Lieogo

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

___________________________________

ALI LIEOGO,

Petitioner, DECISION AND ORDER

v. 6:25-CV-06615 EAW

JOSEPH FREDEN, in his official capacity

as Deputy Field Office Director, Buffalo

Field Office, U.S. Immigration & Customs

Enforcement, et al.,

Respondents.

____________________________________

INTRODUCTION

Because of a “policy change” by the current executive administration, reversing

decades of past practice and reinterpreting a law that traditionally applied to noncitizens

stopped at the border, Petitioner Ali Lieogo (“Lieogo”), who has been residing in this

country for more than two years, was taken into custody almost two months ago by

Immigration and Customs Enforcement (“ICE”). He is detained at the Buffalo Federal

Detention Facility (“BFDF”) in Batavia, New York.

Pending before the Court is Lieogo’s petition under 28 U.S.C. § 2241 (Dkt. 1) and

emergency motion for a temporary restraining order (“TRO”) (Dkt. 2), and Respondents’

motion to dismiss (Dkt. 7). For the reasons set forth below, the petition is granted to the

extent that Respondents must provide Lieogo a bond hearing before an immigration judge

(“IJ”) consistent with the terms of the Order issued by the Court on November 21, 2025.

(Dkt. 9). The emergency motion for a TRO is denied as moot, and Respondents’ motion

to dismiss is denied.

BACKGROUND

A. Factual Background

Lieogo is a 38-year-old citizen of Burkina Faso. (Dkt. 1 at 3). He entered this

country without inspection on or about May 2, 2023, was released from ICE custody on

his own recognizance, and was issued a Notice to Appear in Immigration Court. (Id.; Dkt.

1-1). In December 2023, Lieogo filed an I-589 Application for Asylum, Withholding of

Removal, and Protection Under the Convention Against Torture. (Dkt. 1 at 3). Although

initially denied relief by an IJ, an appeal of that denial remains pending with the Board of

Immigration Appeals (“BIA”). (Id.).

Lieogo possesses valid employment authorization and has been working as a retail

clerk. (Id. at 10). He has no criminal record. (Id.). But on October 13, 2025, he was taken

into custody and has been held since that time with no bond hearing. (Id. at 3, 10-11).

Lieogo is being held at the BFDF. (Id. at 4).

B. Procedural Background

Represented by counsel, Lieogo filed his petition for a writ of habeas corpus

pursuant to 28 U.S.C. § 2241 on October 27, 2025. (Dkt. 1). The same day he sought a

TRO “to require his release or for a bond hearing on the merits to be held by Respondents

within 7 days. . . .” (Dkt. 2 at 2). Consistent with the scheduling order issued by the Court

(Dkt. 3), Respondents filed a motion to dismiss (Dkt. 7), and Lieogo filed papers in

opposition (Dkt. 8). Oral argument was held before the undersigned on November 21,

2025. (Dkt. 10). As announced at the conclusion of the oral argument, the Court issued

an Order that same day granting the petition to the extent that Lieogo sought a prompt bond

hearing and denying the motion to dismiss. (Dkt. 9). This Decision and Order sets forth

the reasons for the Court’s ruling in more detail.

ANALYSIS

As detailed in the decision issued by the undersigned on November 24, 2025, in

Quituizaca Quituisaca v. Bondi et al., No. 6:25-CV-6527-EAW, 2025 WL 3264440

(W.D.N.Y. Nov. 24, 2025), a “change in policy” by the current executive administration

has caused noncitizens residing in this country to be held in custody without bond based

on a law historically used to detain noncitizens at the border (8 U.S.C. § 1225(b)(2)). This

Court, like most to have considered the issue,1 has concluded that the law does not allow

for what Respondents claim, and rather a noncitizen like Lieogo is held pursuant to 8

U.S.C. § 1226(a) and thus, entitled to a bond hearing. The Court relies on the reasoning

set forth in Quituizaca Quituisaca to support its conclusion that § 1225(b)(2) does not apply

here, and furthermore any argument that Lieogo must administratively exhaust his

remedies is without merit. The Court further addresses below additional issues not

addressed in Quituizaca Quituisaca—the jurisdictional defenses raised by Respondents

and application of the three-factor balancing test established in Mathews v. Eldridge, 424

1 According to a decision issued on November 20, 2025, at least 282 decisions from

district courts have found the application of § 1225(b)(2)(A) to noncitizens residing in the

United States unlawful. Patel v. McShane, No. CV 25-5975, 2025 WL 3241212, at *1

(E.D. Pa. Nov. 20, 2025). By contrast, counsel represented at oral argument in this matter

that only three decisions have favored the government.

U.S. 319 (1976), to ascertain the scope of the bond hearing that must be provided to

Lieogo.2

A. Jurisdictional Arguments

In support of their motion to dismiss, Respondents argue that 8 U.S.C.

§§ 1252(e)(3), 1252(g), and 1252(b)(9) each bar review of Lieogo’s claims. (Dkt. 7-1 at

5-10). For the reasons that follow, the Court disagrees.

1. 8 U.S.C. § 1252(e)(3)

Section 1252(e)(3)(A) provides that “[j]udicial review of determinations under

section 1225(b) of this title and its implementation is available in an action instituted in the

United States District Court for the District of Columbia. . . .”3 Respondents argue that

Lieogo seeks judicial review of a written policy or guideline implementing § 1225(b)(2),

and thus his claims are covered by § 1252(e)(3)(A)(ii) and must be commenced, if at all,

in the District of Columbia District Court. (Dkt. 7-1 at 5-6). The Court disagrees.

As an initial matter, § 1252(e)(3) is titled “Challenges on validity of the system.”

But Lieogo “does not raise any systemic challenges, nor does he challenge the

implementation of section 1225(b)(2).” Duvallon Boffill v. Field Office Director, No. 25-

CV-25179-JB, 2025 WL 3246868, at *2 (S.D. Fla. Nov. 20, 2025); see also Canedo

2 The petitioner in Quituizaca Quituisaca had been granted bond by an IJ under §

1226(a) so there was no need to engage in the Mathews analysis. In addition, Respondents

did not raise the jurisdictional defenses in support of their motion to dismiss in that case.

3 The title of § 1252(e) is “Judicial review of orders under section 1225(b)(1)” and

thus, there is an argument that subparagraph (3) only applies to § 1225(b)(1), not

§ 1225(b)(2). But unlike subparagraphs (1) and (2) under § 1252(e), the text of

subparagraph (3) references § 1225(b), not just § 1225(b)(1).

Cardozo v. Noem et al., No. 1:25-CV-1415, 2025 WL 3274381, at *2 (W.D. Mich. Nov.

25, 2025). Rather, Lieogo’s petition “challenges the lawfulness of his detention without a

bond hearing, not the validity of the statutory scheme itself.” Duvallon Boffill, 2025 WL

3246868, at *2; see also Mata Velasquez v. Kurzdorfer, No. 25-CV-493-LJV, 2025 WL

1953796, at *6-7 (W.D.N.Y. July 16, 2025) (rejecting § 1252(e)(3) jurisdictional

argument).

In addition, because by its express terms § 1252(e)(3) is limited to determinations

under § 1225(b), and the Court has concluded that § 1225(b) does not apply to Lieogo’s

detention, § 1252(e)(3) does not deprive the Court of jurisdiction. Duvallon Boffill, 2025

WL 3246868, at *2 (collecting cases holding the same).

2. 8 U.S.C. § 1252(g)

Section 1252(g) states that notwithstanding any other provision of law, including 28

U.S.C. § 2241, “no court shall have jurisdiction to hear any cause or claim by or on behalf

of any alien arising from the decision or action by the Attorney General to commence

proceedings, adjudicate cases, or execute removal orders against any alien under this

chapter.” Respondents argue the “Secretary of Homeland Security’s decision to commence

removal proceedings, including the decision to detain an alien pending such removal

proceedings, squarely falls within this jurisdictional bar.” (Dkt. 7-1 at 6 (emphasis in

original)). The Court disagrees.

Respondents have “dramatically overstate[d] the reach of § 1252(g). . . .” Mahdawi

v. Trump, 136 F.4th 443, 450 (2d Cir. 2025) (holding that unlawful detention claims are

collateral to removal process and fall outside § 1252(g)’s narrow jurisdictional bar). The

provision’s “bar on jurisdiction is ‘narrow[]’ and ‘applies only to three discrete actions’: a

decision ‘to “commence proceedings, adjudicate cases, or execute removal orders.”’” Id.

(citations omitted) (emphasis in original).

As Judge Lawrence J. Vilardo of this District explained in Mata Velasquez, when

rejecting a similar argument based on § 1252(g):

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.’” “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.” Thus, district courts can—and do—entertain

challenges to the procedural processes that the executive branch follows

during the removal process.

2025 WL 1953796, at *6 (citations omitted). Here, Lieogo does not seek to prevent the

executive branch’s commencement of a proceeding (or its adjudication of a case or

execution of a removal order). Rather, he seeks to prevent his detention without due

process and in violation of the law. “[D]etention is but one of ‘many . . . decisions or

actions that may be part of the deportation process,’ but it is outside the ‘three discrete

actions’ § 1252(g) cordons off.” Ozturk v. Hyde, 155 F.4th 187, 208 (2d Cir. 2025)

(concurring opinion denying rehearing en banc) (quoting Reno v. Am.-Arab Anti-

Discrimination Comm., 525 U.S. 471, 482 (1999)). Thus, § 1252(g) does not bar the

Court’s consideration of Lieogo’s petition.

3. 8 U.S.C. § 1252(b)(9)

Section 1252(b)(9) states as follows:

Judicial review of all questions of law and fact, including interpretation and

application of constitutional and statutory provisions, arising from any action

taken or proceeding brought to remove an alien from the United States under

this subchapter shall be available only in judicial review of a final order under

this section. Except as otherwise provided in this section, no court shall have

jurisdiction, by habeas corpus under section 2241 of Title 28 or any other

habeas corpus provision, by section 1361 or 1651 of such title, or by any

other provision of law (statutory or nonstatutory), to review such an order or

such questions of law or fact.

Relying on this provision, Respondents argue that taken together with § 1252(a)(5) (stating

that “a petition for review filed with an appropriate court of appeals in accordance with this

section shall be the sole and exclusive means for judicial review of an order of

removal. . . .”), this means that “any issue—whether legal or factual—arising from any

removal-related activity can be reviewed only” in a court of appeals. (Dkt. 7-1 at 8 (quoting

J.E.F.M. v. Lynch, 837 F.3d 1026, 1031 (9th Cir. 2016) (emphasis in original)). According

to Respondents, because Lieogo “challenges the decision and action to detain him” and

because that detention “arises from DHS’s decision to commence removal proceedings,”

then the detention is “an ‘action taken . . . to remove him from the United States,’” and this

Court’s consideration of the challenge is barred by § 1252(b)(9). (Dkt. 7-1 at 9).

Respondents’ position is fatally flawed. First, “the language of § 1252(b)

contradicts the government . . . [because it] sets out requirements only with respect to

review of an order of removal. . . .” Mahdawi, 136 F.4th at 451 (cleaned up). “No order

of removal is at issue here.” Id. at 452; (see Dkt. 8 at 2 (“In the instant case, there is no

final order of removal in place, and Petitioner is detained by ICE pending final resolution

of his immigration proceedings.”)).

Second, Respondents’ position is not supported by Supreme Court precedent. See,

e.g., Zadvydas v. Davis, 533 U.S. 678, 688 (2001) (“We conclude that § 2241 habeas corpus

proceedings remain available as a forum for statutory and constitutional challenges to post-

removal-period detention.”); see also Dep’t of Homeland Sec. v. Regents of the Univ. of

California, 591 U.S. 1, 19 (2020) (Ҥ 1252(b)(9) does not present a jurisdictional bar where

those bringing suit are not asking for review of an order of removal, the decision to seek

removal, or the process by which removability will be determined.” (cleaned up)); Jennings

v. Rodriguez, 583 U.S. 281, 295 n.3 (2018) (“The question is not whether detention is an

action taken to remove an alien but whether the legal questions in this case arise from such

an action. . . . [T]hose legal questions are too remote from the actions taken to fall within

the scope of § 1252(b)(9).”). Indeed, Respondents’ position conflicts with the one they

have taken in other cases where they have acknowledged that the Court has jurisdiction

over a petitioner’s detention. See, e.g., Ahmed v. Freden, 744 F. Supp. 3d 259, 264

(W.D.N.Y. 2024) (“Respondent does ‘not dispute that this Court has subject matter

jurisdiction over Petitioner’s challenge to his continued detention in custody.’”).

Lieogo’s claims may be resolved without affecting any pending removal

proceedings. Lieogo challenges his detention in violation of due process and the law, and

those issues concerning “the lawfulness of his detention and his right to a bond hearing are

distinct from the merits of his removeability.” Aguilar v. English et al., No. 3:25-CV-898

DRL-SJF, 2025 WL 3280219, at *5 (N.D. Ind. Nov. 25, 2025). Thus, this Court joins the

numerous courts throughout the country that have concluded § 1252(b)(9) does not operate

as a jurisdictional bar to a claim like the one asserted in Lieogo’s petition. See id.

(§ 1252(b)(9) did not bar review of petition challenging detention under § 1225(b) instead

of § 1226(a)); Cardozo, 2025 WL 3274381, at *3 (same); Romero Sanchez v. Larose et al.,

No. 25-CV-3136 JLS (JLB), 2025 WL 3268590, at *2-3 (S.D. Cal. Nov. 24, 2025) (same);

Vasquez Juarez v. Noem et al., No. 5:25-CV-02972-RGK-JC, 2025 WL 3251658, at *2

(C.D. Cal. Nov. 21, 2025) (same); Duvallon Boffill, 2025 WL 3246868, at *4 (same); Rusu

v. Noem et al., No. 25 C 13819, 2025 WL 3240911, at *3 (N.D. Ill. Nov. 20, 2025) (same);

Patel, 2025 WL 3241212, at *2 (same); Estrada Elias v. Night et al., No. 1:25-CV-00594-

BLW, 2025 WL 3228262, at *4 (D. Idaho Nov. 19, 2025) (same); Maldonado v. Baker,

No. CV 25-3084-TDC, 2025 WL 2968042, at *3-4 (D. Md. Oct. 21, 2025) (same); Patel

v. Crowley, No. 25 C 11180, 2025 WL 2996787, at *2 (N.D. Ill. Oct. 24, 2025) (same).

B. Mathews v. Eldridge

“In the Second Circuit, the balancing test laid out by the Supreme Court in Mathews

v. Eldridge . . . applies when determining the ‘adequacy of process in the context of civil

immigration confinement.’” Hyppolite v. Noem, No. 25-CV-4304 (NRM), 2025 WL

2829511, at *13 (E.D.N.Y. Oct. 6, 2025) (citation omitted). The three Mathews 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 Government’s

interest, including the function involved and the fiscal and administrative burdens that the

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

This Court has previously expressed the view that due process requires the government to

bear the burden of proving by clear and convincing evidence that detention is justified at a

bond hearing under § 1226(a). Adejola v. Barr, 408 F. Supp. 3d 284, 287 (W.D.N.Y.

2019);4 see also Onosamba-Ohindo v. Searls, 678 F. Supp. 3d 364, 374 n.2 (W.D.N.Y.

2023), appeal pending No. 23-6804 (2d Cir.). The Court recognizes that in Velasco Lopez

v. Decker, 978 F.3d 842 (2d Cir. 2020), the Second Circuit held that the petitioner’s

prolonged incarceration “for fifteen months without an end in sight or a determination that

he was a danger or flight risk, violated due process,” id. at 855, and that the case did not

require the court “to establish a bright-line rule for when due process entitles an individual

detained under § 1226(a) to a new bond hearing with a shifted burden,” id. at 855 n.13.

4 To the extent the undersigned expressed the view in Adejola that it lacked

jurisdiction to restrain the government from transferring a petitioner outside the Court’s

jurisdiction, 408 F. Supp. 3d at 287-88, the Court agrees with Judge Vilardo of this District

that “more recent caselaw has caused this Court to reconsider that position,” Alvarez Ortiz

v. Freden et al., No. 25-CV-960-LJV, 2025 WL 3085032, at *2 n.3 (W.D.N.Y. Nov. 4,

2025); see also Mahdawi, 136 F.4th at 455-56 (declining to issue writ of mandamus

seeking to hold district court lacked authority to order petitioner’s transfer). The Court has

observed firsthand in its handling of the numerous petitions filed based on the executive

branch’s new interpretation of § 1225(b)(2), that allowing a petitioner to be transferred

outside the Court’s jurisdiction impedes the efficient and effective resolution of the

pending habeas corpus petition. The repeated and frequent transfers of petitioners

undermine the petitioners’ access to counsel and ability to participate in the habeas corpus

proceedings. See 28 U.S.C. § 2243 (“Unless the application for the writ and the return

present only issues of law the person to whom the writ is directed shall be required to

produce at the hearing the body of the person detained.”). Thus, at least pending a

resolution of the issues in the petition, the Court concludes that it does have jurisdiction to

require Lieogo to be kept in the District in order to facilitate the resolution, ensure his

ability to fully participate, and not interfere with his access to counsel. See also Estrada

Elias, 2025 WL 3228262, at *4 (“District courts in immigration habeas actions thus retain

the inherent equitable authority to restrict the transfer of petitioners during the pendency

of the proceedings.”).

But even though Lieogo has not been detained anywhere near the length of time in Velasco

Lopez, under the circumstances here, “[g]iven the significant liberty interest at stake, the

high risk of erroneous deprivation, and Respondents’ failure to show a significant interest

in [his] detention,” Lopez Benitez v. Francis, No. 25 CIV. 5937 (DEH), 2025 WL 2371588,

at *13 (S.D.N.Y. Aug. 13, 2025), the Court concludes that Respondents’ ongoing detention

of Lieogo “with no process at all, much less prior notice, no showing of changed

circumstances, or opportunity to respond,” id., violates due process and thus requires a

bond hearing be provided where the government bears the burden of proof.

To be clear, notwithstanding its prior determinations, the Court has applied the

Mathews v. Eldridge factors to Lieogo’s situation. As for the first factor, Lieogo’s private

interest “is the most significant liberty interest there is—the interest in being free from

imprisonment.” Black v. Decker, 103 F.4th 133, 151 (2d Cir. 2024) (quoting Velasco

Lopez, 978 F.3d at 851). The BFDF, “while perhaps not akin to a maximum-security

prison,” is not “meaningfully different from at least a low-security penal institution for

criminal detention.” Wilson v. Barr, No. 1:19-CV-01364 EAW, 2020 WL 13554798, at

*7 (W.D.N.Y. May 1, 2020). And Lieogo’s liberty interest is even more heightened

because the deprivation of his liberty is not the result of any criminal adjudication. See

Alvarez Ortiz, 2025 WL 3085032, at *13 (“[I]t is important to recognize that the

deprivation of liberty that individuals detained under section 1226(a) experience is ‘not the

result of a criminal adjudication.’ This, too, heightens [the petitioner’s] interest in his

liberty.” (citation omitted)).

Consideration of the second factor leads the Court to the conclusion that “the risk

of erroneous deprivation is particularly high here.” Lopez Benitez, 2025 WL 2371588, at

*12. Lieogo’s “‘re-detention without’ any individualized assessment such as ‘any change

in circumstances or procedure establishes a high risk of erroneous deprivation of his

protected liberty interest.’” Id. This is underscored by Respondents’ detention of Lieogo

under a newly-imposed interpretation of § 1225(b)(2) “that runs counter to precedent and

decades of past practice.” Alvarez Ortiz, 2025 WL 3085032, at *14. In other words, even

though Lieogo was released on his own recognizance some two years ago, Respondents

took him into custody without any change in circumstances or individualized assessment,

and have held him in custody without any bond hearing or due process.

As for the third factor, the Court acknowledges that the government’s discretion to

detain individuals under § 1226(a) ‘“is valid where it advances a legitimate governmental

purpose,’ such as ‘ensuring the appearance of aliens at future immigration proceedings and

preventing danger to the community.’” Lopez Benitez, 2025 WL 2371588, at *12. But

there is nothing in the record demonstrating that Lieogo presents those risks. Again, after

arriving at the border in May 2023, he was released from ICE custody on his own

recognizance—a result that could not have been validly achieved unless ICE “did not

consider him to be a flight risk or danger to the community. . . .” Id. Nothing in the record

suggests that ICE’s assessment has changed and, in fact, there is no individualized

assessment in the record supporting Lieogo’s detention. Rather, if it was not for a policy

change reversing decades of past practice, Lieogo would not be detained.

Thus, in order to comply with due process, Lieogo must be afforded a bond hearing

before an IJ at which Respondents shall have the burden to demonstrate dangerousness or

flight risk by clear and convincing evidence. In deciding whether Respondents have met

their burden of proof, the IJ must consider whether less-restrictive alternatives to detention

can reasonably address the government’s interest in Lieogo’s continued detention. In

addition, if the IJ finds that Respondents have not met this burden, then in setting any bond

the IJ must consider Lieogo’s ability to pay and alternative conditions of release.

CONCLUSION

For the foregoing reasons, the petition is granted to the extent that Petitioner seeks

a bond hearing that shall be conducted in accordance with the terms of the Court’s Order

entered on November 21, 2025. (Dkt. 9). The emergency motion for a TRO (DKt. 2) is

denied as moot, and Respondents’ motion to dismiss (Dkt. 7) is denied.

SO ORDERED.

ELIZABETHA. WOLFORD

Chief Judge

United States District Court

Dated: November 26, 2025

Rochester, New York

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