# Perez Flores v. Bondi

> District Court, W.D. New York · July 14, 2025

URL: https://www.frixlaw.com/law-library/cases/11099457

## Case

- **Court:** District Court, W.D. New York
- **Decided:** July 14, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11099457

## How later opinions describe it (automated extraction)

- holding that it is “presumptively reasonable” for the government to detain noncitizens under section 1231 for a six-month period

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11099457. Public record. Not legal advice.