Rhoney

United States District Court

WESTERN DISTRICT OF NEW YORK

______________________________________________

MAIKEL JOSE RAMON PEREZ,

Petitioner,

v.

PHILIP L. RHONEY, in his official

capacity as Acting Deputy Field

Officer Director; KRISTI NOEM, in

her official capacity as Secretary of 1:26-CV-305-BDP

Homeland Security; TODD M. DECISION & ORDER

LYONS, in his official capacity as

Acting Director of Immigration and

Customs Enforcement; and PAMELA

BONDI, in her official capacity as

Attorney General of the United

States

Respondents.

__________________________________________

Petitioner Maikel Jose Ramon Perez, a citizen of Venezuela, is currently detained

by Immigration and Customs Enforcement (“ICE”) in the Buffalo Federal Detention

Facility (“BFDC”) in Batavia, New York. He has been in prison for about a year and a half.

The Government does not contend that he posed a risk of flight or a danger to the

community. Pending before the Court are Perez’s Petition for a Writ of Habeas Corpus

and the Government’s Motion to Dismiss the Petition. For the reasons set forth, the Court

grants, in part and denies in part, Perez’s Petition and orders that he be afforded a bond

hearing within 5 days of the date of this Order. The Court denies as moot the

Government’s Motion to Dismiss.

BACKGROUND

I. Factual Background

Perez is a former member of the Venezuelan military who fled Venezuela in June

2021 because he feared government actors would harm him because he engaged in

political and anti-corruption activities. He entered the United States without inspection

from Mexico on or about May 25, 2024. The following day, he was taken into custody by

the Department of Homeland Security and eventually placed in ICE detention. On June

24, 2024, he was paroled into the United States for one year and informed that his parole

would automatically terminate if he left the country.

On February 5, 2025, Perez entered Canada and sought asylum, but his application

was denied by Canadian authorities. Perez was then returned to the United States and

detained by DHS. On March 27, 2025, DHS issued Perez a Notice and Order of Expedited

Removal and Determination of Inadmissibility. Then, on April 3, 2025, Perez was

afforded a credible fear interview, which resulted in a positive fear determination. On

April 21, 2025, DHS issued Perez a Notice to appear, which vacated his expedited removal

order because of the credible fear determination. On June 24, 2025, Perez filed an

application with U.S. Citizenship and Immigration Services requesting asylum,

withholding of removal, and protection pursuant to the Convention Against Torture

(“CAT”).

An immigration judge (“IJ”) held a hearing on Perez’s application on September

15, 2025. The IJ denied Perez’s asylum application, but granted him Deferral of Removal

pursuant to the CAT. Both parties appealed that decision to the Board of Immigration

Appeals (“BIA”). On May 20, 2026, the BIA dismissed Perez’s appeal and reversed the IJ’s

decision to grant Perez relief under the CAT. On the same day, Perez appealed the BIA’s

decision to the Second Circuit where that appeal remains pending.

LEGAL STANDARD

I. Motion to Dismiss

Under Federal Rule of Civil Procedure 12(b), a complaint—or, as here, a pleading

that styles itself as a complaint and as a petition—may be dismissed for “failure to state

a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6); see Williams v.

DHS/ICE/Immigr. Ct., 2023 WL 3585849, at *1 (W.D.N.Y. May 22, 2023). A complaint is

properly dismissed for failure to state a claim under Rule 12(b)(6) if it does not include

“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)).

II. Section 2241 Petition

“Congress has granted federal district courts, ‘within their respective

jurisdictions,’ the authority to hear applications for habeas corpus by any person who

claims to be held ‘in custody in violation of the Constitution or laws or treaties of the

United States.’” Rasul v. Bush, 542 U.S. 466, 473 (2004) (quoting 28 U.S.C. §§

2241(a), (c)(3)). 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, he

“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)).

ANALYSIS

The parties disagree as to which statute applies to Perez’s detention now that the

BIA has ruled against him. As noted, Perez has filed a Petition for Review of the BIA’s

decision and a motion for a stay of removal, both of which are currently pending before

the Second Circuit. As explained below, the Court finds that Perez is detained pursuant

to 8 U.S.C. §1226 and that the Constitution requires that Respondents provide him with

a bond hearing.

I. Perez is detained pursuant to 8 U.S.C. §1226.

“The [G]overnment’s power to detain an immigrant must be grounded in a specific

provision of the INA.” Hechavarria v. Sessions, 891 F.3d 49, 54 (2d Cir. 2018). Perez argues

that he is detained pursuant to 8 U.S.C. §1226, which requires that, due to his prolonged

detention, he be afforded a bond hearing in accordance with the Due Process Clause. The

Government argues that Perez is detained pursuant to 8 U.S.C. §1231 or, alternatively,

pursuant to 8 U.S.C. §1225(b), and is not afforded a bond hearing under either provision.

Because the mandatory detention period in Section 1231 has not begun yet, the Court

agrees with Perez.

Section 1231’s mandatory detention period begins on the latest of the following: (i)

The date of the order of removal becomes administratively final; (ii) If the removal order

is judicially reviewed and if a court orders a stay of the removal of the alien, the date of

the court’s final order; (iii) If the alien is detained or confined (except under an

immigration process), the date the alien is released from detention or confinement. 8

U.S.C. §1231(a)(1)(B). Accordingly, “if the removal period has begun, the noncitizen is

detained under section 1231(a); if it has not yet begun, the noncitizen is detained under

section 1226.” Agard v. Searls, 2023 WL 6880474, at *3 (W.D.N.Y. Oct. 18, 2023) (citing

Hechavarria, 891 F.3d at 54–55).

The Court concludes that Section 1231(a)(1)(B)(ii) controls because of the existence

of a forbearance agreement between DHS and the Second Circuit. Under this agreement,

the Government has assured the Second Circuit that a noncitizen detainee who has a

petition for review pending before the Circuit will not be removed. In re Immigr. Petitions

for Rev. Pending in U.S. Ct. of Appeals for the Second Cir., 702 F.3d 160, 162 (2d Cir. 2012).

Perez’s removal order is pending before the Second Circuit and he has moved for a stay

of removal, but that motion has not been decided. However, because of the forbearance

agreement, Perez will not be removed until the Second Circuit adjudicates his Petition for

Review. Accordingly, Perez contends that the forbearance policy amounts to a court-

ordered stay, such that §1231 is not yet triggered. The Government, on the other hand,

maintains that the forbearance agreement does not amount to a stay as that term is used

in Section 1231(a)(1)(B)(ii).

Like Chief Judge Wolford, this Court agrees “with the overwhelming majority of

judges in this Circuit that have ruled the Second Circuit’s forbearance policy amounts to

a court-ordered stay, such that § 1231 is not yet triggered.” Ahmed v. Rhoney, 2026 WL

262553, at *1 (W.D.N.Y. Feb. 2, 2026); see also Rodriguez Sanchez v. Decker, 431 F. Supp. 3d

310, 314 (S.D.N.Y. 2019) (same); Villatoro v. Joyce, 2024 WL 68533, at *3 (S.D.N.Y. Jan. 5,

2024) (same and collecting cases); Singh v. Francis, 2026 WL 507890, at *3 (E.D.N.Y. Feb.

24, 2026) (same); but see, e.g., Loachamin v. Kurzdorfer, 792 F. Supp. 3d 353, 358–59

(W.D.N.Y. 2025). The Court concludes that the agreement functions as a stay within the

meaning of Section 1231(a)(1)(B)(ii) because of Section 1231’s assumption “that the

immigrant’s removal is both imminent and certain.” Hechavarria, 891 F.3d at 55.

Accordingly, the “definition of removal period [contemplated by Section 1231] is

dependent upon the assumption that no substantive impediments remain to the

immigrant’s removal.” Id. But that is not the case here because of Perez’s pending petition

for review and his motion for a stay of removal. Thus, Perez is not detained pursuant to

Section 1231. Instead, he is detained pursuant to Section 1226 because that provision

“governs the detention of immigrants who are not immediately deportable.” Hechavarria,

891 F.3d at 57. Perez is not immediately deportable because his deportation has been

effectively stayed by the Government’s forbearance agreement with the Second Circuit.

Consequently, the Court must now determine whether Perez’s detention under Section

1226 comports with the Due Process Clause.

II. Perez’s is entitled to a bond hearing.

A basic principle of our constitutional structure is that the “Due Process Clause

applies to all ‘persons’ within the United States, including aliens, whether their presence

here is lawful, unlawful, temporary, or permanent.” Zadvydas v. Davis, 533 U.S. 678, 693

(2001); see also Reno v. Flores, 507 U.S. 292, 306 (1996) (Scalia, J.) (“It is well established that

the Fifth Amendment entitles aliens to due process of law in deportation proceedings.”).

Perez argues that the Government has and continues to violate his due process rights

because his detention has become unreasonably prolonged. The Court agrees with him.

In Black v. Decker, 103 F.4th 133, 140–41, 151 (2d Cir. 2024), the Second Circuit

analyzed claims by noncitizens detained pursuant to Section 1226 under the factors set

forth by the Supreme Court in Mathews v. Eldridge, 424 U.S. 319 (1976), to determine what

process, if any, noncitizens were entitled to because of the length of their detention.

Accordingly, the Court will analyze Perez’s claims under the Mathews framework. As

discussed below, the Court concludes that Mathews factors weigh in his favor.

The first Matthews factor is the private interest, which weighs heavily in Perez’s

favor. In this case, “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 v.

Decker, 978 F.3d 842, 851 (2d Cir. 2020). This is especially true since Perez’s immigration

detention is not predicated on a criminal adjudication. See Black, 103 F.4th at 151. Instead,

he received temporary protected status in the United States, left for Canada, was denied

asylum in the Great White North, and was then returned to DHS and detained. “In this

country liberty is the norm and detention is the carefully limited exception.” Velasco Lopez,

978 F.3d at 851 (citation modified). Accordingly, the private interest factor weighs heavily

in Perez’s favor.

“The second Mathews factor is ‘the risk of an erroneous deprivation of such

[private] interest through the procedures used, and the probable value, if any, of

additional or substitute procedural safeguards.’” Black, 103 F.4th at 152 (quoting Mathews,

424 U.S. at 335). This factor also cuts in Perez’s favor. Though the Court now holds that

Perez is detained pursuant to Section 1226, the Government has operated under the

assumption that he is detained under Section 1231 and has described the limited process

Perez is currently receiving. The Government states that he receives “periodic custody

reviews from” DHS and when noncitizens, like Perez, remain in detention after the

90-day period provided for by Section 1231, DHS conducts further review three months

after the initial 90-day review. This limited process is insufficient for a noncitizen

imprisoned pursuant to Section 1226 and risks erroneously imprisoning a noncitizen for

an unreasonably prolonged duration. In Black, the Second Circuit held that even

noncitizens found guilty of crimes and then detained are entitled to bond hearings. Perez

is on significantly surer footing because he is not in jail pursuant to a criminal conviction.

103 F.4th at 151. Further, the added safeguard of a bond hearing ensures that noncitizens

receive the process to which they are entitled to under the Constitution. Thus, the Court

finds that this factor also favors Perez.

“The third Mathews factor considers ‘the Government’s interest, including the

function involved and the fiscal and administrative burdens that the additional or

substitute procedural requirement would entail.’” Black, 103 F.4th at 153 (quoting

Mathews, 424 U.S. at 335). This factor also weighs in Perez’s favor. The administrative

burden of a bond hearing is not onerous given that the hearing can occur in person or

electronically. As to the Government’s interest, it has essentially argued that it must be

able to detain Perez indefinitely to effectuate the lawful administration of the

immigration laws. The effective administration of the nation’s immigration laws is an

obviously important factor. However, providing Perez with a bond hearing at which an

immigration judge can determine whether he is a flight risk or a danger to the community

or whether there are bail conditions that can be imposed, does not compromise the

Government’s ability properly to administer the immigration laws. At the same time, a

bail hearing will afford incarcerated individuals an opportunity to obtain review as to

whether their imprisonment is conterminous with the due process to which they are

entitled.

Therefore, the Court finds that the Mathews factors weigh in Perez’s favor. Further,

Perez has now been detained for over 18 months and it is unclear when the Second Circuit

will adjudicate his Petition for Review. The Court concludes that his detention by DHS

has become unreasonably prolonged and due process requires that the Government

provide him with a bond hearing.1

CONCLUSION

It is therefore ORDERED that the Verified Petition for A Writ of Habeas Corpus

(ECF No. 1) is hereby GRANTED in part and GRANTED in part in that Respondents

are ORDERED to provide Perez with a bond hearing no later than five days from the

date of this Order. At the hearing, the Government shall bear the burden to show, by clear

and convincing evidence, that Perez is a flight risk or a danger to the community and that

1 Alternatively, the Government argues that even if Perez is not detained pursuant to Section 1231, he is

then subject to mandatory detention as provided in 8 U.S.C. 1225(b). This argument is unpersuasive as

he would still be entitled to a bond hearing for the reasons articulated by Judge Newman in Beshkani v.

Ball, 2026 WL 2408091, at *2–4 (W.D.N.Y. Aug. 18, 2026).

no alternative to detention could mitigate the risk of danger or flight. See Black, 103 F.4th

at 155–59.

It is further ORDERED that Respondents’ Motion to Dismiss the Petition for Writ

of Habeas Corpus (ECF No. 11) is hereby DENIED as moot.

It is further ORDERED that Perez is awarded attorneys’ fees and costs under the

Equal Access to Justice Act.

It is further ORDERED that all other relief not expressly granted is hereby

DENIED.

The Clerk of Court is respectfully directed to enter judgment consistent with this

Order and to close the case.

SO ORDERED.

/s/ Barrington D. Parker

Hon. Barrington D. Parker Senior Circuit

Judge of the U.S. Court of Appeals for the

Second Circuit, sitting by designation

Dated: September 2, 2026