Nany

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

MOHAMED SALEM NANY,

Petitioner,

v. DECISION AND ORDER

1:26-CV-01187-EAW

TODD BLANCHE, Attorney General of

the United States, et al.,1

Respondents.

Petitioner Mohamed Salem Nany (“Petitioner”) is a civil immigration detainee

alleging that he is being detained in the custody of the United States Department of

Homeland Security, Immigration and Customs Enforcement (“ICE”), pending removal

proceedings in violation of the United States Constitution. (Dkt. 1). On June 10, 2026, he

filed a petition seeking relief under 28 U.S.C. § 2241 (id.) and also filed a motion for a

temporary restraining order (Dkt. 2) to enjoin his transfer from the Western District of New

York. At the time his petition was filed, Petitioner was being held at the Buffalo Federal

Detention Facility (“BFDF”) in Batavia, New York. (Dkt. 1 at ¶ 36).

For the reasons set forth below, the petition is granted to the extent that Respondents

must provide a bond hearing to Petitioner where the government bears the burden of proof

1 David Venturella is the Acting Director of ICE and is substituted in place of Todd

Lyons pursuant to Federal Rule of Civil Procedure 25(d). The Clerk of Court is directed

to update the docket to reflect this substitution.

by clear and convincing evidence, in accordance with the procedure outlined below, to

establish that Petitioner’s risk of flight or danger necessitates his detention.

BACKGROUND

Petitioner is a citizen of Mauritania (a country in West Africa) who entered the

United States on or about May 7, 2024. (Dkt. 1 at ¶¶ 26, 27). He was initially detained

and released on his own recognizance on May 7, 2024, and issued a Form I-220A Order of

Release on Recognizance. (Id. at ¶¶ 28, 29). On or about June 8, 2024, Petitioner applied

for asylum. (Id. at ¶ 33). Petitioner is scheduled for a master hearing on March 2, 2027,

in connection with his pending removal proceedings. (Id. at ¶ 34). In other words,

Petitioner’s ability to remain in this country long term likely will not be finally determined

for some time.

Yet, on June 3, 2026, ICE took Petitioner into custody.2 (Id. at ¶ 35). There was no

change in circumstances or recent developments that led to Petitioner’s detention—rather,

based on information presented by Respondents’ counsel at the show cause hearing, it

appears he just happened to be in the wrong place at the wrong time.

Petitioner filed his habeas petition on June 10, 2026. (Dkt. 1). Almost immediately

after being assigned the case, on June 11, 2026, the Court entered a Text Order directing

Respondents to show cause on or before June 17, 2026, as to why the Court should not

grant Petitioner a bond hearing. (Dkt. 3). The Court also temporarily restrained

2 The petition alleges that Petitioner was arrested on June 5, 2026, in Westchester,

New York, but according to information presented by Respondents during the order to show

cause hearing, he was actually detained on June 3, 2026, in Rochester, New York.

Respondents from transferring Petitioner outside this District pending resolution of the

petition. (Id.). But the Court did not act fast enough—because by the time the Court’s

restraining order was entered, Petitioner was headed south to a detention facility in the

Fifth Circuit. The Court issued an order to show cause scheduling a hearing to address

whether a remedy was warranted. (Dkt. 4). In the meantime, Respondents filed a response

to the Court’s June 11 Text Order,3 acknowledging that binding precedent in the Second

Circuit requires the Court to grant the petition, but also arguing that the burden of proof at

any bond hearing should be on Petitioner. (Dkt. 6 at 1-2).4

The hearing was held on June 17, 2026, and counsel for both parties appeared. (Dkt.

10). After hearing argument, the Court directed Respondents to arrange for Petitioner’s

return to this District and that he be provided a bond hearing in accordance with certain

procedures directed by the Court. This Decision and Order memorializes the Court’s

reasoning in further detail.

3 To the extent Respondents argue that the Court lacks jurisdiction under 8 U.S.C.

§ 1252, this Court rejects that argument for the same reasons it has previously done so.

See, e.g., Lieogo v. Freden, No. 6:25-CV-06615 EAW, 2025 WL 3290694, at *2-3

(W.D.N.Y. Nov. 26, 2025).

4 In support of this argument, Respondents contend that the district court in da Cunha

v. Freden, No. 25-CV-6532-MAV, 2025 WL 3280575 (W.D.N.Y. Nov. 25, 2025), aff’d, 175

F.4th 61 (2d Cir. 2026), ordered a bond hearing at which the petitioner bore the burden of

proof. (Dkt. 6 at 2). That is incorrect. The written decision referenced by Respondents

was issued after the Petitioner had been released on bond and does not mention the burden.

But a review of the docket in the case reveals that, in fact, Respondents were directed to

carry the burden of proof at the bond hearing. (25-CV-6532-MAV at Dkt. 25).

DISCUSSION

Before July 2025, there would have been no dispute that Petitioner’s detention was

governed by 8 U.S.C. § 1226(a), under which he would have automatically been entitled

to a bond hearing and released if he posed no danger or flight risk. But “in July 2025, the

government changed that long-settled practice, . . . and began arguing that 8 U.S.C.

§ 1225(b)(2)(A) prohibits the setting of bond for all inadmissible noncitizens . . .

unlawfully present in the United States. . . .” da Cunha v. Freden, 175 F.4th 61, 69 (2d Cir.

2026). This policy directive led to a decision from the Board of Immigration Appeals

(“BIA”) on September 5, 2025, in Matter of Jonathan Javier Yajure Hurtado, 29 L. & N.

Dec. 216 (BIA), 2025 WL 2674169 (Sept. 5, 2025), holding that immigration judges lack

authority to hear bond requests of noncitizens present in the United States without

inspection and admission because those individuals were classified under 8 U.S.C.

§ 1225(b)(2) and thus subject to mandatory detention.

On April 28, 2026, the Second Circuit rejected the government’s position, holding

in da Cuhna that noncitizens present in the United States after entering without inspection

and admission and who were not apprehended at or near the border at the time of entry are

not subject to mandatory detention under 8 U.S.C. § 1225(b)(2), as contended by

Respondents, but instead are subject to detention under § 1226(a). At the show cause

hearing, Respondents’ counsel informed the Court that since da Cunha was decided, it is

the practice of ICE officials at the BFDF to provide detainees with a Form I-286, Notice

of Custody Determination, informing the individual of their right to a bond hearing. That

said, in the case of Petitioner there is no evidence that he was provided this form. (Dkt. 8).

And it is undisputed that Petitioner was not provided with a bond hearing from the time he

was detained on June 3, 2026, until he was transferred from BFDF on June 11, 2026, or at

any time since his transfer outside the jurisdiction.

Complicating the analysis is the fact that Respondents transferred Petitioner to the

jurisdiction of the Fifth Circuit, which unlike the Second Circuit concluded that § 1225(b)

can be interpreted the way Respondents claim. See Buenrostro-Mendez v. Bondi, 166 F.4th

494, 508 (5th Cir. 2026). Respondents’ counsel represented that a bus left the BFDF early

in the morning on June 11, 2026, with 60 non-citizens on board heading to a detention

facility in the Fifth Circuit. Along with Petitioner, there were five other non-citizens aboard

the bus who had commenced habeas proceedings in this District (two in front of the

undersigned and another three before United States District Judge Lawrence J. Vilardo, and

according to Respondents’ counsel, five of the six who had commenced habeas proceedings

were subject to da Cunha—i.e., entitled to a bond hearing under § 1226(a)). Respondents’

counsel represented at the show cause hearing that the movement had nothing to do with

the filing of the habeas petitions. The Court does not question the sincerity of Respondents’

counsel’s representations, and there is no concrete evidence at this time suggesting that

these transfers are orchestrated to avoid compliance with the law as interpreted by the

Second Circuit. On the other hand, the timing of the transfers is concerning.5

5 For instance, in addition to the three habeas petitions assigned to the undersigned

that were commenced by individuals on that bus heading south on June 11, 2026, three

additional cases have been assigned to the undersigned since the show cause hearing

presenting a similar fact pattern wherein shortly after a habeas petition was filed and before

a Text Order restraining transfer could be docketed, the petitioner was already in transit to

another jurisdiction outside the Second Circuit. See Molina Leyva v. Basuch, 6:26-cv-

The practical reality of these transfers, as confirmed by Respondents’ counsel, is

that a non-citizen who is arrested in a state like New York that is governed by the Second

Circuit, may be provided notice of his right to a bond hearing under § 1226(a) while in the

jurisdiction of the Second Circuit, but if that bond hearing is not held and the petitioner is

transferred to a jurisdiction like the Fifth Circuit, then the noncitizen will be held under

§ 1225(b) with no right to a bond hearing. Only with court intervention will a contrary

result occur, and of course jurisdiction attaches only when a habeas petition is filed. Wilson

v. Warden Flowers, FCI Danbury, No. 3:25-CV-01357 (VDO), 2025 WL 3719411, at *2

(D. Conn. Dec. 23, 2025) (“[H]abeas jurisdiction attaches on the initial filing for habeas

relief, and a district court retains jurisdiction even when a petitioner is transferred after

filing to the custody of a different custodian in a different judicial district.” (quoting Dailey

v. Pullen, No. 3:22-CV-1121 (SRU), 2023 WL 3456696, at *2 (D. Conn. May 15, 2023)));

see also Khalil v. Joyce, 771 F. Supp. 3d 268, 279 (S.D.N.Y. 2025) (“a petitioner’s

relocation after a ‘properly file[d]’ habeas petition does not deprive a district court of

jurisdiction” (quoting Rumsfeld v. Padilla, 542 U.S. 426, 440 (2004)).

Put another way, the undersigned has jurisdiction over only a few of the 60

individuals who were loaded on that bus on June 11. Thus, an individual can be taken into

custody in a jurisdiction governed by the Second Circuit, where by operation of law and

binding precedent he would be entitled to a bond hearing under § 1226(a), and yet he can

06645 EAW (filed June 22, 2026); Yero v. Joyce, 1:26-cv-01282 EAW (filed June 22, 2026);

Sanchez Gonzalez v. Bausch, 6:26-cv-06641 EAW (filed June 19, 2026).

be moved to a different jurisdiction before that bond hearing is held and then never afforded

the hearing that the Second Circuit says he should have received.

That said, this may be an issue for resolution on another date and in another case—

because here, we have one petitioner who was fortunate enough to commence a habeas

proceeding in this District prior to his transfer. And Respondents concede that under da

Cunha, he is held pursuant to § 1226(a) and entitled to a bond hearing. Thus, the only two

remaining issues to address are (1) whether Petitioner should be brought back to this

District, and (2) what procedures should be utilized at the bond hearing.

As to the first question, the Court concludes that a return to the Western District of

New York is warranted. Among other things, Petitioner’s presence in the district will assist

with resolution of the issues raised in the petition and provide easier access to counsel and

the Court. In addition, as set forth in more detail herein, Petitioner’s presence in the district

will ensure that Second Circuit standards are applied to the proceeding. The Court also

notes that at the time its restraining order was entered, Petitioner was still in transit, having

only recently departed from the BFDF. For these reasons, return is appropriate. See Ozturk

v. Hyde, 136 F.4th 382, 396 (2d Cir. 2025) (holding that the government failed to

demonstrate that it was likely to succeed on its contention that district court lacked

authority to order transfer of immigration petitioner); Cabrera Vicente v. Mullin, No. 26-

CV-4962 (DEH), 2026 WL 1724672, at *2 (S.D.N.Y. June 11, 2026) (“In light of

Petitioner’s interests in participating in further proceedings before this Court and in

maintaining adequate access to legal counsel through these proceedings, it is further

ordered that Petitioner shall not be transferred except to a facility within this District, the

Eastern District of New York, or the District of New Jersey absent further order of this

Court.” (citation modified)); Alvarez Ortiz v. Freden, 808 F. Supp. 3d 579, 586 (W.D.N.Y.

2025) (“In particular, this Court finds that the ‘[p]etitioner’s interests in participating in

further proceedings before this Court and in maintaining adequate access to legal counsel

through these proceedings’ warrant an order enjoining transfer.” (quoting Perez y Perez v.

Noem, No. 25-CV-4828 (DEH), 2025 WL 1908284, at *2 (S.D.N.Y. June 13, 2025))); see

also Loc. 1814, Int’l Longshoremen’s Ass’n, AFL-CIO v. New York Shipping Ass’n, Inc.,

965 F.2d 1224, 1237 (2d Cir. 1992) (“Once the district court acquires jurisdiction over the

subject matter of, and the parties to, the litigation, ‘the All Writs Act [28 U.S.C. § 1651]

authorizes a federal court to protect that jurisdiction.’”).6

The Court further concludes as to the second question that at the bond hearing, due

process requires the burden to be on the government. See, e.g., Lieogo v. Freden, No. 6:25-

CV-06615 EAW, 2025 WL 3290694, at *4-5 (W.D.N.Y. Nov. 26, 2025). “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

6 Respondents have since confirmed that Petitioner has been returned to the Western

District of New York. (See Dkt. 11). Although Petitioner filed a motion which challenged

bond proceedings scheduled for Petitioner outside this jurisdiction, Respondents confirmed

that Petitioner’s bond hearing would be conducted in New York (Dkt. 13), and the Court

denied Petitioner’s motion for relief as moot (Dkt. 14).

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 v. Eldridge, 424 U.S.319, 335 (1976). As

noted by the Supreme Court in Mathews, “[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)).

This Court has 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). Lieogo, 2025 WL 3290694, at *4; Adejola v. Barr, 408 F. Supp.

3d 284, 287 (W.D.N.Y. 2019). 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. But even

though Petitioner 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, 795 F. Supp. 3d 475, 496 (S.D.N.Y. 2025), the Court

finds that Respondents’ ongoing detention of Petitioner “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 that a bond hearing be provided where the government bears

the burden of proof.7

The Court has applied the Mathews v. Eldridge factors to Petitioner’s situation. As

for the first factor, Petitioner’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 Petitioner’s liberty interest is even

more heightened because the deprivation of his liberty does not stem from any criminal

adjudication. See Alvarez Ortiz, 808 F. Supp. 3d at 599 (“[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 modified)).

7 As explained in Alvarez Ortiz, the holding of Jennings v. Rodriguez, 583 U.S. 281

(2018), does not direct otherwise. See Alvarez Ortiz, 808 F. Supp. 3d at 596 (“In Jennings,

‘the Supreme Court held that [section] 1226(a) does not mandate that a clear and

convincing evidence burden be placed on the government in bond hearings, [but] it left

open the question of whether the Due Process Clause does.’. . . Since Jennings, however,

‘a number of district courts have taken up the question left open by the Supreme Court, and

there has emerged a consensus view that where, as here, the government seeks to detain an

alien pending removal proceedings, it bears the burden of proving that such detention is

justified.’” (quoting Darko v. Sessions, 342 F. Supp. 3d 429, 434-35 (S.D.N.Y. 2018))).

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. Petitioner’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. (quoting Valdez v. Joyce, 803 F. Supp. 3d 213, 218

(S.D.N.Y. 2025)); Torrez Arce v. Blanche, No. 9:26-CV-501 (ECC), 2026 WL 1430509, at

*5 (N.D.N.Y. May 21, 2026) (finding “there is a high risk of erroneous deprivation of

Petitioner’s liberty” where he was not given “an opportunity to post bond or argue for

release on conditions”); Hassan v. Bondi, No. 9:26-CV-00319 (BKS), 2026 WL 891602, at

*6 (N.D.N.Y. Apr. 1, 2026) (“The Court further finds that in absence of any individualized

assessment or identifiable government interest regarding Petitioner’s initial detention, due

process requires that the Government bear the burden of demonstrating dangerousness or

flight risk by clear and convincing evidence at any bond hearing.”); Gaspar v. Akshar, No.

9:26-CV-00118 (BKS), 2026 WL 699369, at *8 (N.D.N.Y. Feb. 17, 2026) (“Petitioner did

not have an opportunity to post bond or argue for release on conditions. There is no

evidence that there has been any change in circumstances between the grant of deferred

action and his detention. There is no evidence that anyone considered the fact that

Petitioner had been granted deferred action or made any individualized assessment of

whether he posed a danger to the community or flight risk. The risk of erroneous

deprivation of Petitioner’s liberty is therefore high.”). This is underscored by Respondents’

detention of Petitioner under a newly imposed interpretation of § 1225(b)(2) “that runs

counter to precedent and decades of past practice,” Alvarez Ortiz, 808 F. Supp. 3d at 600,

and which has now been squarely rejected by the Second Circuit in da Cunha. In other

words, Respondents took Petitioner into custody without any change in circumstances or

individualized assessment and have held him in custody without providing a bond hearing

or due process, despite a requirement to do so in this circuit. And if Petitioner had not

commenced this proceeding prior to his transfer to a facility in the Fifth Circuit, he would

be kept in custody with no right to be heard on his release. This for a Petitioner who has

been living in this country for two years and who was released by the government on his

own recognizance when he arrived, and where there has been no claimed change in

circumstances causing a revisit to that decision to initially release him. While Petitioner’s

detention has not been prolonged, the fact that a hearing has not been provided, or even

scheduled, and with no reliable safeguards in place to ensure that Petitioner will obtain a

hearing, leaves the Court to conclude that this factor weighs in favor of Petitioner.8 This

is particularly the case where, unless enjoined from doing so, the government appears to

be routinely transferring detainees from facility to facility, which raises the potential and

likelihood that an individual could be stripped of rights to which he or she is entitled

because of the transfer from this jurisdiction. And this potential is exponentially more

concerning for detainees without counsel.

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

8 Noncitizens “detained under § 1226(a) receive bond hearings at the outset of

detention.” Jennings, 583 U.S. at 306 (emphasis added). The question of how quickly a

bond hearing must be conducted is not before the Court at this time.

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

preventing danger to the community.’” Lopez Benitez, 795 F. Supp. 3d at 495-96. And the

Court also recognizes that the Second Circuit acknowledged that the “government’s interest

may have initially outweighed short-term deprivation of [a petitioner’s] liberty

interests. . . .” Velasco Lopez, 978 F.3d at 855. But there is nothing in the record

demonstrating that Petitioner presents those risks and there is no individualized assessment

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

reversing decades of past practice, Petitioner would not be detained. And at best, even if

Respondents had explained their interests, that means that one of the factors under the

Mathews analysis would favor the government, but that is not enough to overcome the

weight heavily in favor of Petitioner under the first and second factors.

Thus, to comply with due process, Petitioner must be afforded a bond hearing before

an immigration judge (“IJ”) at which Respondents shall have the burden to demonstrate

dangerousness or flight risk by clear and convincing evidence. See Gunes v. Warden,

Broome Cnty. Corr. Facility, No. 9:26-CV-00525 (BKS), 2026 WL 1383137, at *6

(N.D.N.Y. May 18, 2026) (“Having considered the relevant [Mathews] factors, the Court

concludes that under the present circumstances, Petitioner is entitled under § 1226 to a

prompt bond hearing consistent with due process at which the Government bears the

burden of proving, by clear and convincing evidence, that [he] is a danger to the community

or a flight risk.” (citation modified)); Habib v. Maldonado, No. 26-CV-2038 (OEM), 2026

WL 1088618, at *5 (E.D.N.Y. Apr. 22, 2026) (applying Mathews factors to conclude that

Petitioner was entitled to an individualized bond hearing pursuant to § 1226(a) detention

at which “the Government shall bear the burden of demonstrating, by clear and convincing

evidence, that Petitioner is a danger to the community or a flight risk”); Quintanilla v.

Decker, No. 21 CIV. 417 (GBD), 2021 WL 707062, at *3 (S.D.N.Y. Feb. 22, 2021) (“This

Court joins the overwhelming consensus of judges in this District in concluding that the

Government should bear the burden to deny liberty at any Section 1226(a) bond hearing,

regardless of the noncitizen’s length of detention.” (citation modified)). 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

Petitioner’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 Petitioner’s ability to pay and

alternative conditions of release.

Accordingly, for these reasons, the petition is granted to the extent that Petitioner

seeks a bond hearing, and a bond hearing shall be conducted in accordance with the

following terms:

1. Petitioner shall be granted a bond hearing before an immigration judge on or

before July 1, 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. After considering the balancing test set forth in Mathews v. Eldridge, 424

U.S. 319 (1976), the Court concludes that 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

July 2, 2026.

SO ORDERED. ) ff

ELIZABEDH ALWOLFORD-~

tet Fudge

United States District Court

Dated: June 26, 2026

Rochester, New York

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