Case Name in Immigration Case - Unavailable

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
ERICK DALVI ACEVEDO TERRERO,
Petitioner,
– against –
JOHN TSOUKARIS, NJ Director,
Enforcement & Removal Operations,
U.S. Immigration and Customs
Enforcement, TODD LYONS, Acting
Director, U.S. Immigration and
Customs Enforcement, KRISTI NOEM,
Secretary of the U.S. Department of
Homeland Security, PAMELA BONDI,
Attorney General of the United States,
LUIS SOTO, Warden, Delaney Hall,
Newark, NJ,
Respondents.
MEMORANDUM & ORDER
26-cv-00869 (NCM)
NATASHA C. MERLE, United States District Judge:
On February 4, 2026, U.S. Immigration and Customs Enforcement (“ICE”)
arrested and detained petitioner Erick Dalvi Acevedo Terrero outside of a police precinct
in Suffolk County, New York. Decl. of Craig Limoncelli (“Limoncelli Decl.”) ¶¶ 5–7, ECF
No. 13. On February 12, 2026, petitioner sought a writ of habeas corpus from this Court
under 28 U.S.C. § 2241. Pet. ¶ 1, ECF No. 1. On February 19, 2026, the Court held oral
argument and granted the petition. This opinion sets forth the Court’s reasoning.
BACKGROUND
Petitioner is a citizen of the Dominican Republic. Limoncelli Decl. ¶ 1. On August
30, 2019, petitioner was admitted to the United States at John F. Kennedy Airport as a K1
Non-Immigrant Visitor with authorization to remain in the United States until November
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27, 2019. Limoncelli Decl. ¶ 3. Petitioner did not secure authorization to remain in the
United States past November 27, 2019. Limoncelli Decl. ¶ 4.
On February 4, 2026 at 10:30 AM, petitioner was arrested by the Suffolk County
Police Department (“SCPD”) on state law charges of Promoting Prostitution in the Third
Degree, a class D felony, and Conspiracy in the Fifth Degree, a class A misdemeanor.
Limoncelli Decl. ¶ 4; N.Y.P.L. §§ 105.05, 230.25. At some point, “SCPD turned custody of
the [p]etitioner over to the Federal Bureau of Investigation for further investigation and
upon completion of that investigation, the [p]etitioner was referred to ICE which then
conducted records checks which revealed that [p]etitioner ha[d] no lawful status in the
United States.” Limoncelli Decl. ¶ 6.
At 6:40 PM, ICE Officer “J. Diaz” made a custody determination that, pursuant to
Section 236 of the Immigration and Nationality Act (“INA”) (8 U.S.C. § 1226), petitioner
would be “Detained by the Department of Homeland Security” pending a final
administrative determination in petitioner’s immigration case. See I-286 Notice of
Custody Determination Form (“I-286 Form”), ECF No. 14-1 at 3.1 That same day, “outside
of the SCPD 4th Precinct, ICE executed a Form I-200, Warrant for Arrest of Alien, and
arrested the [p]etitioner.” Limoncelli Decl. ¶ 7. The arrest occurred at 7:15 PM. See “INA
§ 236(a) Initial Custody Determination” Form (“ICD Form”) 1, ECF No. 14-1.
Following petitioner’s arrest, ICE transported petitioner to the Central Islip Hold
Room (“CIHR”) and booked him into the facility at 7:25 PM. Limoncelli Decl. ¶ 7. ICE
1 Throughout this Order, page numbers for docket filings refer to the page numbers
assigned in ECF filing headers.
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booked petitioner out of CIHR at 7:50 PM and transported him to the Nassau County
Correctional Center (“NCCC”), where he was booked in at 8:35 PM. Limoncelli Decl. ¶ 11.
At 8:05 PM, while petitioner was in transit between the CIHR and the NCCC, an
immigration officer completed a form titled “INA § 236(a) Initial Custody
Determination.” See ICD Form 1–2. The form explains that “[p]ursuant to a settlement
agreement reached in Velesaca v. Decker, No. 20-cv-01803 (S.D.N.Y.), [immigration]
[o]fficers at the New York City Field Office must utilize this form as part of the initial
individualized custody determination under [8 U.S.C. § 1226(a)].” ICD Form 1. The form
notes that “[d]etention under [8 U.S.C. § 1226(a)] is discretionary, and [immigration]
officers must make individualized determinations in each case.” ICD Form 1.
At an unstated time on February 4, 2026, ICE allegedly “served [p]etitioner with a
Form I-862 Notice to Appear (“NTA”) charging him with removability” for overstaying
his visa. Limoncelli Decl. ¶ 8. Respondents also allege that on February 4, 2026, “DHS
filed the NTA with the Executive Office for Immigration Review (“EOIR”) . . . ,
commencing removal proceedings.” Limoncelli Decl. ¶ 9. During the instant litigation, the
Court ordered respondents to submit “any records, documents, or other information in
petitioner’s immigration file, as well as any underlying records relied upon in [their]
submission not yet filed by petitioner.” See Scheduling Order 4, ECF No. 8. Respondents
submitted twenty-nine pages of records, but failed to produce an NTA. See Exhibits, ECF
No. 14-1.
On February 6, 2026, ICE booked petitioner out of the NCCC and transported him
to the Delaney Hall Detention Facility in Newark, NJ. Limoncelli Decl. ¶ 12. On
February 13, 2026, petitioner was transferred from Delaney Hall Detention Facility to the
Metropolitan Detention Center (“MDC”) in Brooklyn, NY. Limoncelli Decl. ¶ 13. ICE
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represents that it continued to hold petitioner in detention under 8 U.S.C. § 1226(a).
Limoncelli Decl. ¶¶ 13, 15.
On February 12, 2026, petitioner sought a writ of habeas corpus from this Court
under 28 U.S.C. § 2241. Pet. ¶ 1. On February 19, 2026, the Court held oral argument and
granted the petition. See Minute Entry dated Feb. 19, 2026.
DISCUSSION
Section 1226(a) states that “[o]n a warrant issued by the Attorney General, an alien
may be arrested and detained pending a decision on whether the alien is to be removed
from the United States. . . . [P]ending such decision, the Attorney General . . . may
continue to detain the arrested alien [or] may release the alien on . . . bond of at least
$1,500 . . . [or] conditional parole.” 8 U.S.C. § 1226(a). The Department of Homeland
Security has issued regulations implementing this statutory provision. See 8 C.F.R. §
1236.1. The language of § 1226(a) “undoubtedly vests broad authority to arrest and
detain[,] but due process must account for the wide discretion [that the statute affords]
to arrest any person in the United States suspected of being removable.” Gopie v. Lyons,
No. 25-cv-05229, 2025 WL 3167130, at *2 (E.D.N.Y. Nov. 13, 2025) (quoting Lopez
Benitez v. Francis, No. 25-cv-05937, 2025 WL 2371588, at *10 (S.D.N.Y. Aug. 13, 2025)).2
“[B]efore the Government may exercise such discretion to detain a person, Section
1226(a) and 8 C.F.R. 1236.1(c)(8) require ICE officials to make an individualized custody
determination.” Id. (quoting Lopez, 2025 WL 2371588, at *10). In conducting this
individualized custody determination, “ICE must allow the noncitizen to demonstrate to
the satisfaction of the officer that release would not pose a danger to property or persons,
2 Throughout this Order, the Court omits all internal quotation marks, footnotes,
and citations, and adopts all alterations, unless otherwise indicated.
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and that the noncitizen is likely to appear for any future proceeding.” Id. (quoting Kelly
v. Almodovar, No. 25-cv-06448, 2025 WL 2381591, at *3 (S.D.N.Y. Aug. 15, 2025)); see
also ICD Form 1 (requiring officer to memorialize in writing whether “the individual has
established that he/she does not pose a danger to persons or property”).
The Court finds that in the instant case, respondents failed to make a lawful
individualized custody determination. Specifically, respondents made the determination
that petitioner would be detained based on his “danger to property or persons” without
first giving petitioner any opportunity to “demonstrate to the satisfaction of the officer
that [his] release would not pose a danger.” 8 C.F.R. § 1236.1(c)(8); see Kelly, 2025 WL
2381591, at *3. Evidence in the record shows that Officer Diaz made the determination
that petitioner would be detained pending resolution of his immigration case at 6:40 PM,
I-286 Form at 1, but ICE officers did not actually arrest petitioner outside of the Suffolk
Police precinct building until 7:15 PM, ICD Form at 1. Because of the chronology of these
events, it was not possible that Officer Diaz spoke to or communicated with petitioner in
any respect before or while making the decision to keep petitioner detained indefinitely.
Moreover, respondents have presented no evidence that Diaz somehow gave petitioner
the necessary opportunity to demonstrate his lack of dangerousness at another time prior
to 6:40 PM. Accordingly, the Court finds that ICE made the custody determination
without “allow[ing] the noncitizen to demonstrate to the satisfaction of the officer that . . .
release would not pose a danger to property or persons.” Kelly, 2025 WL 2381591, at *3.
Indeed, there was no avenue for “the individual [to have] established that he/she does not
pose a danger to persons or property,” ICF Form 1, because petitioner was not given the
chance to so establish prior to or at the time of the 6:40 PM determination that petitioner
would be indefinitely detained.
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Custody determinations made under § 1226(a) without any opportunity for the
detainee to demonstrate his suitability for release are not lawful even if they were based
on information particular to the detainee. For example, “the mere ‘review’ of a RAP sheet
is not tantamount to an individualized assessment of a suspect’s flight risk or
dangerousness.” Kelly, 2025 WL 2381591, at *3. Rather, “[i]f ICE wishes to detain a
noncitizen under the detention authority provided by 8 U.S.C. § 1226(a), ICE must allow
the noncitizen to demonstrate to the satisfaction of the officer that release would not pose
a danger.” Id.
In the instant case, ICE appears to have, at some point, considered petitioner’s
criminal history. At 8:05 PM—well after Officer Diaz made the decision to detain
petitioner at 6:40 PM and well after officers arrested petitioner at 7:15 PM—an
unspecified ICE officer completed the ICD Form, checked “no” in response to the question
“has the individual established that he/she does not pose a danger to persons or
property?,” and wrote in the “discussion” section below that “[o]n November 24, 2021,
subject was arrested by SP Revere for unlicensed operation of a motor vehicle. On
February 4, 2026, subject was arrested by Suffolk County Police Department and charged
with Promote Prost-3: Two or More Prostitutes/Travel.” ICD Form 1. However, none of
the contents of the ICD Form suggest that petitioner was given an opportunity to be heard
prior to or at the time of the 6:40 PM custody determination.
Respondents argue that regardless of the lawfulness of petitioner’s detention, the
Court cannot grant petitioner relief because he has not exhausted his administative
remedies by seeking a bond hearing before an immigration judge under § 1226(a). See
Mem. in Opp’n (“Opp’n”) 3–4, ECF No. 12. The Court disagrees. “[A] bond hearing before
an immigration judge is a ‘re-determination’ of custody—it assumes that a valid custody
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determination was made in the first instance.” Gopie, 2025 WL 3167130, at *3. This is not
a case where ICE followed the lawful procedures to arrive at a decision regarding
dangerousness and petitioner simply seeks a second look at the question of whether or
not he is a danger. Rather, because petitioner was never given the opportunity to
demonstrate his lack of dangerousness before or at the time of the custody determination,
it is not necessary that petitioner seek a “a re-determination of custody” by an
immigration judge prior to seeking habeas relief from this Court. See id.; Kelly, 2025 WL
2381591, at *3.
To remedy the unlawful circumstances of petitioner’s detention, the Court finds
that petitioner is entitled to immediate release. “[A]n individual detained pursuant to
Section 1226(a) who identifies some defect in the process governing her detention can
raise that defect in a habeas action seeking release.” Gopie, 2025 WL 3167130, at *2
(quoting Salgado v. Francis, No. 25-cv-06524, 2025 WL 2806757, at *8 (S.D.N.Y. Oct. 1,
2025)). A writ of habeas corpus “is at its core a remedy for unlawful executive detention.
The typical remedy for such detention is, of course, release.” Munaf v. Green, 553 U.S.
674, 693 (2008). Accordingly, the Court deems immediate petitioner’s release to be the
appropriate remedy. See Gopie, 2025 WL 3167130, at *3; Kelly, 2025 WL 2381591, at *3.
CONCLUSION
For the foregoing reasons, the Court GRANTED petitioner’s writ of habeas corpus
under 28 U.S.C. § 2241.
The Court ORDERED petitioner’s immediate release from custody on February 19,
2026. See Minute Entry dated Feb. 19, 2026. The Court further ORDERED that the
government “shall not re-detain petitioner pursuant to 8 U.S.C. § 1226(a) in a manner
that contravenes any regulation, statute, or aspect of petitioner's due process rights.” See
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Minute Entry dated Feb. 19, 2026. On February 20, 2026, respondents filed a letter on
the docket certifying that petitioner had been released from detention. See Ltr. Reporting
Release from Detention, ECF No. 18.
Should petitioner seek an award of reasonable fees and costs pursuant to the Equal
Access to Justice Act, he may do so by filing a letter application on the docket within thirty
days of this Order.
The Clerk of Court is respectfully directed to enter judgment consistent with the
Order and close the case.
SO ORDERED.
/s/ Natasha C. Merle
NATASHA C. MERLE
United States District Judge
Dated: March 4, 2026
Brooklyn, New York
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