Mata Velasquez v. Kurzdorfer

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

OLIVER ELOY MATA VELASQUEZ,

Petitioner,

25-CV-493-LJV

v. DECISION & ORDER

STEPHEN KURZDORFER et al.,

Respondents.

Oliver Eloy Mata Velasquez followed all the rules. He did not sneak into the

country; instead, he came here under a United States Department of Homeland

Security (“DHS”) program for individuals like him—those fleeing Venezuela. He

traveled here at his own expense.

When he arrived in the United States, DHS told him that he could remain here on

parole for two years; in fact, the government gave him a work authorization and

assigned him a social security number. And since his arrival almost a year ago, Mata

Velasquez has done everything asked of him. He appeared for every appointment and

court date. He committed no crimes. He did what he was supposed to do.

But when Mata Velasquez came to court for a scheduled appearance in his

asylum case in May of this year, he was arrested by United States Immigration and

Customs Enforcement (“ICE”). He has been detained since. Nineteen years old with

no criminal history and in prison for the first time, he is scared. Even worse, he reports

being harassed so badly by other detainees that officers have threatened to place him

in solitary confinement.

It is not for this Court to decide whether the prior administration made the correct

decision in instituting the parole program through which Mata Velasquez was invited

and came to this country. Nor is it for this Court to decide whether the current

administration is making the right policy choice in terminating that program. The

narrow—but weighty—question before the Court is this: what process is Mata

Velasquez due before DHS can do an about-face, terminate his parole, and keep him in

custody pending his deportation?

The answer to that question is far from easy. It involves walking a tightrope. On

one side is this Court’s crucial role as a check on the executive branch. On the other,

and equally important, is this Court’s obligation to stay within the bounds of its

jurisdiction and not exceed its authority.

After careful consideration, this Court finds that Mata Velasquez is likely to

succeed on his argument that his detention is unlawful and violates his right to

procedural due process. And because this Court also finds that [Mata Velasquez’s]

detention is causing him irreparable harm and that the balance of the equities tips

decidedly in his favor, the Court grants his motion for a preliminary injunction. Docket

Item 22. This Court therefore orders that Mata Velasquez must be released and may

not be re-detained without leave of Court, which this Court will not grant unless and until

the government1 demonstrates that Mata Velasquez has received a meaningful

opportunity to be heard.

1 For ease of reference, this Court will refer to the respondents—Stephen

Kurzdorfer, in his official capacity as Acting Field Office Director, Buffalo Field Office,

Enforcement and Removal Operations, ICE; Joseph Freden, in his official capacity as

Deputy Field Office Director of the Buffalo Federal Detention Facility; Todd Lyons, in his

official capacity as Acting Director of ICE; Kristi Noem, in her official capacity as U.S.

BACKGROUND

I. 2022 DHS PAROLE PROGRAM FOR VENEZUELANS

In 2022, DHS instituted a program for Venezuelans that “coupl[ed] a meaningful

incentive to seek a lawful, safe[,] and orderly means of traveling to the United States

with the imposition of consequences for those who s[ought] to enter irregularly.” Doe v.

Noem, --- F. Supp. 3d ---, 2025 WL 1099602, at *1 (D. Mass. Apr. 14, 2025) (quoting

Implementation of a Parole Process for Venezuelans (“Parole Implementation”), 87 Fed.

Reg. 63507 (Oct. 19, 2022)). “Under the program, individuals who passed a national

security and public safety vetting and who had a supporter in the United States who

agreed to provide housing and other support could receive an advanced authorization to

travel to the United States for the purposes of seeking, on a case-by-case basis, a

discretionary grant of parole at an internal port of entry.” Id. (citing Parole

Implementation, 87 Fed. Reg. at 63515). “The program specified that discretionary

grants of parole would be for a temporary period of up to two years, during which time

individuals could seek humanitarian relief or other benefits and receive work

authorization.” Id. (citing Parole Implementation, 87 Fed. Reg. at 63508). It further

provided “that those ‘who [we]re not granted asylum or other immigration benefits

w[ould] need to leave the United States at the expiration of their authorized period of

parole or w[ould] generally be placed in removal proceedings after the period of parole

expire[d].’” Id. (quoting Parole Implementation, 87 Fed. Reg. at 63508). The program

Secretary of Homeland Security; Pamela Bondi, in her official capacity as Attorney

General of the U.S.; Sirce E. Owen, in her official capacity as Acting Director of the

Executive Office for Immigration Review (“EOIR”); DHS; ICE; U.S. Department of

Justice; and EOIR—as “the government” throughout this opinion.

“was capped at 24,000 beneficiaries.” Id. (citing Parole Implementation, 87 Fed. Reg. at

63508).

II. 2025 FEDERAL REGISTER NOTICE OF TERMINATION

On March 25, 2025, DHS issued a notice in the Federal Register that it was

terminating parole for anyone admitted through the parole program for Venezuelans, or

the similar parole programs for Cubans, Haitians, and Nicaraguans (collectively the

“CHNV parole programs”). See Termination of Parole Processes for Cubans, Haitians,

Nicaraguans, and Venezuelans (“Termination Notice”), 90 FR 13611-01, 2025 WL

894696 (Mar. 25, 2025). Among other things, the notice stated that

DHS has determined that it is now appropriate and necessary to terminate

the CHNV parole programs. These programs do not serve a significant

public benefit, are not necessary to reduce levels of illegal immigration, did

not sufficiently mitigate the domestic effects of illegal immigration, are not

serving their intended purposes, and are inconsistent with the

Administration’s foreign policy goals. Regarding previous arguments or

determinations that these programs were consistent with the requirement

of “urgent humanitarian reasons” for granting parole, DHS believes that

consideration of any urgent humanitarian reasons for granting parole is best

addressed on a case-by-case basis consistent with the statute, and taking

into consideration each [noncitizen]’s specific circumstances. These

reasons, independently and cumulatively, support termination of the CHNV

parole programs.

Accordingly, the Secretary, in her discretion, is terminating the CHNV parole

programs. Consistent with her statutory authority, the Secretary retains

discretion to continue to extend parole to any [noncitizen] paroled under

CHNV—temporarily under such conditions as she may prescribe only on a

case-by-case basis for urgent humanitarian reasons or significant public

benefit. See INA [§] 212(d)(5)(A), 8 U.S.C. [§] 1182(d)(5)(A). The decision

to do so, or not do so, is committed to the Secretary’s sole discretion.

Id. at 13612 (italics added) (footnote omitted).2

2 The legality of this notice is being litigated. On April 15, 2025, a district court in

the District of Massachusetts entered an emergency preliminary injunction staying the

notice. See Doe, 2025 WL 1099602, at *20 (staying the Termination Notice “pending

III. MATA VELASQUEZ

Mata Velasquez “came to the United States to seek safety.” Docket Item 21 at

¶ 39. More specifically, under the 2022 parole program, he “applied to enter the United

States” from Venezuela “through [DHS’s] CBPOne application and received an

appointment to come to the United States to present his application for asylum.” Id. at

¶ 39. He traveled here at his own cost, arriving on September 13, 2024. Id. at ¶ 40.

Upon his arrival, Mata Velasquez was given a notice to appear (“NTA”) on May

21, 2025. Id. In the meantime, he was granted discretionary humanitarian parole for

two years to pursue his asylum claim. Id. He subsequently applied for and received

employment authorization and a social security number. Id. at ¶ 41.

As explained above, on March 25, 2025, DHS published a notice that it was

terminating the parole programs that have been in place for individuals from Cuba, Haiti,

Nicaragua, and Venezuela. See id. at ¶ 42. On May 21, Mata Velasquez appeared in

immigration court as ordered. Id. at ¶ 43. The immigration judge (“IJ”) adjourned his

case until February 4, 2026, so that Mata Velasquez could obtain legal counsel and

prepare to file an asylum application. Id. All seemed to be going as had been promised

further court order insofar as it revokes, without case-by-case review, the previously

granted parole and work authorization issued to noncitizens paroled into the United

States pursuant to [the CHNV parole programs] prior to the noncitizen’s originally stated

parole end date”). That decision is currently on appeal before the First Circuit. In the

meantime, however, the Supreme Court stayed the injunction without a written opinion

explaining its reasoning. See Noem v. Doe, 145 S. Ct. 1524 (2025) (“The application

for stay . . . is granted. The April 15, 2025[,] order entered by the United States District

Court for the District of Massachusetts, case No. 1:25-cv-10495, is stayed pending the

disposition of the appeal in the United States Court of Appeals for the First Circuit and

disposition of a petition for a writ of certiorari, if such a writ is timely sought. Should

certiorari be denied, this stay shall terminate automatically. In the event certiorari is

granted, the stay shall terminate upon the sending down of the judgment of this Court.”).

and as Mata Velasquez planned. But he then was arrested at the courthouse. Id. at

¶ 44.

Now in immigration custody, Mata Velasquez “is terrified and experiencing the

harms of being in a carceral setting for the first time.” Id. at ¶ 46. “He has experienced

harassment from at least [ten] other detainees, many of whom are much older than

him.” Id. “Officers threatened to place him in solitary confinement, and [he] is very

scared of being put in such isolating conditions.” Id. He also “fears physical harm from

his harassers.” Id. He is “suffer[ing] stress and anxiety in detention and was given

medication to try to relax him, but the medication has not been working.” Id.

On May 28, 2025, a week after his arrest, ICE “issued a letter in English only—

even though [Mata Velasquez] only reads in Spanish—that terminated his parole

pending the outcome of his removal proceedings.” Id. at ¶ 47. The letter stated:

“On September 13, 2024, U.S. Customs and Border Protection (CBP) granted you a

discretionary humanitarian parole into the United States. [DHS] has revoked your

parole and taken you back into custody pending the outcome of removal proceedings.”

Docket Item 62-1 at 5.3 It did not provide any further explanation for DHS’s decision.

See id.

That same day, DHS moved to dismiss the 8 U.S.C. § 1229a removal

proceedings against Mata Velasquez. Docket Item 21 at ¶ 48. More specifically, DHS

stated that it had “reviewed the facts and circumstances of the case and determined

that circumstances after [the] issuance of the [NTA] have changed to such an extent

that continuation is no longer in the best interest of the government.” Id. The IJ granted

3 Page numbers in docket citations refer to ECF pagination.

that motion on June 6, and Mata Velasquez appealed to the Board of Immigration

Appeals (“BIA”). Id. at ¶ 51.

“On June 10, 2025—despite [Mata Velasquez]’s pending appeal of the dismissal

of his removal proceedings and without notifying [his] counsel—the government initiated

expedited removal proceedings against [him] pursuant to § 1225(b)(1).” Id. at ¶ 52. He

appeared for a bond hearing on June 11, but the IJ held that Mata Velazquez was

ineligible for bond because section 1225(b) mandates detention. Id. at ¶ 53. ICE then

referred Mata Velazquez to a credible fear interview (“CFI”). Id.

A short time later, Mata Velasquez moved for a temporary restraining order

(“TRO”) to stop the expedited removal process, Docket Item 43, but he withdrew his

TRO request after the parties reached a stipulation, Docket Item 51 at ¶ 13. Among

other things, the stipulation provided that United States Citizenship and Immigration

Services (“USCIS”) had determined that it did not have jurisdiction to conduct the CFI

under the expedited removal process while Mata Velazquez’s appeal to the BIA is

pending. Id. at ¶ 10. The parties further agreed that

[i]n the event that USCIS determines at a later date that it has jurisdiction to

conduct a CFI while [Mata Velasquez]’s [s]ection 1229a proceedings

remain pending, including while on appeal at the BIA, and if ICE then

chooses to request that USCIS conduct a CFI in the future, it will do so only

after having given [Mata Velasquez]’s counsel [seven] days’ notice of such

intent.

Id. at ¶ 11.

LEGAL PRINCIPLES

I. PRELIMINARY INJUNCTION

“A plaintiff seeking a preliminary injunction must establish that he is likely to

succeed on the merits, that he is likely to suffer irreparable harm in the absence of

preliminary relief, that the balance of equities tips in his favor, and that an injunction is in

the public interest.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008).

“When the government is a party to the suit, [the court’s] inquiries into the public interest

and the balance of the equities merge.” We The Patriots USA, Inc. v. Hochul, 17 F.4th

266, 295 (2d Cir.), opinion clarified, 17 F.4th 368 (2d Cir. 2021).

“A preliminary injunction is an extraordinary remedy never awarded as of right.”

Winter, 555 U.S. at 24. In fact, preliminary injunctions “should not be routinely granted.”

Hanson Tr. PLC v. SCM Corp., 774 F.2d 47, 60 (2d Cir. 1985) (quoting Med. Soc. of

State of N.Y. v. Toia, 560 F.2d 535, 537 (2d Cir. 1977)). And “[w]hen deciding whether

to issue a preliminary injunction, courts ‘should pay particular regard for the public

consequences in employing the extraordinary remedy of injunction.’” We The Patriots

USA, Inc., 17 F.4th at 279 (quoting Winter, 555 U.S. at 24).

II. SECTION 2241 PETITION

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)). “When a petitioner brings a habeas petition [under section] 2241,

the petitioner ‘bears the burden of proving that he is being held contrary to law; and

because the habeas proceeding is civil in nature, the petitioner must satisfy his burden

of proof by a preponderance of the evidence.’” Dzhabrailov v. Decker, 2020 WL

2731966, at *3 (S.D.N.Y. May 26, 2020) (quoting Skaftouros v. United States, 667 F.3d

144, 158 (2d Cir. 2011)). “The equitable principles governing [section] 2241 are

reflected in the plenary discretion vested in habeas courts to ‘hear and determine the

facts, and dispose of the matter as law and justice require.’” Id. (alterations omitted)

(quoting Pinkney v. Keane, 920 F.2d 1090, 1093 (2d Cir. 1990)).

DISCUSSION

I. STATUTORY AND REGULATORY CONTEXT

Under 8 U.S.C. § 1225, a noncitizen “who ‘arrives in the United States,’ or ‘is

present’ in this country but ‘has not been admitted,’ is treated as ‘an applicant for

admission.’” Jennings v. Rodriguez, 583 U.S. 281, 287 (2018) (quoting 8 U.S.C.

§ 1225(a)(1)). “Section 1225(b)(1) applies to [noncitizens] initially determined to be

inadmissible due to fraud, misrepresentation, or lack of valid documentation,” as well as

“to certain other [noncitizens] designated by the Attorney General in h[er] discretion.”

Id. (citing 8 U.S.C. § 1225(b)(1)).

Noncitizens “covered by [section] 1225(b)(1) are normally ordered removed

‘without further hearing or review’ pursuant to an expedited removal process.” Id. (citing

8 U.S.C. § 1225(b)(1)(A)(i)). But if a noncitizen covered by section 1225(b)(1)

“‘indicates either an intention to apply for asylum . . . or a fear of persecution,’ then that

[person] is referred for an asylum interview.” Id. (quoting 8 U.S.C. § 1225(b)(1)(A)(ii)).

The noncitizen “shall be detained pending a final determination of credible fear of

persecution and, if found not to have such a fear, until removed.” 8 U.S.C.

§ 1225(b)(1)(B)(iii)(IV). And “[i]f an immigration officer determines after that interview

that the [noncitizen] has a credible fear of persecution, ‘the [noncitizen] shall be

detained for further consideration of the application for asylum’” under section 240 of the

Immigration and Nationality Act (“INA”). Jennings, 583 U.S. at 286 (quoting 8 U.S.C.

§ 1225(b)(1)(B)(ii)).

Alternatively, DHS can forgo the expedited removal process and refer an

applicant for admission to removal proceedings under section 240 of the INA, 8 U.S.C.

§ 1229a. See 8 U.S.C. § 1225(b)(2). Under 8 U.S.C. § 1229a, a noncitizen in section

240 proceedings has “the privilege of being represented . . . by counsel of the

[noncitizen]’s choosing who is authorized to practice in such proceedings” and “a

reasonable opportunity to examine the evidence against the [noncitizen], to present

evidence on the [noncitizen]’s own behalf, and to cross-examine witnesses presented

by the [g]overnment.” 8 U.S.C. § 1229a(b)(4). Under 8 C.F.R. § 1003.38(a), decisions

made by IJs “may be appealed to the [BIA].” And under 8 U.S.C. § 1252(b)(2), final

orders of removal may be appealed to the United States Court of Appeals for the judicial

circuit in which the final order was entered. Like section 1225(b)(1), section 1225(b)(2)

mandates detention. See 8 U.S.C. § 1225(b)(2)(A) (stating that the noncitizen “shall be

detained for a proceeding under section 1229”).

The only exception to the mandatory detention required by section 1225 is that

“applicants for admission may be temporarily released on parole ‘for urgent

humanitarian reasons or significant public benefit.’” Jennings, 583 U.S. at 288 (quoting

8 U.S.C. § 1182(d)(5)(A)). “Such parole, however, ‘shall not be regarded as an

admission of the [noncitizen].’” Id. (quoting 8 U.S.C. § 1182(d)(5)(A)).

DHS can terminate parole “upon accomplishment of the purpose for which parole

was authorized or when in the opinion of one of [certain specified DHS] officials . . . ,

neither humanitarian reasons nor public benefit warrants the continued presence of the

[noncitizen] in the United States.” 8 C.F.R. § 212.5(e)(2)(i). DHS must provide “written

notice to the [noncitizen] and he or she shall be restored to the status that he or she had

at the time of parole.” Id.; see also 8 U.S.C. § 1182(d)(5)(A) (explaining that “when the

purposes of such parole shall, in the opinion of the Secretary of Homeland Security,

have been served[,] the [noncitizen] shall forthwith return or be returned to the custody

from which he was paroled and thereafter his case shall continue to be dealt with in the

same manner as that of any other applicant for admission to the United States”). “Any

further inspection or hearing shall be conducted under section 235 [8 U.S.C. § 1225] or

240 [8 U.S.C. § 1229] of the [INA] and this chapter, or any order of exclusion,

deportation, or removal previously entered shall be executed.” 8 C.F.R. § 212.5(e)(2)(i).

“If the exclusion, deportation, or removal order cannot be executed within a reasonable

time,” however, the noncitizen “shall again be released on parole unless in the opinion

of the official listed in paragraph (a) of this section the public interest requires that the

[noncitizen] be continued in custody.” Id.

II. THIS COURT’S JURISDICTION

A. Section 1252(g)

The government argues that “[t]his Court lacks jurisdiction to hear challenges to

certain executive actions taken in the immigration context, including the initiation of

removal proceedings,” and that Mata Velasquez’s claims therefore “should be denied at

the outset.” Docket Item 42 at 8. More specifically, the government observes that 8

U.S.C. § 1252(g) withholds jurisdiction from district courts over “any cause or claim by

or on behalf of any [noncitizen] arising from the decision or action by the Attorney

General to commence proceedings, adjudicate cases, or execute removal orders

against any [noncitizen] under this chapter.” Id. (quoting 8 U.S.C. § 1252(g)). Thus, the

government argues, this Court has no jurisdiction to review the government’s decision

to commence expedited removal proceedings against Mata Velasquez. Id. at 9.

This Court agrees that it lacks jurisdiction to review the government’s

discretionary decisions to initiate removal proceedings. In other words, this Court does

not have the power to second-guess the wisdom of the executive branch’s exercise of

its discretion. But district “[c]ourts can review ‘how’ [the respondents] exercise their

discretion because such a claim does not ask ‘why the Secretary chose to execute the

removal order’ but rather ‘whether the way [the respondents] acted accords with the

Constitution and the laws of this country.’” Torres-Jurado v. Biden, 2023 WL 7130898,

at *2 (S.D.N.Y. Oct. 29, 2023) (quoting You, Xiu Qing v. Nielsen, 321 F. Supp. 3d 451,

457 (S.D.N.Y. 2018)). “Put another way[, the r]espondents are empowered to remove

[the p]etitioner at their discretion. But they cannot do so in any manner they please.”

You, 321 F. Supp. 3d at 457. Thus, district courts can—and do—entertain challenges

to the procedural processes that the executive branch follows during the removal

process. See, e.g., id. at 455-58 (finding jurisdiction to decide whether ICE’s decision to

remove a Chinese national before his motion to reopen was adjudicated would violate

the INA); Calderon v. Sessions, 330 F. Supp. 3d 944, 956 (S.D.N.Y. 2018) (finding that

petitioner’s “seek[ing] consideration of his legitimate and authorized pursuit of an

existing process before the government exercises its right to remove . . . is not a claim

of a right to remain in the United States”); Fatty v. Nielsen, 2018 WL 3491278, at *1-2

(W.D. Wash. July 20, 2018) (holding that section 1252(g) did not deprive court of

jurisdiction over petitioner’s request for a stay of his removal pending the adjudication of

his petition for a T-Visa).

Here, Mata Velasquez argues that ICE violated the statutory framework as well

as constitutional law when it re-detained him. That is a question that falls squarely

within this Court’s habeas jurisdiction. And for that reason, section 1252(g) does not

bar this Court’s hearing Mata Velasquez’s habeas petition.

B. Sections 1252(a)(2)(A) and 1252(e)(3)

The government also argues that section 1252(a)(2)(A) bars this Court from

reviewing “challenges relating to the Attorney General’s decision to invoke expedited

removal, h[er] choice of whom to remove in this manner, h[er] procedures and policies,

and the implementation or operation of a removal order.” Docket Item 42 at 10 (citation

omitted). And, the government argues, to the extent that Mata Velasquez challenges

the expedited removal process, “such challenges must be filed in the U.S. District Court

for the District of Columbia.” Id. at 9 (citing 8 U.S.C. § 1252(e)(3)(A)).

Mata Velasquez counters that because “none of the claims on which [he] seeks

preliminary relief implicate expedited removal, the jurisdictional bars at [sections]

1252(e)(3)(a) and (a)(2)(A), which solely concern expedited removal, are categorically

inapplicable.” Docket Item 54 at 5-6. “[A]s the government has conceded,” Mata

Velasquez explains, he “is not in expedited removal proceedings; he is in [s]ection 240

proceedings.” Id. at 5 (citing Docket Item 51). “Nor were expedited removal

proceedings even possible at the time the government unlawfully arrested [him],” he

says, “as the government had not yet moved to dismiss his [s]ection 240 proceedings.”

Id. Moreover, Mata Velasquez observes, section “1252(e)(3) narrowly applies only to

systemic challenges to regulations implementing expedited removal, not to

constitutional or statutory claims which precede and are collateral to that process,

including, as relevant here, unlawful arrest or detention.” Id. at 6.

The crux of Mata Velasquez’s argument with respect to expedited removal is that

the government does not have the lawful authority to initiate that process against him at

this time because of his current status. He does not challenge the statutory framework,

nor does he challenge the wisdom of the discretionary decision to place him in

expedited proceedings. Sections 1252(a)(2)(A) and 1252(e)(3) therefore do not bar this

Court from considering his petition.

C. Section 1252(a)(2)(B)(ii)

Finally, the government argues that “to the extent [Mata Velasquez] challenges

the revocation of his parole . . . such review by this Court is precluded under [section]

1252(a)(2)(B)(ii).” Docket Item 42 at 10; see 8 U.S.C. § 1252(a)(2)(B) (providing in

relevant part that “no court shall have jurisdiction to review . . . any . . . decision or

action of the Attorney General or the Secretary of Homeland Security the authority for

which is specified under this subchapter to be in the discretion of the Attorney

General or the Secretary of Homeland Security”). In support, the government relies on

a case in which the Seventh Circuit found that “[r]evocation of parole, because it is an

exercise of discretionary authority by the immigration authorities, 8 U.S.C.

§ 1182(d)(5)(A), is not judicially reviewable.” Docket Item 42 at 10 (quoting Samirah v.

Holder, 627 F.3d 652, 656 (7th Cir. 2010)).

As the Second Circuit has held, however, even when a “statute strips jurisdiction

over a substantive discretionary decision, [it] does not strip jurisdiction over procedural

challenges.” Mantena v. Johnson, 809 F.3d 721, 728 (2d Cir. 2015); see also Sharkey

v. Quarantillo, 541 F.3d 75, 86 (2d Cir. 2008) (explaining agency action “not performed

in accordance with the mandatory rescission procedures” is “not specified . . . to be in

the discretion of the Attorney General” (citation and internal quotation marks omitted)).

In other words, while courts cannot question the discretion that is exercised, they can

address the process used to exercise that discretion.

That is precisely what Mata Velasquez challenges here. He says that before he

could be re-detained, he was entitled to some procedural due process. And even if this

Court were ultimately to reject Mata Velasquez’s argument about the process to which

he is entitled, “[t]he proper course . . . would be to find subject matter jurisdiction and

then . . . [, if appropriate, to] find that [he] had no right to the asserted procedural

safeguards, and, therefore, had provided no claim upon which relief could be granted.”

See Mantena, 809 F.3d at 729-30. Section 1252(a)(2)(B)(ii) therefore does not bar this

Court from exercising jurisdiction over Mata Velasquez’s claims.

III. EXHAUSTION

The government next argues that “[t]o the extent [that Mata Velasquez]

challenges the dismissal of his removal proceedings under INA § 240, he has failed to

exhaust administrative remedies, which would obviate the need for federal court

intervention, requiring dismissal of that claim.” Docket Item 42 at 11. This Court need

not linger long on this argument. As the petitioner observes, “[t]he government does

not—and cannot—explain how resolution of his BIA appeal would preclude judicial

review of his claims in this motion concerning his unlawful arrest and detention.” Docket

Item 54 at 7. The government is correct that this Court does not have jurisdiction to

decide the question—currently pending before the BIA—of whether the IJ properly

granted the government’s motion to dismiss the section 240 proceedings. But the

questions before this Court are distinct from that question, and, therefore, the

exhaustion that the government urges would be futile.

IV. MATA VELASQUEZ’S LIKELIHOOD OF SUCCESS ON THE MERITS

This brings the Court to the crux of the issue: whether Mata Velasquez is lawfully

detained. To answer that question, this Court first must explore what rights, if any, Mata

Valasquez has with respect to his arrest and detention under the relevant statutory

framework and the Due Process Clause of the Constitution. The Court then must

examine whether the government has violated any of those rights.

A. Statutory Rights

There is no dispute that Mata Velasquez has the “rights . . . afforded by statute.”

See Docket Item 42 at 19. The parties sharply disagree, however, about the scope of

those rights.

1. The government’s ability to commence expedited removal

proceedings while Mata Velasquez’s section 240 appeal still is

pending

The government appears to argue that because it seeks to put Mata Velasquez

into expedited removal proceedings, his detention is per se lawful. See Docket Item 42

at 13 (explaining that “Congress has decided that for arriving [noncitizens] subject to the

process of expedited removal, detention is mandatory” (citing 8 U.S.C.

§ 1225(b)(1)(B)(ii), (b)(1)(B)(iii)(IV))). According to the government, “there are no

statutory provisions allowing [Mata Velasquez] to challenge his detention; it is mandated

by statute.” Id. In other words, the government seems to be saying that regardless of

Mata Velasquez’s parole, if it puts him in expedited removal proceedings, it has a new

basis for his detention that effectively annuls his previous grant of parole. If Mata

Velasquez is not in expedited removal proceedings, however, that argument no longer

works.

Mata Velasquez argues that he is not currently in expedited removal proceedings

and that he cannot be placed in expedited proceedings unless and until his BIA appeal

has been decided.4 See Docket Item 54 at 5; see also Docket Item 44. And at least

one official at USCIS with the authority to close his case agrees with him.5 See Docket

Item 51 at ¶ 10 (stating that “USCIS stated to [Mata Velasquez]’s immigration counsel

that [Mata Velasquez]’s case with the agency ‘has been closed due to lack of

jurisdiction’”). For the reasons explained below, this Court agrees with USCIS that Mata

4 There remains a question of whether the government has the authority to

commence expedited removal proceedings even after the BIA rules. See Y-Z-L-H v.

Bostock, 2025 WL 1898025, at *11 n.101 (D. Or. July 9, 2025) (noting that the

“[p]etitioner might not be eligible to be placed into [section] 1225(b)(1) expedited

removal upon termination of parole”); Doe, 2025 WL 1099602, at *16-17 (rejecting

DHS’s argument that termination of parole allows for placement into expedited removal

because 8 U.S.C. § 1225(b)(1) applies only to noncitizens “arriving in the United States”

or who have entered unlawfully and have been present less than two years (quoting §

1225(b)(1))). But that is a question for another day.

5 Counsel for the government made it clear at oral argument that he disagrees

with this assessment. It is worth noting that in a similar case, however, the government

appears to have conceded the point. See Y-Z-L-H, 2025 WL 1898025, at *5 (noting that

the “[r]espondents concede that [the p]etitioner is not currently in ‘expedited removal’

proceedings” and “further concede that [he] remains in removal proceedings under 8

U.S.C. § 1229a during his administrative appeal of the dismissal of his removal

proceedings”).

Velasquez has a statutory right protecting him from being placed in expedited removal

proceedings before the BIA decides his appeal on his section 240 proceedings.

Because DHS chose to place Mata Velasquez in section 240 proceedings

instead of pursuing expedited removal in the first instance—even though it was not

required to do that—the government vested Mata Velasquez with the rights that

Congress guaranteed non-citizens in those proceedings. See Augustin v. Sava, 735

F.2d 32, 36 (2d Cir. 1984) (“Although [noncitizens] who petition for admission have no

constitutional rights regarding their applications, they do have such statutory rights as

Congress grants.” (footnote omitted)); cf. Torres-Jurado, 2023 WL 7130898, at *3

(“Although [d]efendants were under no obligation to grant the ICE Stay in the first place,

their decision to do so triggered obligations that they cannot now ignore.”). In Augustin,

for example, the Second Circuit found that an asylum applicant “was denied procedural

rights protected by statute and INS regulations . . . where the translation of the asylum

application was nonsensical, the accuracy and scope of the hearing translation are

subject to grave doubt, appellant misunderstood the nature and finality of the

proceeding, and a credible claim which developed following translation was not

reviewed.” 735 F.2d at 38. And those rights include being able to appeal IJ decisions

to the BIA, see 8 C.F.R. § 1003.38(a), and—as discussed in more detail below, see

infra Section IV.A.2—not to have parole revoked unless a government official gives

notice and makes certain findings, see 8 C.F.R. § 212.5(e)(2)(i); see also 8 U.S.C.

§ 1182(d)(5)(A).

Relying on the Third Circuit’s decision in Avila v. Attorney General, 826 F.3d 662,

669 (3d Cir. 2016), the government says that “[n]othing in the statute prohibits [Mata

Velasquez] from being subject to both expedited removal and removal proceedings

under INA 240/[section] 1229a.” See Docket Item 42 at 14. But as Mata Velasquez

observes, in Avila, the two proceedings were based on different and independent

grounds for removal. See Docket Item 44 at 12 (citing Avila, 826 F.3d at 670). Thus,

Avila does not address the situation here where a section 1229 proceeding is pending

and the government wants to start an expedited removal proceeding—and to detain the

noncitizen—on the same ground.

As explained above, Mata Velasquez’s right to have his appeal heard by the BIA

prohibits the initiation of expedited removal proceedings—and therefore mandatory

detention under 8 U.S.C. § 1225(b)(1)—before his section 240 proceedings have been

allowed to run their procedural course. “ICE cannot manipulate the removal

proceedings in its favor by substituting expedited proceedings for immigration

proceedings already in progress before the immigration court. It is an abuse of

process.” Valdez v. Joyce, 2025 WL 1707737, at *4 (S.D.N.Y. June 18, 2025).6

2. Requirements for revocation of parole

That does not end the inquiry, however. The government also says that it has

revoked Mata Velazquez’s parole and that he therefore “remains detained pursuant to 8

6 What is more, and as explained in more detail below, see infra Section IV.B.1,

there is something fundamentally unfair about the government’s changing the rules by

fiat simply because it wants to. That is arbitrary by definition. And that is especially

troubling here, where Mata Velasquez played by the first set of rules without any hint of

a violation and spent his time and money accepting the government’s invitation and

coming here to play by those rules. Luring noncitizens here, paroling them for a period

of time, and then telling them “never mind” is just plain wrong—made even worse when

the noncitizens are detained while their cases are heard. And a change in

administration does not justify or excuse such fundamental unfairness.

U.S.C. § 1225(b)(2)(A), as an arriving [noncitizen] detained for a proceeding under §

1229a.” Docket Item 42 at 13 n.7. As the government repeatedly observes, detention

generally is mandatory under section 1225(b). Therefore, the government argues, Mata

Velasquez’s detention still is mandatory.

But there is an exception to that rule: parole. Mata Velasquez was granted

parole for two years. And the revocation of parole is governed by regulations.

“[U]nder deeply rooted principles of administrative law, not to mention common

sense, government agencies are generally required to follow their own regulations.”

Fed. Defs. of New York, Inc. v. Fed. Bureau of Prisons, 954 F.3d 118, 130 (2d Cir.

2020). In United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 266-68 (1954),

for instance, the Supreme Court reversed the dismissal of a habeas petition in which the

petitioner alleged that the BIA had failed to follow its own regulations. “[E]mphasiz[ing]

that [it was] not . . . reviewing and reversing the manner in which discretion was

exercised,” the Court held that the petitioner was entitled to a hearing on “the Board’s

alleged failure to exercise its own discretion, contrary to existing valid regulations.” Id.

at 268. If the petitioner could prove that allegation, the Court held, he would be owed “a

new hearing before the Board” under the proper procedures.7 Id.; see also Augustin,

7 It is true that not every violation of an agency’s rules necessarily requires a

wholesale redoing of agency action. See Waldron v. I.N.S., 17 F.3d 511, 518 (2d Cir.

1993) (“[W]here an INS regulation does not affect fundamental rights derived from the

Constitution or a federal statute, . . . it is best to invalidate a challenged proceeding only

upon a showing of prejudice to the rights sought to be protected by the subject

regulation.”) But as noted above, the same is not true “when a regulation is

promulgated to protect a fundamental right derived from the Constitution or a federal

statute.” Id. And there can be little argument that revocation of parole, which results in

detention, affects the fundamental right of liberty.

735 F.2d at 38 (holding that asylum applicant was entitled to “procedural rights

protected by statute and INS regulations”).

The government therefore does not have the authority to arrest a noncitizen who

has been granted parole without properly terminating that parole, see Y-Z-L-H v.

Bostock, 2025 WL 1898025, at *13 (D. Or. July 9, 2025), or unless there is some other

valid reason to arrest him. The government does not claim that it had any reason to

arrest Mata Velasquez other than the revocation of his parole. See generally Docket

Item 42. So the question, then, is what is required to revoke parole? And has the

government met those requirements?

As an initial matter, it appears that Mata Velasquez was arrested and detained

before he was given any notice that his parole was revoked. See Docket Item 21 at

¶¶ 43-47 (stating the Mata Velasquez was arrested on May 21, 2025, but that it was not

until May 28, 2025, that “[r]espondent Kurzdorfer, the Acting Field Office Director,

issued a letter in English only . . . that terminated his parole pending the outcome of his

removal proceedings”).8 At oral argument, the government was not able to provide a

definitive answer about its authority to detain Mata Velasquez before his parole was

revoked, except to say that that the government intended to place him in expedited

removal proceedings. This Court therefore has little trouble finding that Mata

Velasquez’s arrest on May 21, 2025, was unlawful.

8 As Mata Velasquez observes, “any suggestion that the government has

complied with the parole statute and its regulations because it published [the

Termination] Notice in the Federal Register . . . is plainly wrong on the law,” as the

regulations require “‘written notice to the [noncitizen]’ in order for a parole termination to

be effective.” Docket Item 62 at 10 (emphasis added) (quoting 8 C.F.R.

§ 212.5(e)(2)(i)).

But finding that the government violated Mata Velasquez’s rights when it arrested

him does not end the inquiry. After Mata Velasquez was arrested, the government at

least ostensibly gave him notice of his parole revocation.9 So the Court turns to the

question of whether the manner in which the government revoked Mata Velasquez’s

parole violated his statutory rights.

Section 1182 provides that parole may be granted “only on a case-by-case basis

for urgent humanitarian reasons or significant public benefit.” 8 U.S.C. § 1182(d)(5)(A).

In other words, if a noncitizen has been granted parole, that means some DHS official

with authority decided that there were either “urgent humanitarian reasons” or

“significant public benefit” justifying the parole of that individual. See id.; 8 C.F.R. §

212.5(e)(2)(i). To revoke parole, in turn, a DHS official with authority must decide either

that the “the purpose for which parole was authorized” has been “accomplish[ed]” or

that “neither humanitarian reasons nor public benefit warrants the continued presence

of the [noncitizen]” in the United States.” 8 C.F.R. § 212.5(e)(2)(i).

Several courts have found that just as a grant of parole requires an individualized

review, revocation of parole requires a case-by-case assessment to comply with the

statute. See Y-Z-L-H, 2025 WL 1898025, at *7 (“Common sense suggests . . . that

parole given only on a case-by-case basis is to be terminated only on such a basis.”

(citation omitted)); Doe, 2025 WL 1099602, at *18 (“The statute thus seems to

9 Although Mata Velasquez did not directly raise the argument, the Court has

serious doubts as to whether a letter written only in English constitutes sufficient notice

to a noncitizen who cannot read English. Cf. Augustin, 735 F.2d at 36 (finding that

asylum applicant “was denied procedural rights protected by statute and INS regulations

. . . where the translation of the asylum application was nonsensical” and “the accuracy

and scope of the hearing translation are subject to grave doubt”).

contemplate termination of parole on an individual, rather than categorical, basis. This

makes sense: Even under the categorical programs, grants of parole were to be made

on a case-by-case basis.”). As the Doe court observed, “[t]hroughout the provision,

[s]ection 1182(d)(5)(A) refers in singular, rather than plural, to grants of parole”:

The Secretary of Homeland Security may . . . in h[er] discretion parole into

the United States temporarily under such conditions as [s]he may prescribe

only on a case-by-case basis for urgent humanitarian reasons or significant

public benefit any [noncitizen] applying for admission to the United States,

but such parole of such [noncitizen] shall not be regarded as an admission

of the [noncitizen] and when the purposes of such parole shall, in the

opinion of the Secretary of Homeland Security, have been served the

[noncitizen] shall forthwith return or be returned to the custody from which

he was paroled and thereafter his case shall continue to be dealt with in the

same manner as that of any other applicant for admission to the United

States.

2025 WL 1099602, at *18 (quoting 8 U.S.C. § 1182(d)(5)(A)).

This Court agrees that both common sense and the words of the statute require

parole revocation to be analyzed on a case-by-case basis and that a decision to revoke

parole “must attend to the reasons an individual [noncitizen] received parole.” See id.

There is no indication in the record that the government conducted any such analysis

here. On the contrary, the letter Mata Velasquez received merely stated summarily that

DHS had “revoked [his] parole.” Docket Item 62-1 at 5. Thus, there is no indication

that—as required by the statute and regulations—an official with authority made a

determination specific to Mata Velasquez that either “the purpose for which [his] parole

was authorized” has been “accomplish[ed]” or that “neither humanitarian reasons nor

public benefit warrants [his] continued presence . . . in the United States.” See 8 C.F.R.

§ 212.5(e)(2)(i). As a result, DHS’s revocation of Mata Velasquez’s parole violated his

rights under the statute and regulations. See Y-Z-L-H, 2025 WL 1898025, at *13.

B. Constitutional Rights

So the question becomes to what process—if any—is Mata Velasquez entitled

before DHS can revoke his parole. The regulations mandate “notice,” 8 C.F.R.

§ 212.5(e)(2)(i), but neither the statute nor the regulations provide any other procedural

protections, see id.; 8 U.S.C. § 1182(d)(5)(A). And the government says Mata

Velasquez is entitled only to the rights provided by statute. But Mata Velasquez argues

that the Due Process Clause provides him further procedural protection.

For the reasons that follow, this Court agrees with Mata Velasquez that some

additional process is due. More specifically, this Court finds that Mata Velasquez must

be given “the opportunity to be heard ‘at a meaningful time and in a meaningful

manner.’” Mathews v. Eldridge, 424 U.S. 319, 333 (1976) (quoting Armstrong v. Manzo,

380 U.S. 545, 552 (1965)). And because he has not yet been given any opportunity to

be heard—let alone a meaningful opportunity—his detention is unlawful, and he must

be released.

1. Procedural due process rights for parole revocation

To begin, it is clear—as the government emphasizes—that an “arriving”

noncitizen such as Mata Velasquez “has only those rights regarding admission that

Congress has provided by statute.” See Dep’t of Homeland Sec. v. Thuraissigiam, 591

U.S. 103, 140 (2020) (emphasis added); see also Augustin, 735 F.2d at 36 (“Although

[noncitizens] who petition for admission have no constitutional rights regarding their

applications, they do have such statutory rights as Congress grants.” (emphasis added)

(footnote omitted)). Parole, by its explicit definition in the statute, is not admission. See

8 U.S.C. § 1182 (d)(5)(A) (explaining that “such parole of [a noncitizen] shall not be

regarded as an admission of the [noncitizen]”). So an “arriving” noncitizen may have

rights in connection with his parole.

That being said, the caselaw suggests that no process beyond that outlined in

the statute and regulations generally is required to revoke parole. See Ofosu v.

McElroy, 98 F.3d 694, 700 (2d Cir. 1996) (“His parole is a matter of the Attorney

General’s discretion (and of the opinion of those she appoints) and may be ended

without hearings or special forms.”); Wong Hing Fun v. Esperdy, 335 F.2d 656, 657 (2d

Cir. 1964) (“There is no basis for appellants’ contention that due process requires a

hearing on revocation of parole, even though Congress did not provide one.”). But that

rule is not absolute. And the Second Circuit illustrated that point more than half a

century ago in a case with striking similarities to this one.

In U.S. ex rel. Paktorovics v. Murff, 260 F.2d 610 (2d Cir. 1958), the Second

Circuit held that “[u]nder the special circumstances of the . . . Hungarian refugees [at

issue in that case], we think their parole may not be revoked without a hearing at which

the basis for the discretionary ruling of revocation may be contested on the merits.” Id.

at 612. There, the petitioner—Gyula Paktorovics—and his family had been “invited here

pursuant to the announced foreign policy of the United States as formulated by the

President in his directive of December 1, 1956.” Id. at 614. Describing the case as “sui

generis,” the Second Circuit distinguished it from “other exclusion cases,” such as

Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 212 (1953) and U.S. ex rel.

Knauff v. Shaughnessy, 338 U.S. 537, 544 (1950), which held that “[w]hatever the

procedure authorized by Congress is, it is due process as far as [a noncitizen] denied

entry is concerned.” Paktorovics, 260 F.2d at 613-14. The “invit[ation]” by the

President made this case different, the court said. See id. at 614.

It is true “that the President has no power to change the law by inviting

Paktorovics and the other Hungarian refugees to come here,” the court explained, “but

this is not to say that the tender of such an invitation and its acceptance by him did not

effect a change in the status of Paktorovics sufficient to entitle him to the protection of

our Constitution.” Id. at 614. And “[i]f this means an extension of the doctrine that

[noncitizens] as well as citizens are entitled to the protection of procedural due process

in deportation proceedings so as to include within the protected class . . . parolees who

have come to the United States as have the Hungarian refugees of whom appellant is

merely one of thousands,” the court said, “we do not hesitate to take that forward step,

in view of all the circumstances of this case.” Id. Thus, the court “h[e]ld that, in order to

bring [8 U.S.C.] § 1182(d)(5), ‘into harmony with the Constitution,’ a hearing is required

prior to the revocation of parole when this section is applied to persons situated in the

United States as is appellant in the case at bar.” Id. (footnote omitted). Were that not

the case, the court explained, “any one or all of this large number of Hungarians who

fled from the might of Soviet Russia must leave our shores on the mere say-so of a

[g]overnment official, however unreasonable or capricious this say-so may be, and even

if there is no basis whatever for such a ruling.” Id. at 612.

“Accordingly,” the court concluded, “since a construction of [section] 1182(d)(5),

which requires a hearing on the subject of revocation of parole w[ould] remove serious

doubt regarding the validity of the statute, [it] construe[d] the section and h[e]ld that

appellant [wa]s entitled to a hearing prior to the revocation of his parole.” Id. at 615.

The court ended with this: “We do not say that the discretion of the courts should be

substituted for the discretion to be exercised by the Attorney General as provided by

law. We do say that there must be a hearing which will give assurance that the

discretion of the Attorney General shall be exercised against a background of facts fairly

contested in the open.” Id.

Nearly seventy years later, the government now argues to this Court that

because “due process in this case [is] only what is afforded by statute, [the p]etitioner

lacks any right to release . . . or any justification for his arrest other than the fact that the

statute requires it.” Docket Item 42 at 19. Simply put, this Court “cannot agree that

such is the law.” See Paktorovics, 260 F.2d at 612.

This Court finds that, as in Paktorovics, the circumstances of this case require

some level of constitutional due process before parole can be revoked. Like

Paktorovics, Mata Velasquez and others like him were invited here.10 They spent their

own funds to get here, and they were told that they would have two years of parole.

10 The Eleventh Circuit has distinguished Paktorovics from a case in involving the

Mariel Cubans on the basis that “Congress [thereafter] enacted legislation endorsing the

extraordinary action of the President with respect to these Hungarian refugees.” Id.

Garcia-Mir v. Meese, 788 F.2d 1446, 1451 n.5 (11th Cir. 1986) (quoting Paktorovics,

260 F.2d at 614). According to the Eleventh Circuit, “[e]ven Paktorovics concedes that

the President alone lacks the authority to create such a liberty interest sua sponte.” Id.

(citing Paktorovics, 260 F.2d at 614). This Court disagrees with that reading. See

Paktorovics, 260 F.2d at 614 (“True it is that the President has no power to change the

law by inviting Paktorovics and the other Hungarian refugees to come here, but this is

not to say that the tender of such an invitation and its acceptance by him did not effect a

change in the status of Paktorovics sufficient to entitle him to the protection of our

Constitution.” (emphasis added)).

Nor does the Court find dispositive that in Paktorovics, it was “the President” who

“invited Hungarian refugees to come to the United States,” as opposed to DHS. See

Docket Item 61 at 6. The point is that the government of this country—in fact, the

executive branch—extended an invitation.

While the new administration may think that decision was flat wrong, that does not

eliminate the rights of those who relied on the program instituted by the prior

administration. Cf. Termination Notice, 90 FR 13611-01, 2025 WL 894696, at 13618-20

(outlining reliance interests of those on parole and their supporters).

Moreover, in Paktorovics—unlike here—there was at least some allegation of

wrongdoing to justify the parole revocation. After interviewing Paktorovics several

times, the government determined that he had been a member of the Communist Party

and that he had not been fully truthful about that on his parole application. Paktorovics,

260 F.2d at 611. Here, by contrast, the government appears to concede that Mata

Velasquez has done nothing wrong—except, perhaps, accepting our nation’s invitation

to come here in light of the possibility that a new administration might think that the

invitation never should have been extended and pull the rug out from under him.

At oral argument, the government repeatedly described the decision to terminate

Mata Velasquez’s parole as “political.” And, of course, the new administration is free to

shift policies and change course. But that does not mean it can do so without

complying with the law and due process. Even if the new administration thinks that the

prior administration made a grave error in judgment when it instituted the parole

program, it cannot trample on due process rights in order to terminate it more quickly.

Stated another way, the new administration can change the rules, but it cannot

change them and make up new rules as it goes along when the new rules abridge

constitutional rights. Indeed, as this Court recently stated in a somewhat different

context, “while [DHS] might want to enforce this country’s immigration laws efficiently, it

cannot do that at the expense of fairness and due process.” Ceesay v. Kurzdorfer, ---

F. Supp. 3d ---, 2025 WL 1284720, at *1 (W.D.N.Y. May 2, 2025).

The government’s attempts to distinguish Paktorovics miss the mark. See

Docket Item 61 at 6-8. First, the government says that “[t]he Second Circuit . . . was

mindful of the President’s motive in granting parole to Hungarian nationals in deciding

the case.” Id. at 6 (citing Paktorovics, 260 F.2d at 613). “Here, by contrast,” the

government contends, Mata Velasquez’s “case is not unique, and President Trump has

established that parole was previously granted categorically and instead must be

decided on a case-by-case basis in accordance with the statute providing for such

parole.” Id. “Thus, whereas in Paktorovics[,] the Second Circuit gave weight to the

President’s intention to welcome Hungarian refugees,” the government argues, “so too

should this Court give weight to President Trump’s decision to terminate categorical

parole issued to [noncitizens] like [Mata Velasquez].” Id. at 7.

As an initial matter, Mata Velasquez was not given parole categorically; on the

contrary, he was granted parole on a case-by-case basis. As noted above, Section

1182 provides that parole may be granted “only on a case-by-case basis for urgent

humanitarian reasons or significant public benefit.” 8 U.S.C. § 1182(d)(5)(A). And the

program under which Mata Velasquez came to the United States gave noncitizens the

ability to “seek[], on a case-by-case basis, a discretionary grant of parole at an internal

port of entry.” See Doe, 2025 WL 1099602, at *1 (quoting Implementation of a Parole

Process for Venezuelans, 87 Fed. Reg. 63507 (Oct. 19, 2022)) (emphasis added). And

Mata Velasquez individually was granted discretionary humanitarian parole for two

years to pursue his asylum claim. See Docket Item 21 at ¶ 40. So the government is

just plain wrong in its first attempt to distinguish Paktorovics.

What is more, the Termination Notice “gave no explanation or support for the

conclusion that the CHNV programs were addressing relevant humanitarian concerns

through something other than case-by-case determinations.” See Doe, 2025 WL

1099602, at *17. But even if it had given such an explanation, focusing on the motives

of the new administration misses the point. Every administration of a new president

does not write on a blank slate; on the contrary, the new administration must live with at

least some of the actions of the prior administration. Cf. Torres-Jurado, 2023 WL

7130898, at *4 (“[W]hen an agency changes course, it must be ‘cognizant that

longstanding policies may have engendered serious reliance interests that must be

taken into account,’ and ‘[it] would be arbitrary and capricious to ignore such matters.’”

(quoting Dep’t of Homeland Sec. v. Regents of the Univ. of Calif., 591 U.S. 1, 30

(2020))). And as Mata Velasquez observes, “while [the] new administration may wish to

change course, [his] engendered reliance interest, and his compliance with everything

that the Executive Branch asked of him, entitles him to more than summary arrest and

detention ‘on the mere say-so of a [g]overnment official.’” Docket Item 62 at 3-4

(quoting Paktorovics, 260 F.2d at 612).

The government also asserts that this case is different because “[t]he court’s

holding [in Paktorovics] was based on the fact that absent a hearing on revocation of

parole, the [noncitizen] in that case may have been deported without any hearing at all.”

Docket Item 61 at 7 (citing Paktorovics, 260 F.2d at 615). “Here,” the respondents

claim, “there is no such risk” because they “have been attempting to schedule an

interview for [Mata Velasquez] to determine whether he is entitled to claim asylum.” Id.

And “[i]f so entitled, he may be eligible for relief from removal altogether.” Id.

First, it bears noting that Mata Velasquez is currently appealing the government’s

decision to dismiss his asylum proceedings. So the notion that he may have the

opportunity to petition for asylum again following a CFI does not ease this Court’s due

process concerns. Furthermore, although it is true that the Second Circuit was

concerned with the possibility that Paktorovics could be deported without a hearing, the

decision was focused on the procedures required for revocation of parole. And the

same fundamental fairness issues that motivated that decision apply equally here: this

country cannot invite people here and then give them no process when it arbitrarily

seeks to revoke that invitation. Would Mata Velasquez have come here if he knew that

he might be arrested and imprisoned while his asylum case works its way through the

system despite having done everything that was asked of him on parole? And

regardless of the answer to that question, under these circumstances, he is entitled to

some process before his parole is revoked.

The Supreme Court’s decision in Thuraissigiam does not change the calculus. In

Thuraissigiam, the noncitizen “did not ask to be released. Instead, he sought entirely

different relief: vacatur of his ‘removal order’ and ‘an order directing [the Department] to

provide him with a new . . . opportunity to apply for asylum and other relief from

removal.’” 591 U.S. at 117-18 (footnote omitted). The Supreme Court rejected the

petitioner’s claim that he was entitled to constitutional due process in his expedited

removal proceeding.

The Court explained that the petitioner’s argument “disregard[ed] the reason for

our century-old rule regarding the due process rights of [a noncitizen] seeking initial

entry.” Id. at 139 (emphasis added). “That rule rests on fundamental propositions,” the

Court explained: “[T]he power to admit or exclude [noncitizens] is a sovereign

prerogative; the Constitution gives the political department of the government plenary

authority to decide which [noncitizens] to admit; and a concomitant of that power is the

power to set the procedures to be followed in determining whether [a noncitizen] should

be admitted.” Id. (emphasis added) (internal citations and quotation marks omitted).

The Court then explained that under the expedited removal statute, “Congress provided

the right to a ‘determin[ation]’ whether [the noncitizen] had ‘a significant possibility’ of

‘establish[ing] eligibility for asylum,’ and he was given that right.” Id. at 140 (citing 8

U.S.C. §§ 1225(b)(1)(B)(ii), (v)). “Because the Due Process Clause provides nothing

more,” the Court concluded, “it does not require review of that determination or how it

was made.” Id.

While Thuraissigiam forecloses the argument that Mata Velasquez has due

process rights beyond those provided by statute concerning the process for deciding

whether or not he will be admitted to this country, it does not foreclose his arguments

regarding parole revocation and release.11 See Padilla v. U.S. Immigr. & Customs Enf’t,

704 F. Supp. 3d 1163, 1171 (W.D. Wash. 2023) (rejecting argument that court should

“extract from Thuraissigiam a broad rule that any inadmissible noncitizen possesses

11 This Court agrees with the government that with respect to Mata Velasquez’s

right to admission, he is treated as if he had just arrived at the border. See

Thuraissigiam, 591 U.S. at 139 (explaining that noncitizens “who arrive at ports of

entry—even those paroled elsewhere in the country for years pending removal—are

‘treated’ for due process purposes ‘as if stopped at the border’”).

only those due process rights afforded to them by statute, regardless of the nature of

their status or the relief they seek” as “such a conclusion is untethered to the claim in

Thuraissigiam and the Court’s reasoning”).12 And the respondents “present no cogent

reason why the Court should extend this limited holding to any noncitizen within the

immigration process regardless of the legal challenge presented.” Id. at 1172.

Indeed, as this Court previously observed in the context of prolonged detention,

“[a]lthough [noncitizens] ‘on the threshold of initial entry’ may have fewer due process

rights than other ‘persons,’ the government’s argument—that Mezei’s [statement] that

‘[w]hatever the procedure authorized by Congress is due process as far as [a

noncitizen] denied entry is concerned,’ is to be taken literally—cannot be correct.”

Clerveaux v. Searls, 397 F. Supp. 3d 299, 316 (W.D.N.Y. 2019) (internal citations

omitted); see also Birch v. Decker, 2018 WL 794618, at *6 (S.D.N.Y. Feb. 7, 2018) (“As

a threshold matter, it is clear that [noncitizens] detained on U.S. soil, regardless of

whether they have been formally ‘admitted’ under [8 U.S.C.] § 1101(a)(13)(A), are

entitled to some due process protection. That protection is undoubtedly diminished—

both vis-à-vis citizens and immigrants who have effected an entry (legally or illegally)—

but it nonetheless exists in some form.” (emphasis added)). Were it true that “arriving”

noncitizens have no due process rights, it would mean that such individuals—including

12 This Court recognizes that another court in this district has read Thuraissigiam

as foreclosing a due process argument concerning detention. See Gonzales Garcia v.

Rosen, 513 F. Supp. 3d 329, 334 (W.D.N.Y. 2021) (Wolford, J.) (rejecting argument

“that Thuraissigiam does not apply to challenges to detention, but is limited to the claims

of individuals challenging admission decisions”). “While Thuraissigiam was decided in

the admission context,” Judge Wolford explained, “it cited and reaffirmed the continuing

vitality of Mezei, which addressed the issue of detention.” Id. But Gonzales Garcia did

not concern parole revocation. And because Paktorovics distinguished Mezei,

Thuraissigiam does not preclude this Court from following Paktorovics here.

those living freely among us on parole—could “be subjected to the punishment of hard

labor without a judicial trial.” Clerveaux, 397 F. Supp. 3d at 316 (quoting Zadvydas v.

Davis, 533 U.S. 678, 704 (2001) (Scalia, J., dissenting)). And it would mean that a

noncitizen living here on parole could be taken into custody and beaten by local police

without any violation of the Fourth Amendment. That cannot be the law.

Moreover, Thuraissigiam relies on Mezei for the proposition that noncitizens “who

arrive at ports of entry—even those paroled elsewhere in the country for years pending

removal—are ‘treated’ for due process purposes ‘as if stopped at the border.’” 591 U.S.

at 139 (quoting Mezei, 345 U.S. at 215). As explained above, however, Paktorovics

distinguished Mezei because the petitioner and his family had been “invited here

pursuant to the announced foreign policy of the United States.” 260 F.2d at 613-14.

So, too, was Mata Velasquez invited here—which was not the case for the petitioner in

Thuraissigiam. Thus, nothing in Thuraissigiam overrules Paktorovics.

2. Mathews v. Eldridge analysis

Having found that some constitutional due process is required before parole can

be revoked in this circumstance, the question becomes what level of process? And the

answer to that question is governed by the balancing test outlined in Mathews v.

Eldridge, 424 U.S. 319 (1976).13

As the Court in Mathews explained, “[t]he fundamental requirement of due

process is the opportunity to be heard ‘at a meaningful time and in a meaningful

manner.’” Id. at 333 (quoting Armstrong v. Manzo, 380 U.S. 545, 552 (1965)).

13 Because Paktorovics was decided prior to Mathews, it did not employ the

applicable balancing test in determining whether a hearing was required.

“[I]dentification of the specific dictates of due process generally requires consideration

of three distinct factors”: (1) “the private interest that will be affected by the official

action”; (2) “the [g]overnment’s interest, including the function involved and the fiscal

and administrative burdens that the additional or substitute procedural requirement

would entail,” and (3) “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. at 335.

This Court agrees with Mata Velasquez that “[t]he first Mathews factor weighs

heavily in [his] favor.” Docket Item 23 at 13. As this Court has previously and

repeatedly observed, a noncitizen’s “interest in his freedom pending the conclusion of

his removal proceedings deserves great ‘weight and gravity.’” Clerveaux, 397 F. Supp.

3d at 309 (quoting Addington v. Texas, 441 U.S. 418, 427 (1979)). Indeed, “the interest

in being free from imprisonment” is “the most significant liberty interest there is.” Black

v. Decker, 103 F.4th 133, 151 (2d Cir. 2024) (quoting Velasco Lopez v. Decker, 978

F.3d 842, 851 (2d Cir. 2020)); see also Foucha v. Louisiana, 504 U.S. 71, 80 (1992)

(“We have always been careful not to minimize the importance and fundamental nature

of the individual's right to liberty.” (citation and internal quotation marks omitted)). And

that is especially so here where Mata Velasquez followed all the rules and “[t]he

deprivation that [he] experienced was not the result of a criminal adjudication,” see

Velasco Lopez, 978 F.3d at 851, or even the suggestion that he did anything that was

wrong in any way.

The government has weighty interests as well. “First, because [Mata Velasquez]

was paroled into the country without authority to enter, his release into the United States

would implicate the authority of the government to manage who may enter the country.”

Clerveaux, 397 F. Supp. 3d at 310. The government also “has an interest in detaining

[noncitizens] ‘to ensure that [they] will be available if [they are] determined to be

deportable’” and “in efficient administration of the immigration laws at the border.”

Rodriguez-Figueroa v. Barr, 442 F. Supp. 3d 549, 564 (W.D.N.Y. 2020) (first quoting

Doherty v. Thornburgh, 943 F.2d 204, 211 (2d Cir. 1991), and then quoting Landon v.

Plasencia, 459 U.S. 21, 34 (1982)). And “it must weigh heavily in the balance that

control over matters of immigration is a sovereign prerogative, largely within the control

of the executive and the legislature.” Landon, 459 U.S. at 34. Additionally, the

government has an interest in the “fiscal and administrative burdens that the additional

or substitute procedural requirement would entail.” Mathews, 424 U.S. at 335. There is

no question that all of these are strong interests, and the Court treats them as such.

The Court then turns to the risk of erroneous deprivation without additional

procedures, and the Court finds that the risk is indeed high. DHS has announced that it

intends to revoke parole for everyone like Mata Velasquez without any regard for

individual circumstances. See Termination Notice, 90 FR 13611-01, 2025 WL 894696,

at 13612. Thus, “any attempt to secure release through ICE’s limited parole procedures

would be futile.” See Docket Item 62 at 5. To mitigate the risk of erroneous deprivation,

due process requires, “at [a] minimum, the opportunity for [Mata Velasquez] to submit

evidence relevant to whether [the government] should revoke [his parole] before [it]

make[s] a revocation decision.” See Torres-Jurado, 2023 WL 7130898, at *4. And

although “procedural requirements can seem like a mere formality, they promote

‘agency accountability’ and ensure that the parties—and where relevant, the public—

can respond fully and in a timely manner to an agency’s exercise of authority.” Id.

(quoting Regents, 591 U.S. at 22-23).

Despite the government’s previous finding to the contrary, it has not provided “a

reasoned explanation or any changed circumstances,” see Y-Z-L-H, 2025 WL 1898025,

at *13, that would support a decision that “neither humanitarian reasons nor public

benefit warrants [Mata Velasquez’s] continued presence . . . in the United States,” see 8

C.F.R. § 212.5(e)(2)(i).14 Nor has Mata Velasquez been given any opportunity to be

heard, let alone a meaningful opportunity. His detention therefore violates due process,

and he is likely to succeed on the merits of his claim. Cf. Torres-Jurado, 2023 WL

7130898, at *4 (finding that revocation of ICE stay violated due process when agency

did not “provide[ the p]laintiff with an explanation why the ICE [s]tay had been annulled

nor an opportunity to provide any facts relevant to their decision to revoke the ICE

[s]tay”).

V. IRREPARABLE HARM AND BALANCE OF THE EQUITIES

Having found that Mata Velasquez is likely to succeed on the merits of his claim,

this Court easily finds that the other two prongs of preliminary injunction test are met.

First, there is no question that unlawful detention causes irreparable harm, and the

government’s argument to the contrary is deeply troubling. See Docket Item 42 at 23

(arguing that Mata Velasquez “fails to realize that his purported deprivation of liberty is a

part of the immigration process for arriving [noncitizens] without authorization to enter

14 As Mata Velasquez is still in section 240 proceedings, it is hard to see how the

government could say that “the purpose for which parole was authorized” has been

“accomplish[ed].” See 8 C.F.R. § 212.5(e)(2)(i).

the United States”). Certainly, the government’s statement that detention is mandatory

is relevant to its argument on the likelihood of success on the merits. But for the

government to argue that anyone’s detention—let alone someone who has never been

incarcerated, who came here in response to an invitation and was promised two years

of parole, and who has followed all the rules—does not cause irreparable harm deeply

troubles this Court.

Likewise, there is little question that the balance of the equities and the public

interest favors granting an injunction. Mata Velasquez followed all the rules. On the

other hand, the government changed the rules by fiat, applied them retroactively, and

pulled the rug out from under Mata Velasquez and many like him who tried to do things

the right way. Moreover, every day that Mata Velasquez is detained harms him. And

while it will of course be an added burden to the government to provide a meaningful

opportunity to be heard, this Court finds that burden to be minimal given the magnitude

of what the executive branch seeks to do with parolees like Mata Velasquez.15

* * *

In sum, Mata Velasquez is likely to succeed on the merits of his claim that his

detention violates his right to due process, his continued detention irreparably harms

him every minute he is detained, and the balance of the equities tips decidedly in his

favor. He therefore must be released, and the respondents may not re-detain him

15 Because this Court grants release on this basis, it need not and does not reach

Mata Velasquez’s remaining arguments, including those regarding the legality of

courthouse arrests.

unless and until they have demonstrated that they have given him a meaningful

opportunity to be heard.16

CONCLUSION

For the reasons explained above, Mata Velasquez’s motion for a preliminary

injunction, Docket Item 23, is GRANTED. Within 24 hours of the issuance of this order,

Mata Velasquez must be released. The respondents are ENJOINED from re-detaining

Mata Velasquez without leave of this Court, which the Court will grant only if and when

the respondents demonstrate that they have complied with this order and provided Mata

Velasquez with the process he is due.17

16 Mata Velasquez says he is entitled to “a prompt hearing in which the

government must show a material change in circumstances specific to [him].” Docket

Item 23 at 15. “In this hearing,” Mata Velasquez says, he “must have the opportunity to

rebut the government’s showing, and a neutral decision maker must have the ability to

order a return to the status quo.” Id.; see Valdez, 2025 WL 1707737, at *3-4 (finding

that “ongoing detention of [the p]etitioner”—who had previously been “released . . . on

his own recognizance”—“with no process at all, much less prior notice, no showing of

changed circumstances, or an opportunity to respond, violates his due process rights”);

Lopez v. Sessions, 2018 WL 2932726, at *12 (S.D.N.Y. June 12, 2018) (finding that “re-

detention [of noncitizen who arrived as a minor but subsequently reached the age of

majority], without prior notice, a showing of changed circumstances, or a meaningful

opportunity to respond, does not satisfy the procedural requirements of the Fifth

Amendment”). As noted above, at this point, Mata Velasquez has been provided with

no opportunity to be heard whatsoever. Mindful of its limitations, this Court declines to

weigh in on the type of process that must be provided. Suffice it to say that he must be

given some meaningful opportunity to be heard. The Court will revisit the required

details if that becomes necessary.

17 Along with its response to the motion for a preliminary injunction, the

government also moved to dismiss the amended petition. See Docket Item 42. To the

extent that the government’s motion to dismiss pertains to Mata Velasquez’s procedural

due process claim, it is denied. The Court will schedule a status conference to discuss

the status of the remaining claims in the petition.

SO ORDERED.

Dated: July 16, 2025

Buffalo, New York

/s/ Lawrence J. Vilardo

LAWRENCE J. VILARDO

UNITED STATES DISTRICT JUDGE