Opinion

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

MARCOS da SILVA

Petitioner, . 3:26-cv-1126

: (JUDGE MARIANI)

V.

WARDEN, FCi LEWISBURG, et al., .

Respondents.

MEMORANDUM OPINION

I. BACKGROUND

On April 29, 2026, Petitioner Marcos da Silva (‘Petitioner’), a citizen of the Brazil

residing in the United States since 1999, filed a pro se petition for writ of habeas corpus

pursuant to 28 U.S.C. § 2241. (Doc. 1). Petitioner is detained within the Middle District of

Pennsylvania and names as Respondents, Warden of FCI Lewisburg, Todd Lyons, Acting

Director of ICE, and Field Office Director, ICE ERO Newark.

Petitioner entered the United States in 1999 on a B2 visitor visa and adjusted his

status to a conditional permanent resident in August 2005. (Docs. 6 at 3, 6-2 at 2). His

conditional permanent resident status was terminated based on his failure to timely file the

required petition. (/d.). In July 2008, Petitioner was issued a Notice to Appear charging him

as removable under Section 237(a)(1)(D)(i) of the Immigration and Nationality Act. (/d.).

After several years of proceedings in the immigration court, Petitioner was ordered

removed from the United States to Brazil on December 2, 2015. (/d.); (Doc. 6-2 at 3). The

following year, an Immigration Judge (“lJ”) granted his motion to reopen his removal

proceedings. (/d.).

On August 7, 2025, Petitioner was arrested outside his residence by ICE/ERO and

has remained detained since. (Doc. 6-2 at 2). Because Respondents are detaining

Petitioner pursuant to 8 U.S.C. § 1226(a), he was afforded a bond hearing in October 2025.

At the bond hearing, an IJ found Petitioner was a danger to the community and denied

bond.’ (Docs. 6 at 2, 6-4 at 1). On March 23, 2026, an |J ordered Petitioner removed to

Brazil. (Doc. 6-5). Petitioner has appealed his removal order to the Board of Immigration

Appeals and does not have a final order of removal.

In the petition, Petitioner seeks his immediate release or a second bond hearing.

Respondents oppose the petition, claiming that Petitioner failed to exhaust his

administrative remedies. (Doc. 6 at 2). Respondents further claim that neither Section

1226(a) nor due process entitle Petitioner to a second bond hearing before an IJ and that

the Court lacks jurisdiction under 8 U.S.C. § 1226(e) to review the lJ’s discretionary

determination to deny bond. (Id).

ll. STANDARD OF REVIEW

Absent suspension, the Constitution guarantees the availability of the writ of habeas

corpus “to every individual detained within the United States.” Hamdi v. Rumsfeld, 542 U.S.

' A review of Petitioner's Form |-213 indicates that Petitioner was twice convicted of DUI in 2005 and

2012. (Doc. 6-2 at 3). Petitioner was also arrested for simple assault-domestic violence on June 29, 2024,

ane 27, 2025, although no party presented any information regarding the disposition of these charges.

507, 525 (2004) (citing U.S. Const., Art|, § 9, cl. 2). Pursuant to 28 U.S.C. § 2241, a

federal district court may grant a habeas petition where a petitioner's immigration detention

is “in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. §

2241(c)(3). Historically, “the writ of habeas corpus has served as a means of reviewing the

legality of Executive detention, and it is in that context that its protections have been

strongest.” .N.S. v. St. Cyr, 533 U.S. 289, 301 (2001). Claims brought by immigration

detainees seeking relief from their confinement “fall within the core of the writ of habeas

corpus.” Trump v. J.G.G., 604 U.S. 670, 672 (2025). Itis well established that a federal

habeas corpus petitioner generally has the burden of proving facts entitling him to a

discharge from custody. Goins v. Brierley, 464 F.2d 947, 949 (3d Cir. 1972) (citations

omitted).

lll. ANALYSIS

Petitioner seeks his immediate release or a second bond hearing before an IJ. As

noted, Respondents have detained Petitioner for nearly ten months pursuant to 8 U.S.C. §

1226. Section 1226(a) provides in relevant part:

(a) Arrest, detention, and release

On 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.

Except 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.

8 U.S.C. § 1226(a). It is undisputed that Petitioner received a bond hearing before an lJ in

October 2025 and was denied bond after an IJ determined he was a danger to the

community.

Petitioner first challenges the nearly ten-month duration of his civil immigration

detention. (Doc. 1 at 3). However, duration alone cannot “sustain a due process challenge

by a detainee who has been afforded the process contemplated by § 1226(a) and its

implementing regulations.” Borbot v. Warden Hudson Cnty. Corr. Facility, 906 F.3d 274,

277 (3d Cir. 2018). “Unlike § 1226(c) detainees . . . who were detained for prolonged

periods without being given any opportunity to apply for release on bond,” here Petitioner

“was granted meaningful process prior to filing his habeas petition.” /d. at 279-80.

Accordingly, Petitioner is not entitled to habeas relief based on the duration of his detention

under Section 1226(a).

To the extent Petitioner challenges the constitutionality of the procedures used by

the lJ in denying bond and determining he was a danger to the community, those

challenges lack merit. (Doc. 1 at 4-7). Although Petitioner claims that the IJ “did not

require the Government to meet a clear and convincing standard,” (/d. at 5), that standard

does not apply here because his detention is governed by 8 U.S.C. § 1226(a). See Borbot,

906 F.3d at 279 (noting that, unlike § 1226(c), “under § 1226(a) the burden remains on the

detainee at all times”). After careful consideration, the Court finds Petitioner fails to allege

any constitutional infirmities with the bond hearing that could entitle him to habeas relief and

that any remaining claims raised in the petition lack merit.2 Accordingly, the Court will deny

the petition. See Gonzalez Hernandez v. Warden, 2026 WL 1725860, at *1 (M.D. Pa. June

15, 2026) (denying habeas relief where petitioner “already received two bond hearings”

under Section 1226(a) failed to adequately challenge the “constitutionality of those

determinations themselves’).

IV. CONCLUSION

For the foregoing reasons, Petitioner’s habeas petition will be denied. A separate

Order follows. BO i

cee AM bir

obert DWariani

United States District Judge

2 To the extent Petitioner argues he is not a danger to the community, (Doc 1 at 8) the Court lacks

jurisdiction to review the discretionary determinations of the lJ. See 8 U.S.C. § 1226(e) ("No court may set

aside any action or decision by the Attorney General under this section regarding the detention of any alien

or the revocation or denial of bond or parole.”); see also Chim v. Tsoukaris, 2026 WL 1650938, at *3 (D.N.J.

June 8, 2026) (“Here, Petitioner's challenge to the lU’s denial of bond based on him being a flight risk is a

challenge to the lJ’s credibility determinations and weighing of the evidence, which are discretionary

determinations beyond the review of this Court.”) (citing 8 U.S.C. § 1226(e)). Should Petitioner demonstrate

a material change in circumstances, he may seek a custody redetermination before an IJ. See 8 C.F.R. §

1003.19(e) (“After an initial bond redetermination, an alien’s request for a subsequent bond redetermination

shall be made in writing and shall be considered only upon a showing that the alien’s circumstances have

changed materially since the prior bond redetermination.”).