Newman

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

ROBERTO ANTONIO CABRERA

MARTINEZ,

Petitioner, 25-CV-1110-LJV

DECISION & ORDER

v.

TAMMY MARICH et al.,1

Respondents.

When noncitizens come to the United States without a valid visa or other

authority and are stopped at or near the border, they typically are taken into custody

under 8 U.S.C. § 1225(b). Once in custody, they may be deported immediately under a

process known as “expedited removal,” or they may be detained pending more fulsome

deportation proceedings. See Jennings v. Rodriguez, 583 U.S. 281, 287-88 (2018).

Under section 1225, detention is mandatory and noncitizens cannot be released

pending deportation proceedings, expedited or otherwise. See id.

But there is one exception: in the discretion of the executive branch, noncitizens

subject to mandatory detention under section 1225 can nonetheless be paroled into the

1 The petition named three respondents: Edward Newman, Acting Director of

Buffalo Field Office of Immigration and Customs Enforcement; Kristi Noem, Secretary of

the Department of Homeland Security; and Pamela Bondi, Attorney General. Docket

Item 1 at ¶¶ 19-21. In its motion to dismiss, the government noted that Tammy Marich

is now “the Field Office Director for the Buffalo Field Office.” Docket Item 8 at 1 n.1.

Therefore, under Federal Rule of Civil Procedure 25(d), Marich is automatically

substituted for Newman as a respondent, and the Clerk of the Court shall update the

case caption accordingly. See Fed. R. Civ. P. 25(d). For ease of reference, the Court

will refer to the respondents as “the government” throughout this decision and order.

United States for a temporary stay. 8 U.S.C. § 1182(d)(5)(A); see Jennings, 583 U.S. at

288. If the noncitizen is granted parole, then a “legal fiction” deems the person to

remain at or near the border. Henderson v. I.N.S., 157 F.3d 106, 111 n.5 (2d Cir.

1998); see Dep’t of Homeland Sec. v. Thuraissigiam, 591 U.S. 103, 139 (2020).

When noncitizens without authority or permission to be in the United States—for

example, those who sneak into the country—are found someplace other than near the

border, on the other hand, they are taken into custody under 8 U.S.C. § 1226. See

Jennings, 583 U.S. at 288, 303; see also Alvarez Ortiz v. Freden, --- F. Supp.3d ---,

2025 WL 3085032, at *2, *5-10 (W.D.N.Y. Nov. 4, 2025) (this Court’s analyzing the text

of 8 U.S.C. § 1225(b)(2) and finding that it “does not apply to individuals . . . who are

physically in the country [and not on parole] but have not been legally admitted and

seek to stay”). Unlike noncitizens held under the mandatory detention of section 1225,

noncitizens held under section 1226 are given bond hearings to determine whether they

might be safely released while their deportation proceedings are pending. See

Jennings, 583 U.S. at 306.

This case presents a dilemma: what happens when a noncitizen who has been

granted parole for a discrete period of time remains in the country after that parole

expires? Does the legal fiction of parole deem the noncitizen to be at or near the border

even when he or she is found in the middle of the country—that is, nowhere near any

border—months or years later? Or does the fact that the noncitizen was found in the

United States after his or her parole expired—that is, without authority or permission

somewhere other than the border—make the case akin to that of a noncitizen who has

snuck into the country? Put another way, are noncitizens who have overstayed their

welcome more like those stopped at the border or those who snuck in without

permission?

That question is one of statutory interpretation: What statute governs the

detention of a noncitizen who was paroled into the United States, remained in the

country after parole expired, and then was apprehended some time later? Primarily at

issue is the statute governing parole, which states:

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 alien applying for admission to the United States, but such

parole of such alien shall not be regarded as an admission of the alien and

when the purposes of such parole shall, in the opinion of the Secretary of

Homeland Security, have been served the alien 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.

8 U.S.C. § 1182(d)(5)(A) (emphasis added). So there are two phrases the Court must

interpret: What does it mean to “be returned to the custody from which [the noncitizen]

was paroled”? And what does it mean for the noncitizen’s case to “continue to be dealt

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

States”?

For the reasons that follow, this Court finds that “the custody from which [the

noncitizen] was paroled” simply means custody of the United States Department of

Homeland Security (“DHS”),2 not custody under a specific statute. And the Court further

finds that for any noncitizen who is found in the United States unlawfully, to continue to

2 “DHS is the umbrella agency under which both [United States Immigration and

Customs Enforcement (‘ICE’)] and [United States Customs and Border Protection

(‘CBP’)] are subsumed.” See Fams. for Freedom v. U.S. Customs & Border Prot., 797

F. Supp. 2d 375, 382 n.7 (S.D.N.Y. 2011).

deal with the noncitizen’s case “in the same manner as that of any other applicant for

admission to the United States” means that detention is governed—like that for any

other noncitizen found unlawfully present inside the country—by 8 U.S.C. § 1226.

BACKGROUND3

The petitioner, Roberto Antonio Cabrera Martinez, is a Nicaraguan national.

Docket Item 1 at ¶ 16; Docket Item 8-1 at 5. On March 3, 2023, he was paroled into the

United States for a period of two years. Docket Item 1 at ¶ 23; see Docket Item 8-1 at 5

(“The parole program under which [Cabrera] Martinez entered the United States

explicitly stated that parole would be for a two[-]year period, after which removal

proceedings would be initiated against [him].” (citing Docket Item 7 at 2-3)).

A year-and-a-half later, on December 17, 2024, Cabrera Martinez “filed a joint

asylum application with his spouse based on political persecution in Nicaragua.” Docket

Item 1 at ¶ 24. “They feared imprisonment upon return,” they said, “as they were

included in the Ministry of Exterior’s list of ‘traitors.’” Id. A few months later, on March

3, 2025, Cabrera Martinez’s parole expired. See id. at ¶ 23.

On March 29, 2025, DHS sent Cabrera Marinez a letter stating:

Effective March 25, 2025, [DHS] has exercised its discretion to terminate

the categorical parole programs for aliens who are nationals of Cuba, Haiti,

Nicaragua, and Venezuela, and their immediate family members. Your

parole will terminate upon the earlier of (1) your original parole expiration

date or (2) April 24, 2025. You should depart the United States now, but no

3 The Court takes the facts from the petition, Docket Item 1, and the

government’s motion to dismiss, Docket Item 8-1. The Court acknowledges that due to

the expedited briefing schedule, the government has not yet been able to obtain the

alien file for the petitioner. See id. at 5 n.2. The government assumed the facts alleged

in the petition for purposes of its motion to dismiss but did not admit those facts. See id.

later than the date of the termination of your parole. Failure to timely depart

may have adverse immigration consequences.

Docket Item 11-1 at 3. The letter further warned:

If you have not obtained a lawful basis to remain in the United States and

do not depart the United States by the date your parole terminates, you will

begin to accrue unlawful presence in the United States unless you are

otherwise protected from such accrual. Accrual of more than 180 days of

unlawful presence followed by departure from the United States may result

in being inadmissible if you again seek admission within a certain period of

time after departure.

Id. Cabrera Martinez did not depart, and it appears that the government took no further

action until about five months passed—on October 1, 2025—when Cabrera Martinez

received an employment authorization document (“EAD”) based on his pending asylum

application. See Docket Item 1 at ¶ 25.

But only three weeks later, on October 25, agents from Immigration and Customs

Enforcement (“ICE”) arrested Cabrera Martinez and took him into custody. Id. at ¶ 26.

Five days after that, he filed this petition for a writ of habeas corpus under 28 U.S.C. §

2241. Docket Item 1. And about a week later, he moved for a preliminary injunction in

connection with his habeas petition. Docket Item 7.

The government then responded and moved to dismiss the petition, Docket Item

8, and this Court heard oral argument and ordered supplemental briefing. See Docket

Item 13. After the parties filed their supplemental submissions, Docket Items 10, 11, 12,

15, 17, and 18, this Court again heard oral argument, see Docket Item 20. At the

Court’s request, the parties filed additional briefing. See Docket Items 21, 22, and 23.

For the reasons that follow, after careful consideration of all the submissions and

arguments, this Court grants Cabrera Martinez’s motion for a preliminary injunction,

orders the government to provide him with a prompt bond hearing, and denies the

government’s motion to dismiss.

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).

“The district court has wide discretion in determining whether to grant a

preliminary injunction.” Valenzuela Arias, 612 F. Supp. 3d 307, 311 (S.D.N.Y. 2020)

(quoting Almontaser v. N.Y.C. Dep’t of Educ., 519 F.3d 505, 508 (2d Cir. 2008) (per

curiam)). That being said, “[a] preliminary injunction is an extraordinary remedy,”

Winter, 555 U.S. at 24, and “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)).

III. MOTION TO DISMISS

“To survive a motion to dismiss [under Federal Rule of Civil Procedure 12(b)(6)],

a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to

relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility

when the plaintiff pleads factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly,

550 U.S. at 556). “The plausibility standard is not akin to a ‘probability requirement,’ but

it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id.

(quoting Twombly, 550 U.S. at 556).

DISCUSSION

I. STATUTORY FRAMEWORK

As explained above, the question in this case is whether Cabrera Martinez is

being detained under 8 U.S.C. § 1225 or 8 U.S.C. § 1226 after having been paroled into

the country under 8 U.S.C. § 1182—all sections of the Immigration and Nationality Act

(“INA”). The Court will begin by outlining each of these statutes.

A. Section 1225

Section 1225 is titled “Inspection by immigration officers; expedited removal of

inadmissible arriving aliens; referral for hearing.”4 8 U.S.C. § 1225. Under this section,

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, 583 U.S. at 287

(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)(A)(iii)).

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)).

4 The INA defines the term “alien” as meaning “any person not a citizen or

national of the United States.” 8 U.S.C. § 1101(a)(3). This Court uses “alien” and

“noncitizen” interchangeably throughout this decision and order.

In that case, 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.’” Jennings, 583 U.S. at

287 (quoting 8 U.S.C. § 1225(b)(1)(B)(ii)).

Section 1225(b)(2) covers “[i]nspection of other aliens” and provides that “in the

case of an alien who is an applicant for admission, if the examining immigration officer

determines that an alien seeking admission is not clearly and beyond a doubt entitled to

be admitted, the alien shall be detained for a proceeding under section 1229a of this

title.” 8 U.S.C. § 1225(b)(2)(A). In other words, whereas for section 1225(b)(1) to

apply, the immigration officer must definitively determine that the noncitizen “is

inadmissible,” for section 1225(b)(2) to apply, the immigration official need only

determine that the noncitizen “is not clearly and beyond a doubt entitled to be admitted.”

See id. §§ 1225(b)(1)(A)(i), (b)(2)(A). The Supreme Court has described section

1225(b)(2) “as a catchall provision that applies to all applicants for admission not

covered by [section] 1225(b)(1).” See Jennings, 583 U.S. at 287.

B. Section 1182

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

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

humanitarian reasons or significant public benefit.’” Id. at 288 (quoting 8 U.S.C.

§ 1182(d)(5)(A)). “Such parole, however, ‘shall not be regarded as an admission of the

alien.’” Id. (quoting 8 U.S.C. § 1182(d)(5)(A)). As explained above, when parole ends,

section 1182 provides that “the alien 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.” 8

U.S.C. § 1182(d)(5)(A).

C. Section 1226

Section 1226 is titled “Apprehension and detention of aliens.” 8 U.S.C. § 1226.

It states that “[o]n a warrant issued by the Attorney General, an alien may be arrested

and detained pending a decision on whether the alien is to be removed from the United

States.” Id. § 1226(a). It further provides that:

[e]xcept as provided in subsection (c) and pending such decision, the

Attorney General—

(1) may continue to detain the arrested alien; and

(2) may release the alien on—

(A) bond of at least $1,500 with security approved by, and containing

conditions prescribed by, the Attorney General; or

(B) conditional parole; but

(3) may not provide the alien with work authorization (including an

“employment authorized” endorsement or other appropriate work permit),

unless the alien is lawfully admitted for permanent residence or otherwise

would (without regard to removal proceedings) be provided such

authorization.

Id.5

5 Section 1226(c)—which the parties agree does not apply here—deals with the

“[d]etention of criminal aliens” and provides that “[t]he Attorney General shall take into

custody any alien who” has committed certain crimes. See 8 U.S.C. § 1226(c).

II. AUTHORITY FOR CABRERA MARTINEZ’S DETENION

With that backdrop in mind, the Court turns to the question at hand: what is the

statutory authority for Cabrera Martinez’s detention?

The government says that Cabrera Martinez “is inarguably an arriving alien and

applicant for admission who has never been inside the United States except through

parole, and thus he is detained pursuant to 8 U.S.C. § 1225(b)(2).” See Docket Item 15

at 3. As explained above, section 1225(b)(2) provides that “in the case of an alien who

is an applicant for admission, if the examining immigration officer determines that an

alien seeking admission is not clearly and beyond a doubt entitled to be admitted, the

alien shall be detained for a proceeding under section 1229a of this title.” 8 U.S.C.

§ 1225(b)(2)(A). Cabrera Martinez counters that when he was arrested and detained in

October 2025, he was not “seeking admission”; on the contrary, he says, he already

was here and had been for several years, including several months after his parole

expired. See generally Docket Item 12.

There is little question that when Cabrera Martinez first arrived at the border in

March 2023, he was “seeking admission.” He then was paroled into the country, which

allowed him to remain here under parole’s “entry fiction.” See, e.g., Campbell v.

Almodovar, 2025 WL 3538351, at *8 (S.D.N.Y. Dec. 10, 2025); Bermudez Paiz v.

Decker, 2018 WL 6928794, at *10 (S.D.N.Y. Dec. 27, 2018). As explained above,

despite being physically in the country, individuals on parole continue to be treated for

legal purposes “as if stopped at the border.” See Thuraissigiam, 591 U.S. at 139

(quoting Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 215 (1953));

Henderson, 157 F.3d at 111 n.5 (describing parole as “a legal fiction”).

The harder question—on which there is not yet any binding authority—is what

happens to the “entry fiction” after parole ends? Put another way, once a previously

paroled noncitizen has been living in the United States outside parole for a period of

time, what is the person’s status?

The Court turns first to the statutory text. As noted above, section 1182

mandates that when parole ends, “the alien shall forthwith return or be returned to the

custody from which he was paroled,” and “his case shall continue to be dealt with in the

same manner as that of any other applicant for admission to the United States.” 8

U.S.C. § 1182(d)(5)(A). There has been a flurry of recent district court decisions

addressing the meaning of this provision, and courts have gone both ways on whether

“returned to the custody from which [the noncitizen] was paroled” means custody under

a specific statutory provision or simply DHS custody. Compare Tenemasa-Lema v.

Hyde, --- F. Supp.3d ---, 2025 WL 3280555, at *4 (D. Mass. Nov. 25, 2025) (finding that

“because DHS’s statutory power to ‘return’ [p]etitioner to custody under section 1225 at

the expiration of his parole, see 8 U.S.C. § 1182(d)(5)(A), was not lost through DHS’s

inaction, that remains a proper authority for his current detention”), and Chanaguano

Caiza v. Scott, 2025 WL 3013081, at *7 (D. Me. Oct. 28, 2025) (concluding that

petitioner “was initially detained [under section] 1225(b)(2) and therefore, upon

expiration of his parole, his status is restored to detention under that same statute”),

with, e.g., Campbell v. Almodovar, 2025 WL 3538351, at *9 (S.D.N.Y. Dec. 10, 2025)

(“In accordance with that understanding, [s]ection 1182(d)(5)(A) permitted DHS to

‘return [peititioner] . . . to the custody from which he was paroled,’ but not without the

procedures afforded to any other applicant for admission residing in the United States

for years.”); Rodriguez v. Rokosky, 2025 WL 3485628, at *2 (D.N.J. Dec. 3, 2025)

(section 1182 “provides only that, upon expiration of parole, the individual ‘shall . . .

return . . . to the custody from which he was paroled’ and that ‘his case shall continue to

be dealt with in the same manner as that of any other applicant for admission,’ i.e., any

ordinary noncitizen present in the United States without admission” (emphasis omitted));

Rodriguez-Acurio v. Almodovar, --- F.Supp.3d ---, 2025 WL 3314420, at *18 (E.D.N.Y.

Nov. 28, 2025) (concluding that “[s]ection 1182(d)(5)(A) may permit [the petitioner] to be

returned to [DHS] custody, but her case, which necessarily includes the procedures

required before detention, ‘shall continue to be dealt with in the same manner as that of

any other applicant for admission,’ 8 U.S.C. § 1182(d)(5)(A), and any other applicant for

admission residing in the United States for more than three years would be detained

under [s]ection 1226”). The weight of authority in this Circuit follows the latter approach,

and for the reasons that follow, so does this Court.

A. Supreme Court Guidance

As Judge Choudhury recognized in Rodriguez-Acurio, 2025 WL 3314420 at *18,

the Supreme Court’s decision in Clark v. Martinez, 543 U.S. 371, 385 (2005), is

instructive. Clark dealt with two Cubans who arrived in the Mariel boat lift, later violated

their parole, and then were ordered removed. 543 U.S. at 374-75. The question was

whether the Supreme Court’s interpretation of 8 U.S.C. § 1231 in Zadvydas v. Davis,

533 U.S. 678 (2001), applied to them. See Clark, 543 U.S. at 373. Among other

arguments, “the [g]overnment sought to justify its continued detention of these aliens on

the authority of [section] 1182(d)(5)(A).” Id. at 385. The Supreme Court rejected that

contention and explained:

Even assuming that an alien who is subject to a final order of removal is an

“alien applying for admission” and therefore eligible for parole under this

provision, we find nothing in this text that affirmatively authorizes detention,

much less indefinite detention. To the contrary, it provides that, when parole

is revoked, “the alien shall . . . 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.” [8 U.S.C.

§ 1182(d)(5)(A)] (emphasis added). The manner in which the case of any

other applicant would be “dealt with” beyond the 90-day removal period is

prescribed by [section] 1231(a)(6), which we interpreted in Zadvydas and

have interpreted above.

Clark, 543 U.S. at 385-86.

The Supreme Court’s interpretation of section 1182 suggests that “custody” does

not mean custody under specific statutory authority; rather, it simply means the custody

of DHS. If, as the government argues here, “custody” in section 1182 meant custody

under section 1225, then the Cubans in Clark would have been returned to custody

under section 1225, not section 1231. And what is more, Clark confirmed that “[t]he

manner in which the case of any other applicant would be ‘dealt with’” under section

1182 includes the rights and procedures that pertain to detention. See 543 U.S. at 385-

86.

Based on the Supreme Court’s reading of the statutory text, Judge Choudhury

found that “[s]ection 1182(d)(5)(A) may permit [the petitioner] to be returned to [DHS]

custody, but her case, which necessarily includes the procedures required before

detention, ‘shall continue to be dealt with in the same manner as that of any other

applicant for admission,’ 8 U.S.C. § 1182(d)(5)(A).” Rodriguez-Acurio, 2025 WL

3314420, at *18. Therefore, and because “any other applicant for admission residing in

the United States for more than three years would be detained under [s]ection 1226,”

Judge Choudhury concluded that the previously paroled noncitizen also would be held

under that section. See id. This Court agrees.

B. “Unlawful Presence”

Further support for the idea that the “entry fiction” ends once a person has been

living in the country after parole expires can be found in another part of section 1182:

subsection (a)(9)(B)(ii) addressing “unlawful presence.” That subsection provides that

“an alien is deemed to be unlawfully present in the United States if the alien is present

in the United States after the expiration of the period of stay authorized by the Attorney

General or is present in the United States without being admitted or paroled.” 8 U.S.C.

§ 1182(a)(9)(B)(ii) (emphasis added). So the “entry fiction”—which deems someone on

parole not to be legally “present” in the country—must end when someone overstays

“the period of [parole] authorized by the Attorney General.” See id. Section

1182(a)(9)(B)(ii) says as much.

Indeed, the letter sent to Cabrera Martinez cautioned that “[i]f you have not

obtained a lawful basis to remain in the United States and do not depart the United

States by the date your parole terminates, you will begin to accrue unlawful presence in

the United States unless you are otherwise protected from such accrual.” Docket Item

11-1 at 3 (emphasis added). And the government acknowledged in its briefing that

Cabrera “was actually accruing time of unlawful presence which may bar his future

admissibility.” Docket Item 15 at 4 (emphasis added). It defies logic to deem someone

simultaneously awaiting entry “at the border” and “present” inside the country.

Thus, based both on the text of section 1182 and the Supreme Court’s

interpretation of it in Clark, this Court finds that “returned to the custody from which [the

noncitizen] was paroled” in section 1182 refers simply to DHS custody.6 And for

someone who is “unlawfully present” because his parole has expired and he has been

living in the country without parole for a period of time,7 that person’s detention must “be

dealt with in the same manner as” any other noncitizen “already present in the United

States,” see Jennings, 583 U.S. at 303—that is, under section 1226.8

C. The Government’s Caselaw

The cases the government cites do not compel a different conclusion. Indeed,

most of the cases upon which the government relies hold that being paroled into the

6 As Judge Murphy observed, any delay in returning the petitioner to custody

under section 1182 does not extinguish DHS’s right to do. See Tenemasa-Lema, 2025

WL 3280555, at *3. The Supreme Court has held that “an official’s crucial duties are

better carried out late than never,” Nielsen v. Preap, 586 U.S. 392, 411 (2019), and “if a

statute does not specify a consequence for noncompliance with statutory timing

provisions, the federal courts will not in the ordinary course impose their own coercive

sanction,” Barnhart v. Peabody Coal Co., 537 U.S. 149, 159 (2003) (quoting United

States v. James Daniel Good Real Property, 510 U.S. 43, 63 (1993)).

7 As this Court observed during oral argument, there must come a time when the

legal fiction that someone granted parole remains at the border comes to an end. For

example, deeming a noncitizen to still be at the border seeking admission when she has

lived in this country since her parole expired 40 years ago would be fantasy, not fiction.

The Court does not weigh in on how long the minimum period of time must be, but

several months is certainly enough given the statutory language and the Supreme

Court’s reading of it.

8 Cabrera Martinez also argues that the government does not have the authority

to return him to custody under section 1182 because he “wasn’t paroled from any

custody. He was invited to fly to the United States, vetted upon arrival, and permitted to

enter.” Docket Item 22 at 3. Not so. First, although Cabrera Martinez may not have

spent much time in custody while being “vetted,” he must have been “in custody” at

least for that initial screening. See 8 U.S.C. 1225(b); see also Implementation of a

Parole Process for Nicaraguans, 88 FR 1255-01 (“Each individual arriving at a [point of

entry] under this process will be inspected by CBP and considered for a grant of

discretionary parole for a period of up to two years on a case-by-case basis.”). And

even if that were not the case, DHS certainly would now have authority under section

1226(a) to detain him as a noncitizen unlawfully present.

country, or spending years here without any authority, does not entitle a noncitizen to

any additional process in connection with an application to enter or legally remain here.

This Court has no argument with that proposition, which addresses status in the

country—a question over which the executive has virtually exclusive authority. But that

says nothing about whether the noncitizen might be entitled to be released while the

application is pending, an issue of liberty far different from immigration status. See

Campbell, 2025 WL 3538351, at *8 (explaining that “the central concern of historic

applications of the [entry fiction] doctrine was the admission or removal of a noncitizen,

rather than detention pending an adjudication”).

1. Cases Involving Noncitizens Re-entering the Country

Several of the government’s cases concern noncitizens detained when

attempting to re-enter the country. For example, the government cites the Supreme

Court’s decision in Mezei for the proposition “that even spending 25 years in the United

States does not entitle an arriving alien [to] any more due process than an alien arriving

at the United States border in the first instance.” Docket Item 21 at 1 (citing Mezei, 345

U.S. at 213). But as the government acknowledges, in Mezei, the petitioner, after

having lived here for many years, left and was detained at the border upon his return.

See Mezei, 345 U.S. at 207, 213. He had been “permanently excluded from the United

States on security grounds but [remained] stranded . . . on Ellis Island because other

countries w[ould] not take him back.” Id. at 207. So Mezei concerned the right to enter

the country, not the right to be at liberty pending ongoing deportation proceedings.9

9 What is more, Mezei was decided on due process grounds and did not deal

with the precise statutory question here. Nor could it have, as it was decided well

Along the same lines, in Abitih v. Wilkinson, 2021 WL 733806 (W.D.N.Y. Feb. 25,

2021), Chief Judge Wolford of this District found that a “[p]etitioner who . . . attempted

to re-enter the United States” after his parole expired “was taken into custody” under

section 1225(b). Id. at *1 (emphasis added). In other words, the noncitizen in Abitih

was literally stopped at the border and prevented from entering the country.

There is no question that had Cabrera Martinez left and presented himself again

at the border, he would be an arriving alien under section 1225(b). But that is not what

happened here.

2. Cases Demonstrating that a Noncitizen on Parole Remains

Legally at the Border

The government also relies on several cases that stand for the well-established

proposition that noncitizens on parole remain legally at the border. See, e.g.,

Thuraissigiam, 591 U.S. at 139 (noncitizens “paroled elsewhere in the country for years

pending removal” are nonetheless legally “‘treated . . . as if stopped at the border’”

(quoting Mezei, 345 U.S. at 215)).

For example, the government cites Leng May Ma v. Barber, 357 U.S. 185, 190

(1958). Docket Item 21 at 1-2. There, the petitioner was

a native of China who arrived in this country in May 1951 claiming United

States citizenship on the ground that her father was a United States citizen.

Pending determination of her claim, she at first was held in custody, but

later, in August 1952, was released on parole. Some three months

thereafter, having failed to establish her claim of citizenship, she was

ordered excluded, and the Board of Immigration Appeals affirmed. She

surrendered for deportation in January 1954, and thereafter applied for a

stay of deportation under s[ection] 243(h) in which she alleged that her

before the current regime, which went into place in 1996. See Henderson, 157 F.3d at

111 n.5.

pending deportation to China would subject her to physical persecution and

probable death at the hands of the existing government.

Leng May Ma, 357 U.S. at 186. Section 243(h) “authorize[d] the Attorney General ‘to

withhold deportation of any alien within the United States to any country in which in his

opinion the alien would be subject to physical persec[u]tion.’” Id. at 185. The Supreme

Court found that under those circumstances, the petitioner’s pending “parole did not

alter her status as an excluded alien or otherwise bring her ‘within the United States’ in

the meaning of s[ection] 243(h).” Id. at 186. So the petitioner had no greater right to

enter or legally remain in the country. But Leng May Ma did not address what happens

when a noncitizen accrues time inside the country after parole expires.

The government also cites the Tenth Circuit’s decision in Sierra v. Immigration &

Naturalization Services, 258 F.3d 1213 (10th Cir. 2001). Docket Item 21 at 2-3. There,

the petitioner was “a Cuban who came to the United States during the 1980 Mariel boat

lift” and “was paroled into the United States.” Sierra, 258 F.3d at 1215-16. After

committing a series of crimes, he ultimately ordered was removed in 1992. Id. at 1216.

But Cuba would not accept him back, so he remained detained in federal prison. Id.

Under a process established in 8 C.F.R. § 212.12(g)(2), “Mariel Cubans who are being

detained have their cases reviewed every year to determine whether they should be

paroled” out of custody under section 1182. Sierra, 258 F.3d at 1216. The petitioner

“was denied parole in 1992,” but “[i]n 1994, he was released.” Id. Six months later,

however, “his parole was revoked . . . because he had violated its conditions,” and “[h]e

was denied parole again in 1995, 1996, and 1997.” Id. In 1998, the review board

“recommended that he be paroled,” but “[b]ecause of [a] fighting incident and apparently

while [the petitioner]’s disciplinary appeal was pending, the [INS] Associate

Commissioner for Enforcement, without a hearing, withdrew approval for [the

petitioner’s] parole.” Id.

The Tenth Circuit rejected the petitioner’s arguments that “(1) he was entitled to a

hearing on the parole withdrawal and (2) the Cuban Review Panel should not have

withdrawn his parole while his appeal of the disciplinary decision was pending.” Id. But

those arguments addressed whether the petitioner was entitled to be paroled into the

United States—a decision that is entirely within the executive’s discretion—not whether

he could be released while immigration proceedings were pending.

In dicta, the Tenth Circuit also explained that “[a]lthough he has been physically

present in the United States for more than twenty years,” the petitioner “[wa]s ‘legally

considered to be detained at the border and hence as never having effected entry into

this country.’” Id. at 1218 (quoting Gisbert v. U.S. Attorney Gen., 988 F.2d 1437, 1440

(5th Cir.), amended by 997 F.2d 1122 (5th Cir. 1993)). But unlike this case, all the time

that the petitioner in Sierra spent inside the country was either in detention or on parole.

So the Sierra court did not have to grapple with the effect of unlawful presence after

parole had expired. Moreover, the petitioner in Sierra already had been ordered

removed; he was not—like Cabrera Martinez—in detention pending removal

proceedings that may ultimately conclude in his favor.

3. The Second Circuit’s Decision in Ofosu v. McElroy

The government cites Ofosu v. McElroy, 98 F.3d 694 (2d Cir. 1996), for the

proposition “that no further due process was required prior to the government[’s] taking

[an] alien [whose parole has expired or was terminated] into custody.” See Docket Item

10 at 2. Of course, this Court agrees with and follows that binding precedent. But it

does not answer the question here.

In Ofosu, the petitioner, who was on parole, had been ordered “excluded.”10 98

F.3d at 697-98. The government ordered him to appear, but he refused because he

was worried that his parole would be revoked and that he would be detained pending

his appeal to the Second Circuit. See id. He then sought a stay of the exclusion order.

See id. The Second Circuit ultimately granted his request for a stay of the exclusion

order but “conditioned [that stay] upon the petitioner's prompt surrender to the

[Immigration and Naturalization Service (‘INS’)11] for possible parole revocation.” Id. at

696.

In reaching this conclusion, the Second Circuit looked to the language of section

1182: “[w]hen . . . parole is no longer warranted, ‘the alien shall forthwith return . . . to

the custody from which he was paroled.’” Id. at 700 (quoting 8 U.S.C. § 1182(d)(5)(A)).

From this, the court concluded that the government “may demand at any time that the

alien return to custody” and that “[t]here [wa]s simply no basis for [the petitioner]’s

10 Prior to amendments to the INA in 1996, “the law distinguished between

deportation and exclusion proceedings.” Henderson, 157 F.3d at 111 n.5. “Aliens who

were physically present in the United States were placed into deportation proceedings”

whereas “[e]xclusion proceedings dealt with aliens who were literally at the border

seeking entry as well as those who had been physically paroled into the country but

who, through a legal fiction, remained for immigration purposes at the border.” Id. “The

1996 law combined the two proceedings into a new process known as a ‘removal

proceeding.’” Id. So instead of being ordered “excluded,” a noncitizen today would be

ordered “removed.”

11 “Before 2002, immigration proceedings were conducted by [INS].” Funes v.

Francis, 2025 WL 3263896, at *3 n.4 (S.D.N.Y. Nov. 24, 2025). “In 2002, after passage

of the Homeland Security Act, removal authority was transferred from INS to [DHS],

which came to include ICE.” Id. (citing Ali v. Mukasey, 524 F.3d 145, 150 (2d Cir.

2008)).

insistence that the [government] leap procedural hurdles to terminate parole or compel

[his] appearance.” Id. In other words, as this Court acknowledges, see supra notes 6

and 8, DHS has the authority to take someone back into custody once parole has

ended.

But that does not answer the question of what happens once the person returns

to custody. Ofosu—which, like Mezei, was decided under the prior statutory scheme—

did not have occasion to decide whether section 1225 or 1226 applies to someone in

Cabrera Martinez’s situation who was arrested after living here without parole for some

time. Therefore, while Ofosu certainly stands for the proposition that a noncitizen

paroled into the country may be compelled to appear and taken into custody, it says

nothing about whether that noncitizen is entitled to a hearing addressing whether

continued detention is necessary while the noncitizen contests removal.

4. Out-of-Circuit District Court Cases

The government cites several district court cases from outside this Circuit that

support its position. For the reasons explained below, however, this Court respectfully

declines to follow those decisions.

In Elsaidy v. Rau, 2010 WL 3222510 (D. Md. Aug. 16, 2010), for example, the

court found that a noncitizen who had overstayed his parole still was an “arriving alien”

under section 1225. See id. at *1. But in that case, the “[p]etitioner d[id] not contest

that he [wa]s an arriving alien,” so the court did not have the opportunity to consider the

statutory arguments presented here. See id. Similarly, in Ashraf v. United States

Immigration & Customs Enforcement, 2011 WL 1059712 (N.D. Ohio Mar. 21, 2011), the

petitioner “recognized that as an arriving alien, the Immigration Court ha[d] no

jurisdiction over his custody determination in removal proceedings.” Id. at *2. The

district court therefore concluded that the “[p]etitioner [wa]s an arriving alien” and that

section “1225(b) authorize[d] the detention of arriving aliens.” See id. Likewise, in

Shehata v. United States Immigration & Customs Enforcement, 2015 WL 145054 (S.D.

Ohio Jan. 12, 2015), the petitioner—whose parole had expired at some point prior to his

being detained—did not contest that he was an “arriving alien” under section 1225. See

id. at *2-3 & *2 n.3. He instead “argue[d] that his current detention without the

possibility of a bond hearing violate[d] his procedural due process rights because [his]

advance parole document did not provide sufficient notice of the adverse consequences

of departing the United States.” See id. at *3 (emphasis added). So none of those

cases conducted any of the statutory analysis discussed above.

Another case that the government cites, Gutierrez-Soto v. Sessions, 317 F.

Supp. 3d 917 (W.D. Tex. 2018), dealt with a challenge to the revocation of parole. In

that context, the court rejected the petitioners’ argument—which it described as “fairly

novel”—that by “allowing them to live, work, and establish roots in America for nearly a

decade while on parole,” the government gave “them a due process right to not be

snatched off the street without warning whenever [r]espondents see fit.” Id. at 929.

This Court disagrees with that court’s blanket characterization of the law on revocation

of parole for the reasons stated in Mata Velasquez v. Kurzdorfer, 794 F. Supp. 3d 128

(W.D.N.Y. 2025).12 But more to the point here, Guiterrez-Soto did not address what

happens when a noncitizen remains in the country after parole has expired.

12 In Mata Velasquez, this Court concluded “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

The Court recognizes that two recent district court decisions in the First Circuit—

Tenemasa-Lema, 2025 WL 3280555, at *4, and Chanaguano Caiza, 2025 WL 3013081,

at *7—support the government’s assertion that section 1225(b) remains the statutory

authority for detention of a noncitizen who was paroled into the country regardless of

how much time has passed since the expiration of parole. But neither of those cases

grappled with the Supreme Court’s analysis of the language in section 1182 discussed

above, see Clark, 543 U.S. at 385-86, nor did they address the plain language of

section 1182 providing that those who overstay their parole are deemed to be

“unlawfully present” in the United States, see 8 U.S.C. § 1182(a)(9)(B)(ii) (emphasis

added). Those decisions therefore have limited persuasive value here.

D. The Government’s Other Arguments

The Court acknowledges that 8 C.F.R. § 1.2 supports the government’s

argument. That regulation provides that “[a]n arriving alien remains an arriving alien

even if paroled pursuant to section 212(d)(5) of the Act, and even after any such parole

is terminated or revoked.” And that gives this Court significant pause. But for two

reasons, it does not change the Court’s conclusion.

First, although the regulation says “even after any such parole is terminated or

revoked,” it does not address whether that has any temporal or other limitation. For

example, and as already noted, see supra note 7, it is hard to imagine that the legal

[noncitizen] received parole.” 794 F. Supp. 3d at 146 (citation and internal quotation

marks omitted). And the Court also found that “the circumstances of th[at] case”—in

which the petitioner was “invited here” under a two-year parole program for

Venezuelans—“require[d] some level of constitutional due process before parole c[ould]

be revoked.” Id. at 148.

fiction could apply to someone who has remained in the country without parole for

decades. And someone who left the country after parole expired, snuck back in

illegally, and then was arrested in the heartland presumably would be treated as would

any other individual who snuck into the country, not as an “arriving alien” under the

regulation.

But even more importantly, “[t]he Court is interpretating a statute, not a

regulation.” See Qasemi v. Francis, 2025 WL 3654098, at *7 (S.D.N.Y. Dec. 17, 2025).

In 2024, the Supreme Court overruled Chevron, U.S.A., Inc. v. Natural Resources

Defense Council, Inc., 467 U.S. 837 (1984), and held that “courts must exercise

independent judgment in determining the meaning of statutory provisions” rather than

deferring to agency interpretations when provisions are ambiguous. See Loper Bright

Enters. v. Raimondo, 603 U.S. 369, 394 (2024); Romero v. Francis, 2025 WL 3110459,

at *3 (S.D.N.Y. Nov. 6, 2025) (explaining that “after Loper Bright, it is the province of the

courts—not the agency—to ‘authoritatively interpret’ the statute” (quoting Loper Bright,

603 U.S. at 402)); see also Rodriguez-Acurio, 2025 WL 3314420, at *19-20 (rejecting

argument that 8 C.F.R. § 1.2 is dispositive of definition of “arriving alien” after Loper

Bright). And based on the statutory text of section 1182 and the Supreme Court’s

interpretation of it, this Court finds that someone who has overstayed parole is “present”

in the United States.

Finally, the government argues that it “does not make sense to allow someone to

break the law and enter the United States, or to unlawfully remain in the United States,

and then use the results of their unlawful activity to bolster their claim to remain.”

Docket Item 21 at 5. The Court appreciates that argument but ultimately finds it

unpersuasive.

First, the question here does not relate to the petitioner’s right “to remain” in the

United States, which will be decided by the immigration courts. Rather it relates to the

possibility of liberty while immigration proceedings are pending, which “is the norm” in

this country, whereas “detention ‘is the carefully limited exception.’” See Velasco Lopez

v. Decker, 978 F.3d 842, 851 (2d Cir. 2020) (quoting United States v. Salerno, 481 U.S.

739, 755 (1987)); 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)). What is

more, it is up to Congress—not the courts—to weigh these types of equities in drafting

statutes; it is up to the courts simply to interpret what Congress has written.13

And it also makes little sense to treat those who present themselves at the

border, are given parole, and then overstay their welcome more harshly than those who

simply sneak into the country without ever having had authority or permission to be

here. But under the government’s interpretation of the law, those who initially played by

13 This Court acknowledges that the Second Circuit in Ofosu expressed concern

about the implications for the “the system of parole” if noncitizens on parole are allowed

to flout government orders without consequence. 98 F.3d at 702 (“In ruling on this stay,

we consider whether what we do will encourage others to respect their parole status.

Justice will not be served if [the petitioner]’s non-cooperation is seen to be without cost

by others similarly situated, and the system of parole thereby becomes unfeasible.”).

But there, the Second Circuit was determining whether to grant a discretionary stay—a

decision for which it determined that “an alien’s non-cooperation [wa]s a[n] important

fact.” See id. It was not interpreting the statutory language presented here, except to

the extent that it—like this Court, see supra notes 6 and 8—found that section 1182

allows DHS to take someone back into custody following the expiration or termination of

parole. See Ofosu, 98 F.3d at 700.

the rules and were granted parole that expired must be detained while awaiting

deportation proceedings; those who snuck in and never had permission to be here may

be released after a hearing. So the point is not what makes the most sense. The point

is what the law says, sensical or not.

E. Conclusion

For all those reasons, after careful consideration of this close question, this Court

joins those courts that have found that an individual who has been living in the United

States outside parole and is later apprehended is detained under section 1226. In

reaching this conclusion, this Court need not—and does not—reach the question of the

statutory authority for detention of individuals whose parole has ended but who were in

fact “forthwith . . . returned to [DHS] custody,” 8 U.S.C. § 1182(d)(5)(A), such that they

did not accrue unlawful presence time, see id. § 1182(a)(9)(B)(ii). Several courts have

suggested that such persons also would be detained under section 1226. See, e.g.,

Qasemi, 2025 WL 3654098, at *9 (finding that “when ICE affirmatively chose to release

[petitioner] on parole, it made the decision that he would no longer be subject to the

mandatory detention provision of [s]ection 1225(b)(1), as is mandated by subsection

(b)(1)(iii)(II)”); Rodriguez-Acurio, 2025 WL 3314420, at *18 (concluding that “the grant of

humanitarian parole to [petitioner] moved her out of expedited removal proceedings and

related mandatory detention [under section 1225(b)]”). This Court has serious doubts

as to whether that conclusion can be squared with the extensive binding precedent on

the entry fiction. But that is a question for another day. This Court’s holding today

addresses only those who have lived for some time within the country outside their

period of parole.

III. PRELIMINARY INJUNCTION FACTORS

Based on its statutory analysis above, the Court finds that Cabrera Martinez is

detained under section 1226(a)—under which he is entitled to a bond hearing—and that

he therefore is likely to succeed on the merits of his habeas claim. So that factor

obviously weighs in his favor. And having found that Cabrera Martinez is likely to

succeed on the merits of his claim, this Court finds that the other two prongs of the

preliminary injunction test are easily 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 8-1 at

8 (arguing that Cabrera Martinez “cannot show irreparable harm due to his detention in

immigration custody” because “[t]his is what Congress requires”). 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 any person’s

detention does not cause irreparable harm deeply troubles this Court.

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

interest favor granting an injunction requiring a bond hearing under section 1226(a).

While the government has a strong interest in detaining noncitizens who are deemed to

be a danger or a flight risk, there is no indication that this is the case with Cabrera

Martinez; on the contrary, he was previously screened and paroled into the country,

suggesting otherwise. Moreover, if Cabrera Martinez is deemed by an immigration

judge to be either a danger or a flight risk, the government may continue to detain him.

In other words, the government’s interest in detaining Cabrera Martinez without a bond

hearing is minimal. On the other hand, every day that he is detained unnecessarily—

and substantially—harms him.

IV. REMEDY

Having found that Cabrera Martinez is entitled to a preliminary injunction, the

next question is the proper scope of that injunction. Or put another way, what is the

appropriate remedy?

Cabrera Martinez argues that he should be ordered immediately released. See

generally Docket Item 22. This Court acknowledges that other district courts have

adopted that approach in similar cases, see, e.g., Qasemi, 2025 WL 3654098, at *14;

Campbell, 2025 WL 3538351, at *13; Rodriguez-Acurio, 2025 WL 3314420, at *32-33,

and also recognizes that every day that Cabrera Martinez spends in detention is a

hardship to him and his family. Ultimately, however, this Court finds—as it has

previously—that a bond hearing rather than immediate release is the appropriate

remedy. See Alvarez Ortiz, 2025 WL 3085032, at *11; see also Romero v. Hyde, 795

F. Supp. 3d 271, 288 (D. Mass. 2025) (noting that “the appropriate remedy will usually

be a bond hearing to consider the merits of release under section 1226”); Gomes v.

Hyde, --- F. Supp. 3d ---, 2025 WL 1869299, at *9 (D. Mass. July 7, 2025) (finding that

“the appropriate remedy is to order the Immigration Court to conduct a new hearing at

which it considers [the petitioner’s] eligibility for bond under [s]ection 1226(a)”).

The Court reaches this conclusion for several reasons. First, there is no question

that DHS had the authority to take Cabrera Martinez into custody after his parole

expired—even after some time has gone by. See supra notes 6 and 8. So to release

him outright would likely overstep the bounds of this Court’s power. Second, although

Cabrera Martinez was vetted at the time he was paroled, this Court has no way of

knowing whether anything has changed such that he now presents a danger or a flight

risk; that determination is most appropriately made by an immigration judge. Third,

under section 1226(a), DHS is entitled to set a bond for a noncitizen’s release, and this

Court finds that forcing DHS to release Cabrera Martinez without setting a bond would

be unfair.

For all those reasons, this Court orders a prompt bond hearing rather than

Cabrera Martinez’s immediate release.

V. PROCESS DUE

The final question is what process is due in connection with Cabrera Martinez’s

bond hearing. Because this Court finds that Cabrera Martinez is being held under

section 1226(a), it already has answered that question. See Alvarez Ortiz, 2025 WL

3085032, at *12 (“After careful consideration and for the reasons that follow, this Court

finds that constitutional due process requires the government to bear the burden of

proving by clear and convincing evidence that the individual is either a danger to the

community or a flight risk even at an initial bond hearing under section 1226(a).”). So

for the reasons explained in Alvarez Ortiz, see id. at *12-15 (weighing factors set out in

Mathews v. Eldridge, 424 U.S. 319 (1976)), the Court reaches the same conclusion

here.

CONCLUSION

In sum, the Court finds that Cabrera Martinez is not subject to mandatory

detention under 8 U.S.C. § 1225(b)(2) but instead is detained under section 1226(a).

As a result, the Court DENIES the respondents’ motion to dismiss, Docket Item 8, and

finds that Cabrera Martinez is likely to succeed on the merits of his claim. The Court

further finds that Cabrera Martinez has established irreparable harm and that the

balance of the equities weighs in his favor. Thus, the Court GRANTS his motion for a

preliminary injunction, Docket Item 7.

More specifically, the Court ORDERS the respondents to provide Cabrera

Martinez with an individualized bond hearing before an immigration judge within seven

calendar days of the date of this decision and order at which the government shall

bear the burden to demonstrate, by clear and convincing evidence, that he is a danger

to the community or a flight risk. At that bond hearing, the immigration judge must

consider non-bond alternatives to detention or, if setting a bond, Cabrera Martinez’s

ability to pay. If the respondents fail to provide such a hearing within seven calendar

days, they shall immediately release Cabrera Martinez.

On or before January 8, 2026, the respondents shall (1) file a status report

confirming that Cabrera Martinez either has been granted a bond hearing in compliance

with this decision and order or has been released from custody, and (2) show cause

why the petition should not be granted for the reasons explained in this decision and

order.

SO ORDERED.

Dated: December 31, 2025

Buffalo, New York

/s/ Lawrence J. Vilardo

LAWRENCE J. VILARDO

UNITED STATES DISTRICT JUDGE