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Case 3:26-cv-01941-JKM Document10 Filed 10/14/26 Page 1 of 7

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

EVRARD DESMET NZOBAZOLO ‘ No. 3:26cv1941
MATONDO, :
Petitioner i (Judge Munley)
V. :

CRAIG A. LOWE, in his official
capacity as the Warden of Pike
County Correctional Facility; BRIAN
MCSHANE, in his official capacity as :
Acting Field Office Director of the
Philadelphia Field Office of U.S.
Immigration and Customs
Enforcement, Enforcement and
Removal Operations; MARKWAYNE
MULLIN, in his official capacity as
Secretary of the Department of :
Homeland Security; TODD BLANCHE,:
in his official capacity as Acting
Attorney General of the United
States; and DAVID VENTURELLA, in
his official capacity as Senior Official :
Performing the Duties of the Director :
of U.S. Immigration and Customs
Enforcement,

Respondents

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MEMORANDUM ORDER

Before the court is a petition for writ of habeas corpus filed by Petitioner

Evrard Desmet Nzobazolo Matondo, pursuant to 28 U.S.C. § 2241.1 (Doc. 1).

' Federal district courts are authorized to grant a writ of habeas corpus under 28 U.S.C. § 2241
where the petitioner is detained “in violation of the Constitution or laws or treaties of the United
States.” 28 U.S.C. § 2241(c)(3). Petitioner filed the instant petition while detained at Pike
County Correctional Facility. (Doc. 1 6). Petitioner asserts that his continued detention

Case 3:26-cv-01941-JKM Document10 Filed 10/14/26 Page 2of7

Petitioner is a native and citizen of the Republic of Congo in the custody of
the Department of Homeland Security (“DHS”), Immigration and Customs
Enforcement (“ICE”) at Pike County Correctional Facility, in Lords Valley,
Pennsylvania. Id. J] 1, 6, 22. His petition asserts that he is detained under a
section of the Immigration and Naturalization Act that does not apply to him ina
manner that violates his Fifth Amendment right to procedural and substantive
due process. Id. at 18, 21-27. He also argues DHS’s detention policy is
arbitrary, capricious, and contrary to law, in violation of the Administrative
Procedure Act. Id. at 19. After review of the record, the petition will be granted.
Nzobazolo Matondo will be released.

According to the petition, Nzobazolo Matondo is 31 years old. Id. 722. On
July 30, 2023, U.S. Border Patrol agents in San Ysidro, California encountered
petitioner “attempting to enter the United States without inspection or admission.”
(Doc. 7-2 at 3). He was released from federal custody by Order of Recognizance
and issued a Notice to Appear which was ultimately disposed of for failure to
prosecute. Id. On December 15, 2023, petitioner filed an application for asylum.

On July 7, 2025, ICE encountered petitioner when he appeared for a

scheduled Alternative to Detention Program (ATD) appointment in Philadelphia.

violates the Immigration and Nationality Act, the Administrative Procedure Act, and the Due
Process Clause under the Fifth Amendment. Id. at 18-27. Thus, the court has habeas
jurisdiction over the petition. Rumsfeld v. Padilla, 542 U.S. 426, 443 (2004).

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Id. He was placed under arrest and issued a new Notice to Appear, charging him
with violating 8 U.S.C. § 1182(a)(6)(A)(i) as being present in the United States
without being admitted or paroled. Id.; Doc. 7-3. He has been in detention
without a bond hearing since that time. (Doc. 1 J] 2, 28). On November 19,
2025, an IJ denied petitioner’s application for asylum and ordered his removal.
(Doc. 7-6). The removal order is not administratively final.

The parties briefed their respective arguments as to which statute controls
petitioner’s custody. (See Doc. 1 (petitioner arguing his custody is governed by 8
U.S.C. § 1226(a)); Doc. 7 (respondent? arguing petitioner’s custody is governed
by § 1225(b)(2)).

For petitioners such as Nzobazolo Matondo, who do not have a criminal
record, and “were not detained at the border,” the Third Circuit recently resolved

this dispute in Buele Morocho v. Warden Philadelphia FDC, F.4th _—_, 2026

WL 2546223, at *7 (3d Cir. Aug. 28, 2026). The statute that governs petitioner's
pre-removal custody is § 1226(a). And because § 1226(a) and its implementing

regulations “require[ ]” a bond hearing, Borbot v. Warden Hudson Cnty. Corr.

? Although petitioner named five respondents in his petition, (see Doc. 1 at 1), typically “the
[only] proper respondent’ to a petition for writ of habeas corpus “is the warden of the facility
where the prisoner is being held.” Rumsfeld v. Padilla, 542 U.S. 426, 435 (2004). The
government argues the only proper respondent here is Craig Lowe, Warden of the Pike County
Correctional Facility. (Doc. 7 at 2 n.1). The court agrees with this argument. As such, the
court will dismiss the other respondents as improper.

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Facility, 906 F.3d 274, 278 (3d Cir. 2018), respondent is violating Petitioner’s
rights under the INA and its implementing regulations by not providing one.

As to petitioner's due process rights, like the Buele Morocho court, this

court considers the Eldridge® factors to determine “whether detention without
bond of noncitizens who have lived in the United States for extended periods of
time with no criminal records violates due process.” ss F.4th at_——, 2026 WL
2546223, at *9-10. As to the first factor, “the private interest that will be affected

by the official action,” the Buele Morocho court held that “mandatory detention

implicates [the] ‘constitutionally protected interest in avoiding physical restraint.”

Id. at *9 (quoting Eldridge, 424 U.S. at 335; Kansas v. Hendricks, 521 U.S. 346,

356 (1997) (citations omitted)). And so, it does here.

The second factor concerns “the risk of an erroneous deprivation of such
interest through the procedures used, and the probable value, if any, of additional
or substitute procedural safeguards.” Id. (quoting Eldridge, 424 U.S. at 335).

The Buele Morocho court found such risk exists in situations like here, because

of “the absence of an opportunity for a neutral decisionmaker to assess” the
dangerousness or flight risk of a defendant. Id.
As to the third factor, “the government’s interest, including the function

involved and the fiscal and administrative burdens that the additional or

3 Mathews v. Eldridge, 424 U.S. 319, 335 (1976).
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substitute procedural requirement would entail,” id. (quoting Eldridge, 424 U.S. at

335), the court held that the “legitimate interest in preventing the release of

dangerous noncitizens and those who might fail to appear at future hearings

does not outweigh the other two factors here, particularly when [the] non-criminal

individuals were detained absent evidence that either is dangerous or a flight
risk, and the Government has not argued that bond hearings are unduly
burdensome.” Id. at *10 (citation modified).

On this third factor and the ultimate disposition of this habeas petition,
petitioner has no criminal convictions, (Doc. 1 J 35), and his previous Notice to
Appear was dismissed for failure to prosecute. (Doc. 7-2 at 3). There is no
evidence that petitioner resisted ICE officers or was uncooperative in their
enforcement efforts. There is also no evidence that he failed to appear at any
immigration hearings in the past.

Weighing these factors, the failure to provide petitioner with a bond or
custody redetermination hearing violated his right to procedural due process.

Buele Morocho, 2026 WL 2546223, at *10. Therefore, his petition will be

granted. Habeas courts “have the power to order the conditional release of an

individual unlawfully detained—though release need not be the exclusive remedy

and is not the appropriate one in every case in which the writ is granted.”

Boumediene v. Bush, 553 U.S. 723, 779 (2008). In this case, only immediate

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release will remedy the due process violation that Nzobazolo Matondo has
experienced.

Consequently, it is hereby ORDERED that:

1) Brian McShane, Markwayne Mullin, Todd Blanche, and David
Venturella are dismissed from this action as improper respondents;

2) Evrard Desmet Nzobazolo Matondo’s petition for writ of habeas
corpus, (Doc. 1), is GRANTED;

3) |The government shall immediately release petitioner from its custody;

4) Onor before October 16, 2026, the government shall file a
declaration or affidavit pursuant to 28 U.S.C. § 1746 confirming that petitioner
has been released;

5) The government shall release petitioner under the same conditions
that existed prior to his detention, including release: (1) in an area where the
petitioner resides or where he has access to means of interstate transportation;
(2) without the imposition of additional conditions; (3) with all clothing and
outerwear worn at the time of the detention or other appropriate attire; and (4)
with all personal property, including, but not limited to, any driver's license,
passport, immigration documents, currency, or cell phone that was seized at the

time of detention and that is currently in their custody, possession, or control,

Case 3:26-cv-01941-JKM Document10 Filed 10/14/26 Page/7of7

whether maintained directly by respondents or by any contracted or affiliated
facility;

6) |The government is temporarily enjoined from re-arresting petitioner
for a period of 7 days to ensure that this habeas remedy is effective;

7) The Clerk of Court is directed to enter judgment in accordance with
this memorandum order; and

8) The Clerk of Court is directed to CLOSE this case.*

Date: yh #3 6b BY THE COURT:

JUDGE JULIA K. MUNL
nited States Distric

4 Petitioner requests attorney’s fees pursuant to 28 U.S.C. § 2412. (Doc. 1 at 29). A petition
for writ of habeas corpus challenging immigration detention under 28 U.S.C. § 2241 is a civil
action for purposes of the Equal Access to Justice Act, 28 U.S.C. § 2412(d)(1)(A), and this
statute unambiguously applies here. Michelin v. Warden Moshannon Valley Corr. Ctr., 169
F.4th 418, 428, 432 (3d Cir. 2026). Petitioner may file a motion for costs and fees within 30
days of the entry of judgment. 28 U.S.C. § 2412(d)(1)(B); Villa Hernandez v. Kunes, No. 1:25-
CV-01847, 2026 WL 411726, at *7 (M.D. Pa. Feb. 13, 2026) (Wilson, J.); see FED. R. Civ. P.
54(d).

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