The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
OLGUER HOMERO LAGUA RIVERA,
Petitioner,
v.
TODD BLANCHE, in his official capacity
as Attorney General of the United States;
KENNETH GENALO, in his official ORDER CONVERTING
capacity as Field Office Director, New York TEMPORARY RESTRAINING
Field Office, U.S. Immigration & Customs ORDER INTO A PRELIMINARY
Enforcement; DAVID VENTURELLA, in INJUNCTION
his official capacity as Acting Director, 26-CV-04420 (NRM)
U.S. Immigration and Customs
Enforcement; MARKWAYNE MULLIN, in
his official capacity as Secretary of the
Department of Homeland Security; RAUL
MALDONADO JR., in his official capacity
as Warden of the Metropolitan Detention
Center (MDC) in Brooklyn Facility,
Respondents.
NINA R. MORRISON, United States District Judge:
Petitioner Olguer Homero Lagua Rivera is a 39-year-old citizen of Ecuador who
entered the United States on December 6, 2021. On June 30, 2026, Petitioner was
detained in New York by Immigration and Customs Enforcement (“ICE”) while
walking home to his residence in Ridgewood, New York, and was detained at the
Metropolitan Detention Center (“MDC”) in Brooklyn, New York.
On July 22, 2026, Petitioner filed the instant Petition for a Writ of Habeas
Corpus (the “Petition”), ECF No. 1. The Court directed Respondents to file an initial
submission providing, inter alia, the statutory provision under which they asserted
the authority to detain Petitioner and any explanation as to whether the case was
distinguishable from this Court’s decision in H.A.C.F. v. Francis, No. 26-CV-00872
(NRM), 2026 WL 482607 (E.D.N.Y. Feb. 20, 2026), amended on reconsideration in
part, 2026 WL 861152 (E.D.N.Y. Mar. 30, 2026). On July 23, 2026, Respondents filed
a letter indicating that Petitioner was originally arrested and detained pursuant to 8
U.S.C. § 1226(a), but that Petitioner was now detained pursuant to 8 U.S.C. § 1231.
ECF No. 5 at 1. 1
Respondents did not respond to the portion of the Court’s Order to Show Cause
directing them to address whether the case was distinguishable from H.A.C.F., and
if so, how; they also did not respond to the portion of the Court’s order directing them
to indicate what process was provided to Petitioner prior to his arrest. The Court
then entered a Temporary Restraining Order (“TRO”) directing Respondents to
release Petitioner and enjoining Respondents from re-detaining Petitioner pending
the Court’s further consideration of the merits of the Petition.2 ECF No. 6 at 9. The
Court also ordered the parties to file further briefing explaining why the Petition
should or should not be granted. See id.
On July 29, 2026, Respondents filed a supplemental letter submission in which
they asserted that Petitioner was properly subject to detention under § 1231,
notwithstanding any potential deficiencies with his initial arrest under § 1226(a).
1 Unless otherwise indicated, all page references use the pagination generated
by the Electronic Case Filing System.
2 That TRO was extended for good cause on August 6, 2026. ECF No. 11.
ECF No. 9 at 1–2. As Respondents noted, an Immigration Judge (“IJ”) issued an
order of removal for Petitioner on July 15, 2026, fifteen days after Petitioner’s arrest.
See ECF No. 5 at 1, 5–6. Because Petitioner’s then-counsel originally stated to the IJ
that Petitioner had decided to waive his right to appeal, Respondents argued that the
IJ’s removal order became administratively final immediately upon issuance. ECF
No. 9 at 1–2; see id. at 12; 8 C.F.R. § 1003.39. As such, Respondents’ position was
that the 90-day mandatory detention period under § 1231(a) had commenced starting
on July 15, 2026, and that Petitioner was properly detained pursuant to that
provision. See Dzhabrailov v. Decker, No. 20-CV-3118 (PMH), 2020 WL 2731966, at
*5 (S.D.N.Y. May 26, 2020); 8 U.S.C. § 1231(a)(1)(B) (defining the beginning of the
removal period as “[t]he date the order of removal becomes administratively final”).
However, on August 5, 2026, Petitioner (now represented by different counsel
than when he appeared before the IJ) filed a response to Respondents’ submission,
arguing that § 1231 was not, in fact, applicable because on July 28, 2026, he appealed
the IJ’s removal order to the Board of Immigration Appeals (“BIA”); in that appeal,
he argues that his appellate waiver before the IJ was not knowing and voluntary.
ECF No. 10 at 3–4. In other words, Petitioner claims that his removal order was not
final upon issuance as previously asserted by Respondents, because his appeal from
that order is still pending. See El Hor v. Barr, No. 20-CV-6862 (CJS), 2021 WL
1429660, at *3 n.4 (W.D.N.Y. Apr. 15, 2021) (“Because Petitioner’s case is on appeal
to the BIA, his removal order is not final.”). Petitioner’s counsel has provided a copy
of his electronic receipt showing that his appeal was submitted to the BIA on August
10, 2026.3 ECF No. 14 at 4–5.
Based on this new representation, the Court directed Respondents to show
cause as to why the TRO should not be converted into a preliminary injunction
pending the resolution of Petitioner’s appeal from the IJ’s July 15, 2025 order of
removal. See Dkt. Order dated Aug. 13, 2026. On August 17, 2026, Respondents filed
a letter noting that “[t]o the extent that Petitioner has properly filed an appeal with
the BIA, and is therefore subject to detention pursuant to 8 U.S.C. § 1226(a),
Respondents acknowledge that the Court would not find this case distinguishable
from H.A.C.F. v. Francis, . . . and would grant Petitioner’s motion for preliminary
injunction,” reserving the right to appeal any decision based on the application of
H.A.C.F. ECF No. 15 at 1.
Upon review of the record, the applicable law, and the parties’ submissions,
the Court finds that § 1231 is indeed inapplicable to Petitioner at this time. Under
the governing regulations, “[a]n order of removal made by the immigration judge . . .
shall become final . . . [u]pon waiver of appeal by the respondent.” 8 C.F.R.
§ 1241.1(b). However, those same regulations also state that an order becomes final
“[u]pon dismissal of an appeal by the Board of Immigration Appeals.” Id. § 1241.1(a).
Although Petitioner entered an appellate waiver before the IJ, he is now challenging
the validity of that waiver through an appeal to the BIA. The Court joins its
3 Petitioner first filed his appeal by mail on July 28, 2026, ECF No. 10 at 31–
39, which was initially rejected by the BIA for improper filing, see ECF No. 13 at 3–
4. However, Petitioner subsequently cured the defect by filing his appeal
electronically within the allotted 30-day period for his appeal. See ECF No. 14 at 1–
2.
colleagues in other circuits in holding that under such circumstances, § 1231 does not
govern Petitioner’s detention. See, e.g., Fuga v. Warden, California City Det. Facility,
No. 26-CV-00654, 2026 WL 1396685, at *3–4 (E.D. Cal. May 19, 2026) (“Therefore,
despite Petitioner’s waiver of his right to an appeal, Petitioner’s removal order is not
administratively final until the BIA determines that his waiver was valid . . . . All
this leads the Court to conclude that Petitioner . . . is not subject to mandatory
detention as the removal period has not yet begun.”); J.R.M. v. Blanche, No. 26-CV-
3122, 2026 WL 2330647, at *3 (D. Minn. July 17, 2026) (“The validity of the appeal
waiver is a matter for the BIA to decide. Unless and until the BIA finds that
Petitioner’s appeal waiver was invalid and dismisses the appeal, the order of removal
is not administratively final. Thus, the statutory basis for Petitioner's detention is
not 8 U.S.C. § 1231.” (citations omitted)), report and recommendation adopted, 2026
WL 2227793 (D. Minn. Aug. 3, 2026); see also Alexander-Mendoza v. Att’y Gen., 55
F.4th 197, 205 (3d Cir. 2022) (holding that an appellate waiver “must be knowing,
intelligent, and voluntary” to “strip[] the BIA of its appellate jurisdiction,” and that
once the BIA loses jurisdiction, “an Immigration Judge’s order becomes final”);
Biwot v. Gonzales, 403 F.3d 1094, 1098 (9th Cir. 2005) (“Although the BIA is certainly
correct in a semantic sense, simply concluding that [the petitioner] ‘waived’ his appeal
begs the question whether the waiver was valid.”).
The Court further notes that in Hechavarria v. Sessions, 891 F.3d 49 (2d Cir.
2018), the Second Circuit held that where a noncitizen is subject to a final order of
removal, but that order has been stayed by the Court of Appeals, the mandatory
detention period under § 1231 has not yet commenced. In so holding, the Hechevarria
Court reasoned that “Section 1231 assumes that the immigrant’s removal is both
imminent and certain,” and that the “removal period” under the provision “is
dependent upon the assumption that no substantive impediments remain to the
immigrant’s removal.” Id. at 55. Because Petitioner is challenging the validity of his
removal order and is awaiting a final decision by the BIA, as well as any further
potential appellate remedies, Petitioner’s removal is far from “imminent and certain”
at this time, and § 1231 does not apply.
Presently, then, Petitioner’s detention is governed by § 1226(a), and remains
so until the final resolution of Petitioner’s appeal of his order of removal to the BIA
and/or the Second Circuit. In light of the record, the applicable law, and Respondents’
representation that this case is now controlled by this Court’s reasoning in H.A.C.F.,
the TRO is converted into a preliminary injunction. In so doing, the Court
incorporates by reference and reaffirms its initial findings and analysis in its July 23,
2026 temporary restraining order. See Lagua Rivera v. Blanche, No. 26-CV-04420
(NRM), 2026 WL 2129865 (E.D.N.Y. July 23, 2026).
The preliminary injunction shall remain in place until further Order of this
Court.
Accordingly, it is hereby:
ORDERED, that the Temporary Restraining Order is converted into a
Preliminary Injunction.
Respondents are hereby ENJOINED from re-detaining Petitioner absent
prior authorization of this Court, and while the terms of this Order otherwise remain
in effect.
Respondents shall continue to abide by all other terms of the Temporary
Restraining Order, which remain unchanged while the Preliminary Injunction
is in effect.
SO ORDERED.
/s/ Nina R. Morrison
NINA R. MORRISON
United States District Judge
Dated: August 18, 2026
Brooklyn, New York