burks v. United
States, 437 U.S. 1, 11 (1978) (explaining that retrial after criminal charges are
reversed for legally insufficient evidence violates double jeopardy).
For these reasons—and based on the unique facts of this case and the
government’s failure to respond to Timbigamba’s argument regarding the proper
remedy—the court concludes that an order directing Timbigamba’s immediate
release under reasonable conditions of supervision is the appropriate measure to
enforce its order granting the habeas petition.
CONCLUSION
Timbigamba’s motion to enforce (doc. no. 8) is granted. Respondents are
ordered to release Timbigamba under reasonable conditions of supervision within
twenty-four hours. Respondents shall file a status report confirming their
compliance with this order within twenty-four hours of Timbigamba’s release.
SO ORDERED.
_________________________
Landya McCafferty
United States District Judge
May 26, 2026
cc: Counsel of Record
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