Oliveira Dos Reis v. Vitello

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

CIVIL ACTION No. 25-10497-RGS

PABLO OLIVERA DOS REIS, Petitioner

v.

CALEB VITELLO, Acting Director, United States Immigration

and Customs Enforcement;

PAMELA JO BONDI, Attorney General of the United States of America;

PATRICIA H. HYDE, Acting Field Office Director, Enforcement and

Removal Operations Boston Field Office, United States Immigration and

Customs Enforcement;

JOSEPH D. MCDONALD, JR., Sheriff, Plymouth Sheriff’s Office

April 8, 2025

STEARNS, D. J.

Petitioner Pablo Oliveira Dos Reis (Dos Reis) a Brazilian national who

has resided in the United States since 2019, filed this petition for habeas

corpus after an Immigration Judge (IJ) ordered him held without bail after

U.S. Immigration and Customs Enforcement (ICE) took him into custody.

At the time of his detention by ICE, Dos Reis faced a firearms conspiracy

charge in the courts of the Commonwealth. Initially, Dos Reis sought an

injunctive order compelling federal authorities to arrange his personal

transport from the federal detention facility where he is being held

(Plymouth Jail) to his pending state legal proceedings in the Malden District

Court. This issue became moot when the parties agreed to Dos Reis’s

appearance in the Malden court by ZOOM. Dos Reis then shifted his focus

to a request that this court overturn the finding of the IJ that he posed a risk

of flight if released on bond pending the outcome of the parallel criminal and

immigration proceedings.

BACKGROUND1

Olivera Dos Reis emigrated to the United States at age fifteen in

unexplained circumstances. He currently has pending applications for

asylum and for Special Immigrant Juvenile Status before the Department of

Justice and the Department of Homeland Security (DHS). Since arriving in

the United States Dos Reis has been enrolled in school and gainfully

employed. He has attended all his scheduled immigration hearings and had

no contact with law enforcement or Immigration Enforcement prior to his

current arrest.

In September of 2024, Dos Reis was a passenger in the rear seat of a

Honda Accord being driven by one Joao Vitor Dos Santos Goncalves

Pimenta. The driver of a second car approached the Honda and handed

Pimenta a bag containing an AR-15 semi-automatic pistol. Pimenta then

1 The following facts are those asserted in petitioner’s VERFIIED

PETITION FOR WRIT OF HABEAS CORPUS & HABEAS CORPUS AD

PROSEQUENDUM ET TESTIFICANDUM PURSUANT TO 28 U.S.C. § 2241.

See Dkt #1 at 2-6.

sold the gun to a party in a nearby third car. ATF agents interrupted the sale

causing Dos Reis to run from the scene. Malden Police (again in unexplained

circumstances) subsequently took Dos Reis into custody. Four of the five

suspects detained because of the incident were charged with the illegal sale

of a firearm. Dos Reis was charged with participating in a firearms

trafficking conspiracy and held without bail.

On November 25, 2024, the IJ held a custody redetermination hearing.

After reviewing the record evidence, she ruled that DHS had failed to

demonstrate by clear and convincing evidence that Dos Reis posed a present

danger to the community, she was “disinclined to believe” that Dos Reis

would abide by the orders of the court if released, given his “awareness of

the illegality of the conduct that occurred right before his eyes” and the fact

that he had “voluntarily connected himself with such dangerous and highly

illegal activities.” Dkt # 1-7 at 3-4. Accordingly, she found by a

preponderance of the evidence that DHS had established that Dos Reis posed

a risk of flight and refused to set a bond.

Dos Reis timely appealed the IJ’s decision to the Board of Immigration

Appeals (BIA) on November 27, 2024, where, as of this date, the appeal

remains pending. On March 12, 2025, DHS initiated removal proceedings

against Dos Reis.

DISCUSSION

Dos Reis now in effect asks this court to step into the shoes of the BIA

and reverse the IJ’s bail determination, apparently on grounds that the IJ’s

explanation of her decision is insufficiently fulsome in detail to satisfy due

process. DHS opposes the request, arguing that the issue is not ripe and

notwithstanding ripeness, a district court lacks jurisdiction to correct an IJ’s

alleged errors of law.

To survive a motion to dismiss under Fed. R. Civ. P. 12(b)(1), a plaintiff

bears the burden of establishing that subject-matter jurisdiction exists. See

Calderón-Serra v. Wilmington Trust Co., 715 F.3d 14, 17 (1st Cir. 2013).

However, “[w]hen a district court considers a Rule 12(b)(1) motion, it must

credit the plaintiff's well-pled factual allegations and draw all reasonable

inferences in the plaintiff's favor.” Merlonghi v. United States, 620 F.3d 50,

54 (1st Cir. 2010). “The district court may also ‘consider whatever evidence

has been submitted, such as the depositions and exhibits.’” Id. (quoting

Aversa v. United States, 99 F.3d 1200, 1210 (1st Cir. 1996)). DHS argues

with some force that Congress has eliminated judicial review of discretionary

custody determinations. See 8 U.S.C. § 1226(e). There is authority, however,

suggesting that a court may intervene where an immigration bail

determination is ultra vires or facially unconstitutional. See Hernandez-

Lara v. Lyons, 10 F.4th 19, 33 (1st Cir. 2021) (“But § 1226(e) does not

preclude “challenges [to] the statutory framework that permits [the alien’s]

detention without bail”, citing Demore v. Kim, 538 U.S. 510, 517 (2003).

This is not however that exceptional case. While a noncitizen like Dos

Reis is entitled to due process, his argument is not that he has been denied

due process but that he has not received enough of it with the outcome he

believes he is entitled to. At most he is arguing that the IJ’s cursory finding

that he presents a flight risk was based on insufficient (or insufficiently

articulated) evidence. This is precisely the type of alleged error committed

to review by the BIA (and in most circumstances ultimately by the Federal

Circuit Court of Appeals). This court is not in a position at this moment to

say that Dos Reis’s appeal to the BIA is “futile” or “wasteful.” Given the

extraordinary case load of the BIA, the result may not be as expeditious as

one might wish, but neither is it so “prolonged” as to rise to a violation of due

process. See Reid v. Donelan, 17 F.4th 1, 9 (1st Cir. 2021). Consequently, the

request that this court intervene in the proceedings is DENIED without

prejudice.2

2 Dos Reis’s fear appears to be that he will be removed by DHS prior to

any resolution by the BIA of his appeal. It is this court’s understanding that

an appeal timely file (as Dos Reis’s was) with the BIA stays any removal until

a decision is rendered. As this court, however, has not fully studied this issue

it will continue in place its prior order requiring defendants to give the court

ORDER

For the foregoing reasons, the motion to dismiss is DENIED. This

matter is STAYED pending the decisions of the state courts and the BIA.

SO ORDERED.

Richard G. Stearns_____________

UNITED STATES DISTRICT JUDGE

48 hours advance notice of any planned removal of Dos Reis to give it an

opportunity to make any further rulings it deems appropriate.