Rhoney

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

STALIN JUNIOR FERMIN JAVIER,

Petitioner,

v. DECISION AND ORDER

PHILIP RHONEY, et al.,1 6:26-cv-06076-EAW

Respondents.

Petitioner Stalin Junior Fermin Javier (“Petitioner”), a citizen of the Dominican

Republic who alleges he entered the United States on July 21, 2018, as a B2 visitor, is a

civil immigration detainee seeking relief under 28 U.S.C. § 2241, claiming that he is being

detained in United States Immigration and Customs Enforcement (“ICE”) custody pending

removal proceedings in violation of the United States Constitution. (Dkt. 1; Dkt. 6).

Petitioner alleges that he overstayed his visa, and was later detained by ICE on June 30,

2025, after he accidentally made a wrong turn and arrived at the U.S./Canada border. (Dkt.

6 at ¶ 2). Petitioner is being held at the Buffalo Federal Detention Facility (“BFDF”) in

Batavia, New York. (Id. at ¶ 6).

1 Tammy Marich is no longer the Acting Field Office Director. She has been replaced

by Philip Rhoney. And Mr. Rhoney is no longer the Acting Deputy Field Office Director.

He has been replaced by James Bausch. The Clerk of Court is therefore directed to update

the docket to substitute Mr. Rhoney for Ms. Marich, and Mr. Bausch for Mr. Rhoney,

pursuant to Federal Rule of Civil Procedure 25(d).

Respondents have moved to dismiss the petition on the ground that Petitioner was

already afforded a bond hearing, and he is not entitled to a second one either statutorily or

constitutionally. Respondents expressly argue that Petitioner has not been detained long

enough to invoke his right to a bond hearing under Velasco Lopez v. Decker, 978 F.3d 842

(2d Cir. 2020). (Dkt. 9). For the reasons set forth below, the motion to dismiss is denied

and the petition is granted to the extent Petitioner seeks a bond hearing.

The facts appear undisputed: Petitioner, who has no criminal convictions, is

detained pursuant to 8 U.S.C. § 1226(a); on September 2, 2025, Petitioner was denied a

bond before an immigration judge based on Petitioner’s alleged risk of flight; and on

October 17, 2025, Petitioner was ordered removed by an immigration judge but that order

is not final as Petitioner is pursuing an appeal before the Board of Immigration Appeals.

(Dkt. 6 at ¶¶ 3-5; Dkt. 9-1 at 2).

Utilizing the three-factor balancing test provided in Mathews v. Eldridge, 424 U.S.

319 (1976), the Second Circuit recognized in Velasco Lopez that a noncitizen incarcerated

pursuant to 8 U.S.C. § 1226(a) for 15 months was entitled to a bond hearing where the

government bore the burden to establish by clear and convincing evidence that he should

be detained. 978 F.3d at 855. Although the court did not 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,” the court nonetheless held that “[o]n any calculus” the 15-month

incarceration in that case violated due process. Id. at 855 n.13.

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.” 424 U.S. at 335.

Applying the Mathews factors to this case, the Court concludes that due process

requires Petitioner to be afforded a second bond hearing at which the government bears the

burden to prove risk of flight or danger by clear and convincing evidence.

Considering the first Mathews factor, there is no question that “the private interest

affected by the official action is the most significant liberty interest there is—the interest

in being free from imprisonment.” Velasco Lopez, 978 at 851. Petitioner has been detained

almost 9 months in a facility that is similar to a prison. See Singh v. Barr, No. 1:19-CV-

01096 EAW, 2020 WL 1064848, at *10 (W.D.N.Y. Mar. 2, 2020) (finding six years ago

based on then-current conditions that same facility did not “seem meaningfully different

from at least a low-security penal institution for criminal detention”). Based on recent

published media reports, the conditions at the BFDF appear less than ideal. See, e.g.,

Lowell Rose, ICE Detainee Population in Batavia Exceeds Capacity as Concerns Over

Conditions Surface, WHAM (Feb. 25, 2026), https://13wham.com/news/local/ice-

detainee-population-in-batavia-exceeds-capacity-as-concerns-over-conditions-surface-

immigration-and-customs-enforcement (“ICE statistics for fiscal year 2026 — which

began Oct. 1, 2025 — confirm the facility is currently housing 745 detainees despite having

a reported capacity of 650 beds.”). Petitioner is detained not because of any criminal

conviction, but because he could not establish sufficiently before an immigration judge that

he is not a flight risk. Respondents argue that there is no indication Petitioner is being held

with convicted criminals (Dkt. 12 at 4), but in fact that appears to be exactly the case given

that individuals being held pursuant to 8 U.S.C. § 1226(c) are held in the same facility.

Thus, this factor weighs heavily in Petitioner’s favor.

As to the second factor, the Court also finds that this weighs heavily in favor of

Petitioner. No matter what level of due process may have been sufficient at the time

Petitioner was initially detained, “‘as the period of . . . confinement grows,’ so do the

required procedural protections. . . .” Velasco Lopez, 978 F.3d at 853 (quoting Zadvydas v.

Davis, 533 U.S. 678, 701 (2001)). The only interest to be considered in connection with

this second factor “is that of the detained individuals—not the government.” Black v.

Decker, 103 F.4th 133, 152 (2d Cir. 2024). The government attempts to argue in opposition

to the petition that the bond hearing afforded Petitioner early on in the proceedings was

sufficient to address any risk of erroneous detention (Dkt. 12 at 5-7),2 but the Court cannot

conclude on the current record that the process afforded Petitioner was adequate. A bond

hearing at which the government must establish that Petitioner should be detained because

of his flight risk, for which no adequate conditions can protect against, has obvious value.

This is particularly the case where, in the current climate, “the government has been . . .

2 Petitioner’s papers could have been more robust and thorough. There are gaps in

the record, not the least of which includes further details concerning the initial bond hearing

held before the immigration judge. While not an excuse, the Court also recognizes that

challenges exist for all involved due to the significant influx of habeas petitions in this

District. Therefore, while under better circumstances the Court may have required a more

robust record to be set forth in connection the current petition, in light of the interests at

stake—the detention of an individual with no criminal record for almost 9 months under

the present circumstances—it has excused those deficiencies.

‘chang[ing] the rules by fiat.’” Alvarez Ortiz v. Freden, 808 F. Supp. 3d 579, 600 (W.D.N.Y.

2025) (citation omitted).

Finally, as to the third factor, the Court also finds this favors Petitioner. The

government cites the immigration judge’s finding of flight risk at the bond hearing where

Petitioner bore the burden of proof. (Dkt. 12 at 7-8). And the government’s interest in

“ensuring that noncitizen[s] do not abscond” is a legitimate one. Velasco Lopez, 978 F.3d

at 854. But as recognized by the Second Circuit, “the Government has not convinced us

that requiring it to justify [a petitioner’s] detention by clear and convincing evidence

substantially undermines its legitimate interests or entails an undue administrative burden.”

Id. at 854-55. In other words, “[w]hen the Government incarcerates individuals it cannot

show to be a poor bail risk for prolonged periods of time, as in this case, it separates families

and removes from the community breadwinners, caregivers, parents, siblings and

employees. The Government articulates no public interest that any of this serves and we

see none.” Id. at 855.

Accordingly, the Court finds that procedural due process protections require

Petitioner to be afforded a second bond hearing conducted in accordance with the following

requirements:

1. Petitioner shall be granted a bond hearing before an immigration judge (“IJ”)

on or before March 30, 2026. If Petitioner requests a continuance that results in a bond

hearing date outside this deadline, such a continuance will comply with this Order as long

as the new date falls within a reasonable time period.

2. The government shall have the burden to demonstrate dangerousness or

flight risk by clear and convincing evidence. In deciding whether the government has met

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

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

3. If the IJ finds that the government has not met its burden, then in setting any

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

4. Thus, in order to continue Petitioner’s detention after any bond hearing, the

IJ must find by clear and convincing evidence and make findings that no condition or

combination of conditions of release can reasonably ensure Petitioner’s appearance and the

safety of the community—that is, even with conditions, Petitioner presents an identified

and articulable risk of flight or a threat to another person or the community.

5. Respondents are directed to file a status update with the Court on or before

March 31, 2026, ;

if

SO ORDERED. □□ □□ OK\ | /f>

LIZABEAH AAVOLFORD”

Chief Judge

United States District Court

Dated: March 20, 2026

Rochester, New York

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