District of Massachusetts • 1:25-cv-12420

#1

Sep 02, 2025

First PETITION for Writ of Habeas Corpus (2241) Filing fee: $ 5, receipt number AMADC-11211796 Fee status: Filing Fee paid., filed by Angel Antonio de Los Reyes Gonzalez. (Attachments: # 1 Category Form, # 2 Civil Cover Sheet)(Pomerleau, Todd) (Entered: 09/02/2025)

#2

Sep 02, 2025

Judge Indira Talwani: EMERGENCY ORDER CONCERNING STAY OF TRANSFER OR REMOVAL(RN) (Entered: 09/02/2025)

#3

Sep 03, 2025

ELECTRONIC NOTICE of Case Assignment. Chief District Judge Denise J. Casper assigned to case. If the trial Judge issues an Order of Reference of any matter in this case to a Magistrate Judge, the matter will be transmitted to Magistrate Judge Paul G. Levenson. (JKK) (Entered: 09/03/2025)

#4

Sep 03, 2025

General Order 19-02, dated June 1, 2019 regarding Public Access to Immigration Cases Restricted by Federal Rule of Civil Procedure 5.2(c). (JAM) (Entered: 09/03/2025)

#5

Sep 03, 2025

Service Order-2241 Petition

Sep 03, 2025

Notice of Case Assignment

#6

Sep 04, 2025

Notice of Appearance

#7

Sep 04, 2025

Answer/Response to Petition for Writ of Habeas Corpus - 2254

#8

Sep 04, 2025

Extension of Time

Sep 09, 2025

Order on Motion for Extension of Time to File Response/Reply

#10

Sep 12, 2025

Memorandum of Law

#11

Sep 15, 2025

Chief District Judge Denise J. Casper: ELECTRONIC ORDER entered re 1 Petition for Writ of Habeas Corpus (2241), filed by Angel Antonio de Los Reyes Gonzalez. Having considered the habeas petition (the "Petition") filed by Petitioner Angel Antonio de Los Reyes Gonzalez ("Petitioner"), D. 1, the opposition of Respondents (collectively, the "government"), D. 7, and Petitioner's reply, D. 10, the Court DENIES the petition, D. 1.Background. Petitioner is a Guatemalan citizen. D. 1 ¶ 21. He entered the United States in 2002. Id. ¶ 22. On or about December 1, 2009, Petitioner "was ordered removed," and states that it "is unclear if he was removed pursuant to that order or if he left the United States voluntarily." Id. ¶ 23. In his reply brief, Petitioner says that the removal order was granted in absentia, D. 10 at 6, but does not further explain the circumstances of his prior departure from the United States. In 2013, Petitioner reentered the United States through Mexico without inspection. D. 1 ¶ 22. On or about April 16, 2025, Petitioner applied for T Nonimmigrant Status (a "T-Visa") and for advance permission to enter as a nonimmigrant. Id. ¶ 24. On August 29, 2025, Petitioner appeared for a biometrics appointment in connection with his T-Visa application. Id. ¶ 26. At this appointment, Petitioner was detained by Immigration and Customs Enforcement ("ICE") and ultimately moved to the Plymouth County Correctional Facility, where he remains. See id. ¶¶ 1, 26. Last week, on September 10, 2025, he moved in immigration court to reopen the 2009 removal order. D. 10 at 6. Petitioner filed the Petition on September 2, 2025, D. 1, alleging that his arrest and detention violate: (1) his rights under the Fourth Amendment, because his interest in applying for lawful status renders the arrest and detention unreasonable, id. ¶ 28; (2) his rights under the Due Process Clause of the Fifth Amendment, because the government impeded and "took advantage of" his efforts to apply for lawful status and detained him outside of the removal period for the 2009 removal order, id. ¶¶ 33-35; and (3) 8 U.S.C. § 1231, because the government has detained and seeks to remove him more nearly sixteen years after the 2009 removal order, D. 1 ¶¶ 38-39. In his reply brief, Petitioner newly argues that his "arrest and detention at his scheduled biometrics appointment" violate the Administrative Procedure Act ("APA"). D. 10 at 2-4.Discussion. Petitioner alleges that his arrest and detention are unlawful because his "private interest to apply for lawful status" outweighs the government's interest in seizure. D. 1 ¶ 28; see D. 10 at 6-7. But "[w]hen probable cause for an arrest exists, [an] arresting officer need not balance the 'costs and benefits' of making the arrest." Finamore v. Miglionico, 15 F.4th 52, 60 (1st Cir. 2021) (quoting Atwater v. City of Lago Vista, 532 U.S. 318, 354 (2001)). He does not claim that his arrest was otherwise unlawful, such as for lack of probable cause. See, e.g., United States v. De La Cruz, 835 F.3d 1, 6 & n.4, 7 (1st Cir. 2016) (noting that ICE officers had probable cause to administratively arrest noncitizen for unlawful presence); 8 U.S.C. § 1226 (outlining pre-removal arrest and detention procedure pursuant to warrant); id. § 1357(a)(2) (authorizing certain warrantless immigration arrests). Moreover, this and other of Petitioner's claims, at base, challenge the government's decision to effectuate his removal while his T-Visa application is still pending. See D. 1 ¶¶ 4, 28, 33, 35; D. 10 at 2-5. Petitioner's challenges to the timing of ICE's removal decision fall within 8 U.S.C. § 1252(g)'s jurisdictional bar, which applies to "claims that the execution of the removal order now—e.g., while [a] visa application[] [is] pending—violates various constitutional, statutory, and regulatory provisions." K.K. v. Garland, No. 23-cv-6281, 2025 WL 274431, at *2 (W.D.N.Y. Jan. 23, 2025); see Dambrosio v. McDonald, No. 25-cv-10782, 2025 WL 1070058, at *3 (D. Mass. Apr. 9, 2025); Aziz v. Chadbourne, No. 07-cv-11806, 2007 WL 3024010, at *1 (D. Mass. Oct. 15, 2007); see also Gomes v. Smith, 381 F. Supp. 3d 120, 123-24 (D. Mass. 2019). Although the government addressed the jurisdictional bar at length, D. 7 at 12-15, Petitioner has not responded to these arguments, D. 10 at 2-7. Petitioner's Fourth Amendment and APA claims fail for lack of jurisdiction, as does his Fifth Amendment claim to the extent it is premised on the same argument.Even if the Court had jurisdiction, "in the First Circuit, there is no constitutional right to remain in the United States to pursue an application for adjustment of status in the face of a deportation or exclusion order." Li v. Hodgson, No. CA 12-12347, 2012 WL 6738262, at *3 (D. Mass. Dec. 27, 2012); cf. Devitri v. Cronen, 289 F. Supp. 3d 287, 295 (D. Mass. 2018) (concluding petitioners had "a significant interest in the right to file a motion to reopen and the opportunity to have their fears of persecution and torture adjudicated before their removal" due to "statutory right to move to reopen and [statutory] entitlement to not be deported to a country where persecution would occur"). With respect to Petitioner's newly raised APA claim, moreover, as the government pointed out, D. 7 at 6, the T-Visa regulations specifically provide that filing an application "has no effect on DHS authority or discretion to execute a final order of removal." 8 C.F.R. § 214.204(b)(2)(i). The Court does have jurisdiction to review the legality of Petitioner's detention. See Kong v. United States, 62 F.4th 608, 612-18 (1st Cir. 2023); but see id. at 618 (signaling that § 1252(g) bar may be implicated in instances of brief detention integral to executing removal order). The government recognizes that Petitioner is outside of the ninety-day removal period contemplated in 8 U.S.C. § 1231(a)(1)(A). D. 7 at 5; see Kong, 62 F.4th at 620 n.12. It instead argues that it has authority to detain Petitioner under 8 U.S.C. § 1231(a)(6) because he is inadmissible to the United States, and his heretofore brief detention pursuant to that provision does not offend due process under Zadvydas v. Davis, 533 U.S. 678 (2001). D. 7 at 5. As another session of this Court recently explained, "the Zadvydas Court was considering the question of indefinite detention, not an initial detention decision." Primero v. Mattivelo, No. 25-cv-11442, 2025 WL 1899115, at *5 (D. Mass. July 9, 2025); accord Zavvar v. Scott, No. 25-cv-2104, 2025 WL 2592543, at *4 (D. Md. Sept. 8, 2025). The regulations governing "[c]ontinued detention of inadmissible... aliens beyond the removal period," which Petitioner cites in his argument that his detention violates § 1231(a)(6), D. 10 at 6, support this reading of the statute. 8 C.F.R. § 241.4; see Jimenez v. Cronen, 317 F. Supp. 3d 626, 636 (D. Mass. 2018) (explaining that the "presumption created by Zadvydas... is based on the assumption that ICE followed the process prescribed by its regulations to ensure that continued detention was justified"). Regardless, recognizing that this "area of law... affords the Executive Branch tremendous discretion, this Court is not persuaded that expiration of the removal period wholly divests the [g]overnment of power it otherwise holds to arrest an alien—particularly where the statute, regulations, and the Supreme Court have all unambiguously sanctioned post–removal period detention." I.V.I. v. Baker, No. CV JKB-25-1572, 2025 WL 1811273, at *3 (D. Md. July 1, 2025); see Rodriguez-Guardado v. Smith, 271 F. Supp. 3d 331, 335 (D. Mass. 2017) (noting that continued detention regulations "do not require a [custody] determination hearing when, as here, the execution of a removal order is impending"). In these circumstances, where Petitioner has been detained for approximately three weeks, does not contest that he is presently subject to a final removal order and has not suggested that the government has granted him relief from enforcement of that order, his continued detention at present is not unreasonable under Zadvydas. See Zadvydas, 533 U.S. at 699-700.While the government has argued that ICE plans to execute Petitioner's removal to Guatemala "as soon as possible," D. 7 at 11, it has offered no further information about its plans, and Petitioner's detention may ultimately become unreasonable. The Court acknowledges Petitioner's representation that on September 10, 2025, he filed a motion to reopen pursuant to 8 U.S.C. § 1229a(b)(5)(C), which automatically stays his removal while the motion is considered. See D. 10 at 6 (citing Kaweesa v. Gonzalez, 450 F.3d 62, 68 (1st Cir. 2006); 8 U.S.C. § 1229a(b)(5)(C)); Chen v. Escareno, No. H-09-0270, 2009 WL 3073928, at *3-4 (S.D. Tex. Sept. 18, 2009).For all of these reasons, the Court DENIES the Petition, D. 1, without prejudice.(LMH) (Entered: 09/15/2025)

Sep 15, 2025

Order

#12

Sep 17, 2025

Chief District Judge Denise J. Casper: ORDER entered. ORDER DISMISSING CASE(LMH) (Entered: 09/17/2025)