Perez Flores v. Bondi

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

MARCO L. PEREZ FLORES,

Petitioner,

25-CV-306-LJV

v. DECISION & ORDER

PAMELA BONDI et al.,

Respondents.

The petitioner, Marco L. Perez Flores, has been detained in the custody of the

United States Department of Homeland Security, Immigration and Customs

Enforcement (“ICE”) for approximately 17 months. Docket Item 1. On April 7, 2025,

Perez Flores filed a petition for a writ of habeas corpus under 28 U.S.C. § 2241,

challenging the validity of his detention at the Buffalo Federal Detention Facility

(“BFDF”) in Batavia, New York. Docket Item 1. The government responded, Docket

Item 15, and Perez Flores replied, Docket Item 17.

For the reasons that follow, this Court grants Perez Flores’s petition in part.

BACKGROUND1

Perez Flores is a citizen and native of Honduras. See Docket Item 15 at ¶ 3;

Docket Item 15-2 at 17. In October 2001, he entered the United States illegally and

apparently has lived in this country ever since. See id. at 2; Docket Item 15-2 at 17.

1 The following facts are taken from Perez Flores’s petition, Docket Item 1, and

the government’s response and its attached exhibits, Docket Items 15, 15-1, 15-2, 15-3,

15-4, 15-5, and 15-6, and are essentially undisputed. The Court also takes judicial

In October 2023, Perez Flores was convicted of sexual abuse in the first degree

in violation of New York Penal Law § 130.65(1) and sentenced to 2 years of

incarceration and 10 years of post-release supervision.2 See Docket Item 1 at 10;

Docket Item 15-2 at 77. In December 2023, “ICE instituted . . . removal proceedings

against Perez Flores.” Docket Item 15-1 at ¶ 14; see Docket Item 15-2 at 5-8 (copy of

notice to appear issued by ICE to Perez Flores). More specifically, ICE issued Perez

Flores a notice to appear charging that he was removable under subsections

212(a)(6)(A)(i) and 212(a)(2)(A)(i)(I) of the Immigration and Nationality Act (“INA”)

because he was present in the United States without legal status and because he

committed a crime of moral turpitude. See Docket Item 15-2 at 8; Docket Item 1 at 3.

On January 25, 2024, Perez Flores completed his sentence of incarceration and

was “taken into ICE custody.” Docket Item 15-1 at ¶ 15; see Docket Item 1 at 10. He

was then “issued a Notice of Custody Determination” stating “that he would be detained

pending a final administrative determination in his immigration proceedings.” See

Docket Item 15-1 at ¶ 15. On July 18, 2024, an immigration judge ordered Perez Flores

removed from the United States, denying his various applications for immigration relief.3

notice of Perez Flores’s immigration proceedings. See Pina Morocho v. Mayorkas,

2023 WL 1995283, at *3-4 (S.D.N.Y. Jan. 25, 2023) (taking judicial notice of petitioner’s

immigration proceedings in considering petition). Throughout this decision and order,

page numbers in docket citations refer to ECF pagination.

2 The government says that in addition to that 2023 conviction, Perez Flores has

been convicted of driving under the influence and disorderly conduct in 2004 and 2013,

respectively, and that he was arrested for assault and family neglect in 2015. Docket

Item 15-1 at ¶¶ 8-10. Perez Flores does not refer to any such arrests or convictions in

his petition. See Docket Item 1.

3 Perez Flores also requested a custody redetermination. See Docket Item 15-2

at 63-64. But the immigration judge denied this request, finding that ICE was required

to detain Perez Flores under 8 U.S.C. § 1182(a)(2) and 8 U.S.C. § 1226(c)(1) because

Docket Item 15-1 at ¶¶ 15-17; see Docket Item 15-2 at 17-53; Docket Item 1 at 10.

Perez Flores appealed the immigration judge’s decision to the Board of Immigration

Appeals (“BIA”), which dismissed his appeal on December 30, 2024.4 Docket Item 15-1

at ¶ 24; see Docket Item 15-2 at 74-78 (copy of BIA’s decision); Docket Item 1 at 10.

On January 25, 2025, Perez Flores filed a petition for review in the United States

Court of Appeals for the Second Circuit and moved for that court to stay his removal

pending its decision. See Docket Item 15-1 at ¶¶ 25-26; see also Perez Flores v. Bondi,

Case No. 25-195, Docket Item 2 (2d Cir. Jan. 27, 2025) (petition for review); id., Docket

Item 8 (2d Cir. Jan. 27, 2025) (motion for stay). The government opposed the motion,

which remains pending before the Second Circuit. See Docket Item 15-1 at ¶¶ 27-28;

Perez Flores, Case No. 25-195, Docket Item 22 (2d Cir. Feb. 20, 2025); id., Docket Item

30 (2d. Cir. May 19, 2025) (notice in response to Perez Flores’s inquiry confirming that

motion for stay of removal remains pending).

As Perez Flores’s immigration case wore on, he remained detained at BFDF,

where he has been held since he completed his criminal sentence. See Docket Item 1

he had committed a crime referred to in those sections. See Docket Item 15-2 at 63-64;

Docket Item 15-1 at ¶¶ 20-21.

4 As Perez Flores’s immigration case proceeded, he also sought to reopen his

criminal case. In April 2024, he moved for an extension of time to appeal his conviction,

and the New York State Supreme Court, Appellate Division, Second Department,

granted that motion three months later. Docket Item 1 at 10; see Docket Item 15-2 at

77. As far as this Court is aware, the Second Department has yet to rule on Perez

Flores’s appeal. And because his case was reopened, the BIA found that Perez

Flores’s criminal conviction was “not final for immigration purposes” and that he thus

was “not removable as charged under section 212(a)(2)(A)(i)(I) of the INA.” Docket

Item 15-2 at 77. The BIA nonetheless affirmed the immigration judge’s determination

that Perez Flores was “removable under section 212(a)(6)(A)(i)” for being present in the

United States without having been admitted or paroled. Id.

at 3. On January 30 of this year, ICE informed Perez Flores that it “would be performing

a file custody review” in March. Docket Item 15-1 at ¶ 29. On March 12, 2025, ICE

“issued a Decision to Continue Detention, advising Perez Flores that his detention

would be continued because he m[ight] pose a danger to the community and pose a

significant risk of flight.” Id. at ¶ 30; Docket Item 15-2 at 80-82. ICE made this decision

“based on a review of [Perez Flores’s] file and consideration of any information [he had]

provided to ICE officials.” Docket Item 15-2 at 80. But in the time he has been held—

which is now almost a year and a half—he has never been afforded a bond hearing.

Docket Item 1 at 3; see also Docket Item 15-1 at ¶¶ 15, 21, 23, 29-30.

Shortly after ICE’s March 2025 decision, Perez Flores filed this petition alleging

that his “ongoing detention violates the Due Process Clause of the Fifth Amendment.”

Docket Item 1 at 14 (bold and some capitalization omitted). The parties then briefed the

petition as described above. See Docket Items 15 and 17.

DISCUSSION

28 U.S.C. § 2241 “authorizes a district court to grant a writ of habeas corpus

whenever a petitioner is ‘in custody in violation of the Constitution or laws or treaties of

the United States.’” Wang v. Ashcroft, 320 F.3d 130, 140 (2d Cir. 2003) (quoting 28

U.S.C. § 2241(c)(3)). Perez Flores alleges that his continued detention violates his right

to procedural due process under the Constitution and therefore asks this Court to order

his immediate release (and enjoin the government “from unlawfully detaining [him] any

further”). Docket Item 1 at 14-15. “In the alternative,” Perez Flores asks this Court to

order the government “to provide [him] with an individualized bond hearing before a

neutral arbiter at which [the government] must bear the burden of establishing by clear

and convincing evidence that [his] continued detention is justified.” Id. at 15.

The government argues that this Court should find that Perez Flores is detained

under 8 U.S.C. § 1231 and, accordingly, that his petition should be denied under

Zadvydas v. Davis, 533 U.S. 678 (2001). Docket Item 15-7 at 10-18; see Zadvydas,

533 U.S. at 695 (holding that it is “presumptively reasonable” for the government to

detain noncitizens under section 1231 for a six-month period). But the government

concedes that if this Court finds that Perez Flores is detained under 8 U.S.C. § 1226

rather than section 1231, the Second Circuit’s decision in Black v. Decker, 103 F.4th

133 (2d Cir. 2024), controls and “would likely lead this Court to order that [Perez Flores]

receive a bond hearing.” Docket Item 15-7 at 18-20.

This Court therefore begins by examining the statutory basis for Perez Flores’s

detention.

I. STATUTORY BASIS FOR DETENTION

The government’s position here is rooted in its interpretation of the language of

section 1231 and the impact of the government’s forbearance policy with the Second

Circuit. See Docket Item 15-7 at 6. The government says that “[a]lthough [it] has

previously chosen in some cases not to raise its longstanding disagreement with this

Court regarding the [forbearance policy], the time has come for the government to again

try to sway the Court to its point of view.” Id. (citation and internal quotation marks

omitted). This Court remains unpersuaded.

“Broadly speaking, section 1226 governs the detention of immigrants who are not

immediately deportable.” Hechavarria v. Sessions, 891 F.3d 49, 57 (2d Cir. 2018), as

amended (May 22, 2018). Section 1231(a), on the other hand, applies to those

noncitizens who have been determined to be removable. Id. at 54-55. That section

provides for a “removal period,” which it defines as the 90 days “following an order of

removal during which ‘the Attorney General shall remove the [noncitizen].’” Id. at 54

(quoting 8 U.S.C. § 1231(a)(1)(A)). Under the statute’s explicit terms, that period begins

“on the latest” of three possible dates:

(i) The date the order of removal becomes administratively final.

(ii) If the removal order is judicially reviewed and if a court orders a stay of

the removal of the [noncitizen], the date of the court’s final order.

(iii) If the [noncitizen] is detained or confined (except under an immigration

process), the date the [noncitizen] is released from detention or

confinement.

8 U.S.C. § 1231(a)(1)(B); see also Hechavarria, 891 F.3d at 54-55.

In Hechavarria, the Second Circuit rejected the government’s argument that any

noncitizen subject to an “administratively final” order of removal was detained under

section 1231, rather than section 1226, even if that noncitizen had subsequently been

granted a stay of removal. Id. at 54-56. The court held that the government’s position

could not be squared with section 1231’s “structure and logic.” Id. at 55. More

specifically, the court wrote:

The removal period—repeatedly described as a default 90-day period

throughout the section—is the period of time during which the “Attorney

General shall remove” the immigrant. 8 U.S.C. § 1231. Put simply, [s]ection

1231 addresses the logistics of removal for immigrants who have been

“ordered removed.” Id. Generally speaking, [s]ection 1231 assumes that

the immigrant’s removal is both imminent and certain. The definition of the

removal period is dependent upon the assumption that no substantive

impediments remain to the immigrant’s removal.

Hechavarria, 891 F.3d 49, 55 (2d Cir. 2018) (footnote omitted).

Hechavarria thus made clear that “[s]ection 1231 does not govern the detention

of immigrants whose removal has been stayed pending judicial review.” Id. at 56. The

question here is whether a request for a stay, in the context of the government’s

forbearance policy with the Second Circuit, is the equivalent of a stay for purposes of

section 1231(a)(1)(B). See Docket Item 15-7 at 10-16.

Under the forbearance policy, the government will not remove any noncitizen

who has requested a stay of removal with a petition for review of an immigration order

of removal unless a government motion opposing the stay is granted by the court or the

noncitizen’s stay motion is otherwise denied. See D’Alessandro v. United States, 2024

WL 3759759, at *3 (W.D.N.Y. Aug. 12, 2024) (citing In re Immigr. Pets. for Review

Pending in U.S. Ct. of Appeals for Second Cir., 702 F.3d 160, 162 (2d Cir. 2012)).

While “[t]he [g]overnment may still seek to remove a noncitizen protected by the policy,

. . . it must first ‘notify both the [Second Circuit] and [the p]etitioner at least 21 days

before removing [the p]etitioner,’ which offers the [c]ircuit sufficient notice to adjudicate

the stay motion.” Villatoro v. Joyce, 2024 WL 68533, at *3 (S.D.N.Y. Jan. 5, 2024)

(quoting In re Immigr. Pets., 702 F.3d at 161-62).

This Court previously has held that a noncitizen’s request for a stay and a

pending petition for review in the Second Circuit, when coupled with the government’s

forbearance policy, constitutes a “substantive impediment” to removal under

Hechavarria. See, e.g., Sankara v. Whitaker, 2019 WL 266462, at *4 (W.D.N.Y. Jan.

18, 2019). The Second Circuit has not yet squarely addressed this question. But it has

noted that “[w]hile a petition is pending . . . , the [g]overnment’s forbearance policy

assures that the filing of a motion to stay removal . . . will suffice to prevent removal,” at

least until the government informs the court otherwise, at which point the court can

“decide the pending motion.” Efstathiadis v. Holder, 752 F.3d 591, 599 n.5 (2d Cir.

2014), certified question answered, 317 Conn. 482, 119 A.3d 522 (2015). So in light of

that “substantive impediment” to removal, this Court has held that petitioners with

pending motions for stays, like those whose motions have been granted, are detained

under section 1226, not section 1231.

The government contests this logic. In its view, the Second Circuit’s ruling in

Hechavarria was limited to the effect of court-ordered stays on the running of the

removal period under section 1231, a question resolved by the “unambiguous language”

of that statute. See Docket Item 15-7 at 13-14. And it further argues that the court’s

statement that the removal period depends on the existence of “substantive

impediments” to removal was mere dicta that has no basis in the statutory language.

See id. Moreover, the government says that even if the “substantive impediment”

language were controlling, the forbearance policy constitutes no such hurdle: Under

that policy, the government is simply “voluntarily deciding not to remove a[ noncitizen],

and, if it chooses to, the sole ‘impediment’ to removal is for [the government] to advise

the Second Circuit of removal.” Id. at 14.

This Court disagrees. First, it is true that in Hechavarria, the Second Circuit

noted that it “need not decide the contours of judicial review during detention pursuant

to the government’s forbearance policy in this [c]ircuit.” 891 F.3d at 54 n.3. So the

government is correct that the decision did not directly answer the question here.

Nonetheless, the government’s reading of Hechavarria is far too narrow. The Second

Circuit’s decision was based both on the “clear language” of section 1231 and on the

provision’s “structure and logic,” which—as explained above—made the start of the

removal period turn on the absence of “substantive impediments” to removal. See id. at

55.

And this Court sees no grounds to depart from that reasoning here. Even if the

Second Circuit’s language in Hechavarria is pure “dicta” as the government argues, this

Court nonetheless finds that dicta “persuasive.” See Howland v. Resteiner, 2007 WL

4299176, at *2 (E.D.N.Y. Dec. 5, 2007) (holding that while Second Circuit dicta was “not

binding,” it was “nevertheless more persuasive” than conflicting decisions from district

courts in another circuit). The “removal period” under the statute begins when the

noncitizen is ready to be removed, see Hechavarria, 891 F.3d at 55, and if the

noncitizen is not ready, there is no logical reason to distinguish between those who are

not ready because of a court-ordered stay and those who are not ready because of a

forbearance agreement that precludes the need for a court-ordered stay.

Second, while the government recasts the forbearance policy as nothing more

than its own choice and notes its ability to revoke that policy generally or in any

particular case, this Court sees no reason why that changes anything. Under “the

forbearance policy, the [g]overnment cannot remove” a noncitizen with a pending stay

of removal in a petition for review before the Second Circuit “unless (1) the [c]ircuit

denies [the noncitizen’s] stay motion or petition for review, or (2) the [g]overnment gives

notice to the [c]ircuit and waits [21] days.” Villatoro v. Joyce, 2024 WL 68533, at *4

(S.D.N.Y. Jan. 5, 2024). In Villatoro, the Southern District of New York rejected the

government’s claim that these requirements were “merely voluntary,” noting that “these

barriers are imposed by” the Second Circuit’s decision in In re Immigration Petitioners

and thus “‘temporar[ily] set[ ] aside . . . the source of the [g]overnment’s authority to

remove’—the hallmark of a stay.”5 Id. (alterations in original) (quoting Nken v. Holder,

556 U.S. 418, 429 (2009)).

This Court’s judgment is reinforced by the fact that, as the government concedes,

see Docket Item 15-7 at 14-15, 15 n.4, most courts in this circuit to have addressed the

issue have agreed that under the forbearance policy, requests for stays are equivalent

to stays for the purposes of section 1231(a)(1)(B). See, e.g., Ranchinskiy v. Barr, 422

F. Supp. 3d 789, 795-96 (W.D.N.Y. 2019) (Wolford, J.); Thomas v. Whitaker, 2019 WL

5 The government also argues that “[t]he regulations and ICE’s practices

demonstrate that the forbearance policy is not the equivalent of a stay.” Docket Item

15-7 at 15. Indeed, it says that 8 C.F.R. § 241.4(g)(i) defines the removal period in

language that “track[s]” that of section 1231 and “[t]he regulations contain no language

directing that the [Post-Order Custody Review] process” that ICE carries out under

Zadvydas “is affected by the forbearance [policy].” Docket Item 15-7 at 15. So

“[b]ecause ICE is the agency tasked with implementing and enforcing immigration laws,”

the government argues, “its determination should be given weight by this Court.” Id. at

15-16 (citing Loper Bright Enters. v. Raimondo, 603 U.S. 369, 402 (2024)).

In Hechavarria, the government similarly contended that the court “ought to

afford deference to its interpretation” under Chevron U.S.A., Inc. v. Nat. Res. Def.

Council, Inc., 467 U.S. 837 (1984). See Hechavarria, 891 F.3d at 55. But the Second

Circuit rejected that argument, finding that “the government’s interpretation on this point

is a litigation position, not an agency interpretation.” Id. The same is true here:

Although the government cites regulations, those regulations do not address the

specific question at issue. That is, section 241.4(g)(i) simply “track[s]” the language of

section 1231(a)(1)(B) and does not answer the question of whether the forbearance

policy and a motion for a stay are the equivalent of a court-ordered stay under the

statute and regulation. See 8 U.S.C. § 1231(a)(1)(B); 8 C.F.R. § 241.4(g)(I)(i). And the

government admits that “[t]he regulations contain no language” otherwise defining the

impact of the forbearance policy on the removal period. See Docket Item 15-7 at 15. In

any event, Loper Bright, which overruled Chevron, made clear that an agency’s

interpretation of a statute “‘cannot bind a court,’” although “it may be especially

informative ‘to the extent it rests on factual premises within [the agency’s] expertise.’”

Loper Bright, 602 U.S. at 402, 412 (alteration in original) (quoting Bureau of Alcohol,

Tobacco and Firearms v. Fed. Lab. Rels. Auth., 464 U.S. 89, 98 n.8 (1983)). Because

no such “factual premises” are implicated by the issue here, the Court declines to give

the government’s interpretation any special deference.

1641251, at *3 (W.D.N.Y. Apr. 16, 2019) (Geraci, C.J.); Alexandre v. Decker, 2019 WL

1407353, at *5 (S.D.N.Y. Mar. 28, 2019) (Daniels, J.); Diaz v. Genalo, 2024 WL

4124756, at *3 (S.D.N.Y. Sept. 9, 2024) (Broderick, J.); Fajardo v. Decker, 2022 WL

17414471, at *8-9 (S.D.N.Y. Dec. 5, 2022) (Engelmeyer, J.). And while the government

may be correct that this majority is slim, see Docket Item 15-7 at 14-15, that is not

enough to make this Court revisit its prior holdings—especially when the government

points to no new Second Circuit or Supreme Court precedent in support of its position.

See id.

What is more, in Hechavarria, the Second Circuit held that the government’s

reading of section 1231 “would ignore [that statute’s] clear language as well as its

internal logic”: that judicial review is a potential obstacle to—not just a “temporar[y]

interrupt[ion]” of—the government’s “ability to carry out [a noncitizen’s] removal.” 891

F.3d at 56. Indeed, the court noted that the “responsibility to provide meaningful judicial

review is one that is grounded in both the [INA] and the Constitution and may not be

dismissed by the government as a mere procedural nuisance.” Id. “Any interpretation

to the contrary would render judicial review a meaningless symbolic exercise,” the court

said. Id.

Those principles apply equally here. Under the forbearance policy, the Second

Circuit has ensured that it will have a chance to rule on any pending motion for a stay

before the government renders the case moot by sheer fiat. While the government’s

participation in this agreement with the Second Circuit may be “subject to change,”

Docket Item 15-7 at 13 (citation omitted), any such change might very well cause a

concomitant change in Second Circuit practice. Regardless of what the future brings,

the forbearance policy is now in effect, and in Perez Flores’s case it operates—in

conjunction with his motion for a stay—as a stay under section 1231(a)(1)(B). Perez

Flores therefore is detained under section 1226.

II. DUE PROCESS

For the reasons just explained, Perez Flores is detained under section 1226.

While the government “may release” noncitizens detained under section 1226(a), those

detained under section 1226(c)—which applies to noncitizens, presumably like Perez

Flores,6 who have committed certain criminal offenses or engaged in certain terrorist

activities—must be detained unless narrow circumstances related to witness protection

are met. Jennings v. Rodriguez, 583 U.S. 281, 288-89 (2018) (citing 8 U.S.C. § 1226).

In Jennings, a plurality of the Supreme Court held that the statute does not require—

and in fact prohibits—the government from offering a noncitizen detained under section

1226(c) the opportunity to challenge the detention at a bond hearing. See id. at 303-04.

Whether the Constitution requires that noncitizens held under section 1226(a) or (c) be

afforded such an opportunity is a different question, and the Court explicitly declined to

answer it. See id. at 312.

But the Second Circuit has answered that question, holding that noncitizens’ due

process rights bar their detention under section 1226(a) or 1226(c) without adequate

procedural protections. See Velasco Lopez v. Decker, 978 F.3d 842, 851 (2d Cir. 2020)

(addressing detention under section 1226(a)); Black v. Decker, 103 F.4th 133, 138 (2d

6 The parties appear to agree that if Perez Flores is not detained under section

1231, then he is detained under section 1226(c). See Docket Item 1 at 8; Docket Item

15-7 at 7, 18-19; see also infra note 7.

Cir. 2024) (addressing detention under section 1226(c)). And it has held that the three-

factor balancing test of Mathews v. Eldridge, 424 U.S. 319 (1976), “supplies the proper

framework for determining when and what additional procedural protections are due

such . . . detainee[s].” Black, 103 F.4th at 138; see Velasco Lopez, 978 F.3d at 851.

Those factors are:

(1) “the private interest that will be affected by the official action”; (2) “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”; and (3) “the [g]overnment’s interest, including the function

involved and the fiscal and administrative burdens that the additional or

substitute procedural requirement would entail.”

Black, 103 F.4th at 151 (quoting Mathews, 424 U.S. at 335); see Velasco Lopez, 978

F.3d at 851.

Here, the parties appear to agree that if Perez Flores is not detained under

section 1231, then he is detained under section 1226(c).7 See Docket Item 1 at 8;

Docket Item 15-7 at 7, 18-19. Indeed, the government concedes that if the Court

determines that Perez Flores is detained under section 1226, Black controls. See

Docket Item 15-7 at 18-19 (the government’s stating that it “disagrees with the Second

7 While Perez Flores was initially detained under section 1226(c), see Docket

Item 15-1 at ¶ 15; Docket Item 15-2 at 63, it is not entirely clear to this Court that he still

is detained under that section. The basis for his section 1226(c) detention appears to

have been his 2023 conviction. See Docket Item 15-1 at ¶ 15. As the BIA found,

however, because the Appellate Division, Second Department, granted Perez Flores’s

motion to file a late appeal of that conviction, it is “not final for immigration purposes.”

Docket Item 15-2 at 77. The parties do not address whether this determination by the

BIA or the events in Perez Flores’s criminal case impact the statutory basis for his

detention.

Ultimately, however, this Court need not reach that issue: Without question,

Perez Flores is detained under section 1226, see supra Section I, and regardless of

whether he is currently held under section 1226(a) or section 1226(c), the Court must

apply the Mathews factors to determine whether he is entitled to additional process.

See Black, 103 F.4th at 151; Velasco Lopez, 978 F.3d at 851.

Circuit’s decision in Black” but acknowledging that applying Black “would likely lead this

Court to order that [Perez Flores] receive a bond hearing”). The Court therefore turns to

an examination of the Mathews factors.

A. The Private Interest Affected

As an initial matter, the Court finds that the “private interest affected” is a

compelling one. Indeed, as the Second Circuit explained in Black, the private interest

implicated in immigration detention cases is “the most significant liberty interest there

is—the interest in being free from imprisonment.” 103 F.4th at 151 (quoting Velasco

Lopez, 978 F.3d at 851). And while “[t]he private interest here is not liberty in the

abstract, but liberty in the United States,” Parra v. Perryman, 172 F.3d 954, 958 (7th Cir.

1999), Perez Flores has lived in this country for more than two decades, see Docket

Item 1 at 2; Docket Item 15-2 at 17. Further, he has sought relief from deportation, and

his case remains pending before the Second Circuit. See Docket Item 15-1 at ¶¶ 25-28;

Perez Flores, Case No. 25-195, Docket Item 30. So his interest in liberty in the United

States must be particularly strong for him to subject himself to prolonged detention

during the appeals process, which can be lengthy. See Fremont v. Barr, 2019 WL

1471006, at *6 n.7 (W.D.N.Y. Apr. 3, 2019).

Moreover, Perez Flores has been in ICE custody for almost a year and a half.

See Docket Item 1 at 3; Docket Item 15-1 at ¶ 15. In Black, the Second Circuit held that

even a “seven-month-long detention” absent procedural protections was a “serious[]

infringe[ment]” of liberty. 103 F.4th at 151. And while Perez Flores’s “detention[] in

some sense [may be] the result of a criminal adjudication”—he was initially found to be

removable based on a criminal conviction—he has “served his entire sentence” of

incarceration for that conviction. See id. (internal quotation marks omitted); Docket Item

1 at 12; Docket Item 15-1 at ¶ 15. So Perez Flores’s current “detention[] d[oes] not

arise from new or unpunished conduct.” See Black, 103 F.4th at 151.

In sum, as in Black, “the first Mathews factor weighs heavily in favor of” Perez

Flores. See Black, 103 F.4th at 152.

B. The Risk of Erroneous Deprivation and the Value of Additional

Procedural Safeguards

In light of the procedures used—and more important, those not provided—thus

far, there is a significant risk of an erroneous deprivation of Perez Flores’s liberty. See

Velasco Lopez, 978 F.3d at 852 (procedures afforded to noncitizen detained under

section 1226(a) during his 15-month incarceration “markedly increased the risk of

error”); Black, 103 F.4th at 152 (stating that “the ‘procedures used’ for section 1226(c)

detainees are very few” and “include no mechanism for a detainee’s release, nor for

individualized review of the need for detention”).

Perez Flores has had no opportunity to challenge the basis for his detention—to

argue, for instance, that he poses no danger to the community or risk of flight while his

appeal proceeds. See Docket Item 1 at 3. And while ICE apparently conducted a “file

custody review” of Perez Flores’s detention earlier this year, see Docket Item 15-1 at

¶¶ 29-30, that is no substitute for a bond hearing. Perez Flores was not given the

opportunity to appear before a neutral decisionmaker, contest evidence against him, or

testify on his own behalf. See Docket Item 15-2 at 30; Docket Item 17 at 2. So this

Court finds—just as the Second Circuit did in Black—that an “individualized bond

hearing at which an [immigration judge could] consider” whether Perez Flores’s

continued detention is justified would add significant value here. 103 F.4th at 153.

The second factor also weighs in Perez Flores’s favor.

C. The Government’s Interest

Finally, this Court recognizes that the government’s interest in detaining Perez

Flores also may be strong. In mandating the detention of noncitizens who have

committed certain crimes, section 1226(c) reflects a congressional purpose of reducing

the risk of flight and danger to the community. See Demore v. Kim, 538 U.S. 510, 518-

19 (2003); see also Jennings, 583 U.S. at 303-04. It is “well[ ]established” that the

government has a “legitimate” and compelling interest in both those aims. Black, 103

F.4th at 153.

But those interests do not outweigh Perez Flores’s liberty interest. As already

explained, Perez Flores has had no opportunity to challenge the statutory assumption

that there is any risk he will flee or endanger the community while his case proceeds.

See Docket Item 1 at 3. Therefore, absent a bond hearing, it is not clear that Perez

Flores’s detention is required to serve the government’s general interests in detaining

noncitizens facing deportation. And the government has not identified any special

interests that would justify Perez Flores’s continued detention here without an

individualized bond hearing. See generally Docket Item 15-7.

The third factor therefore weighs in Perez Flores’s favor as well.

D. Conclusion

In sum, under the Mathews framework, Perez Flores’s continued detention

absent a bond hearing violates the Due Process Clause. The Court nonetheless

declines to grant—at least at this time—Perez Flores’s request for his “release.” See

Docket Item 1 at 15. Instead, consistent with the Second Circuit’s reasoning, this Court

finds that an individualized bond hearing where the government bears the burden of

justifying the petitioner’s continued detention is the appropriate remedy. See Black, 103

F.4th at 155-59; see also Docket Item 1 at 15 (requesting either “release” or a bond

hearing). More specifically, due process entitles Perez Flores to an individualized bond

hearing before an immigration judge where the government must show, by clear and

convincing evidence, that his continued detention is necessary. See Black, 103 F.4th at

155-59. At that hearing, the immigration judge must consider whether “alternatives to

detention” would address the government’s interest in ensuring Perez Flores’s

appearance and the safety of the community. See id. at 155. And if the immigration

judge decides that a bond might serve that interest, the judge must “consider [Perez

Flores’s] ability to pay” in setting any bond amount. See id. at 158.

ORDER

In light of the above, IT IS HEREBY

ORDERED that within 14 calendar days of the date of this decision and

order, the government must release Perez Flores from detention unless a neutral

decisionmaker conducts an individualized hearing to determine whether Perez Flores’s

continued detention is justified; and it is further

ORDERED that at any such hearing, the government has the burden of

demonstrating by clear and convincing evidence that Perez Flores’s continued detention

is necessary to serve a compelling regulatory purpose, such as minimizing risk of flight

or danger to the community. Whether detention is necessary to serve a compelling

regulatory purpose requires consideration of whether a less-restrictive alternative to

detention would also address the government’s interests. In other words, the

decisionmaker must find that no condition or combination of conditions of release can

reasonably ensure Perez Flores’s appearance and the safety of the community—that is,

even with conditions, Perez Flores presents an identified and articulable risk of flight or

a threat to the community; and it is further

ORDERED that the immigration judge must consider Perez Flores’s ability to pay

when setting any bond amount; and it is further

ORDERED that within 30 days of the date of this decision and order the

government shall file an affidavit certifying compliance with this order. That affidavit

should include a copy of the bond hearing order.

SO ORDERED.

Dated: July 14, 2025

Buffalo, New York

/s/ Lawrence J. Vilardo

LAWRENCE J. VILARDO

UNITED STATES DISTRICT JUDGE