District of Massachusetts • 1:26-cv-10944

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Feb 20, 2026

Petition for Writ of Habeas Corpus - 2241

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Feb 20, 2026

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 M. Page Kelley. (NMC) (Entered: 02/20/2026)

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Feb 20, 2026

Chief District Judge Denise J. Casper: ORDER entered. ORDER CONCERNING SERVICE OF PETITION AND STAY OF TRANSFER OR REMOVAL. (SEC) (Entered: 02/20/2026)

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Feb 20, 2026

General Order 19-02, dated June 1, 2019 regarding Public Access to Immigration Cases Restricted by Federal Rule of Civil Procedure 5.2(c). (SEC) (Entered: 02/20/2026)

Feb 20, 2026

Notice of Case Assignment

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Mar 03, 2026

Notice of Appearance

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Mar 03, 2026

Notice - Other

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Mar 03, 2026

Extension of Time to File Response/Reply

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Mar 04, 2026

Chief District Judge Denise J. Casper: ELECTRONIC ORDER entered granting 7 Motion for Extension of Time to March 11, 2026 to File Response/Reply to Habeas Petition by Michael Krol, Todd Lyons, Kristi Noem, David Wesling (LMH) (Entered: 03/04/2026)

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Mar 04, 2026

Amended Document - NOT Motion

Mar 04, 2026

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

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Mar 11, 2026

Answer/Response to Petition for Writ of Habeas Corpus - 2241

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Apr 03, 2026

Chief District Judge Denise J. Casper: ELECTRONIC ORDER entered. Having reviewed the amended petition for habeas relief under 28 U.S.C. § 2241 (the "Petition") filed by Petitioner Bruno Andrade Pereira ("Petitioner"), D. 9, and Respondents' opposition to same, D. 10, the Court DENIES the Petition.Factual Background. Petitioner is a noncitizen from Brazil currently detained in the custody of Immigration and Customs Enforcement ("ICE"). D. 9 ¶¶ 1, 9-10; D. 10-1 ¶¶ 6, 18. Petitioner entered the United States on approximately February 20, 2005, at which point he was arrested by immigration officials. D. 9-1 at 3; D. 10-1 ¶¶ 7-8; see D. 9 ¶ 2. Shortly thereafter, Petitioner was found guilty of illegal entry in violation of 8 U.S.C. § 1325(a)(1), sentenced to time served and returned to ICE custody. D. 10-1 ¶ 9. On approximately February 26, 2005, Petitioner was released on an order of recognizance. Id. ¶ 10; see D. 9-1 at 3; D. 9 ¶ 2. After a further encounter with immigration authorities on or about November 16, 2006, Petitioner was placed in removal proceedings, and an immigration judge granted him voluntary departure under safeguards on December 21, 2006. D. 9 ¶¶ 3-4; D. 9-1 at 3; D. 10-1 ¶¶ 11-12. The immigration judge set a deadline of January 22, 2007, for Petitioner to voluntarily depart, and in the alternative, ordered Petitioner removed to Brazil. D. 10-1 ¶ 12; see D. 9-1 at 3. Petitioner, who remained in custody, D. 9 ¶¶ 4-6, did not voluntarily depart from the United States by the January 22, 2007 deadline, see id.; D. 10-1 ¶¶ 12-14. ICE subsequently obtained travel documents for Petitioner from the Brazilian Consulate, D. 10-1 ¶¶ 13-14, and removed Petitioner from the United States on March 21, 2007, D. 9 ¶ 5; D. 9-1 at 3; D. 10-1 ¶ 14. Petitioner later reentered the United States and, on approximately January 20, 2019, was apprehended by immigration officials, who then issued Petitioner a notice to appear and released him on an order of recognizance due to lack of space. See D. 9 ¶¶ 1, 7; D. 9-1 at 3; D. 9-2; D. 10-1 ¶ 15. The notice to appear was docketed in immigration court on December 23, 2019. D. 9 ¶ 7; D. 9-3 at 1. For reasons unknown, Petitioner's removal proceedings were terminated on October 4, 2024. D. 9 ¶ 8; D. 9-1 at 4; D. 10-1 ¶ 16; see 8 C.F.R. § 1003.18(d)(1) (authorizing immigration judges to terminate removal proceedings in certain circumstances). On or around February 17, 2026, Petitioner was arraigned in state court for operating a motor vehicle under the influence of alcohol and was taken into ICE custody. See D. 9-1 at 4; D. 10-1 ¶¶ 17-18. The same day, ICE issued Petitioner a Notice of Intent/Decision to Reinstate Prior Order, D. 9 ¶ 9; D. 9-1 at 4; D. 9-4 at 1; D. 10-1 ¶ 18, which is based on the January 22, 2007, removal order, D. 9-4 at 1. On March 3, 2026, Respondents notified the Court of their intent to transfer Petitioner to Louisiana to prepare for his removal from the United States. D. 6 at 1-2. Respondents conceded that this Court would retain jurisdiction over the Petition. Id. at 2 n.2. Petitioner alleges that his custody is properly governed by 8 U.S.C. § 1226(a) and that, accordingly, he is entitled to a bond hearing. D. 9 ¶ 29. Petitioner contends that his detention violates his rights under the Due Process Clause of the Fifth Amendment. Id. ¶ 30. He seeks a temporary restraining order prohibiting his transfer outside of the District of Massachusetts pending resolution of the Petition, revocation of the Notice of Intent/Decision to Reinstate Prior Order and a bond hearing. Id. at 9-10. Discussion. As an initial matter, Respondents contend that 8 U.S.C. § 1252(b)(9) strips the Court of jurisdiction to consider the Petition. See D. 10 at 5-10. The Court agrees that to the extent Petitioner here seeks to challenge the "validity" of the 2007 removal order and asks the "Court [to] decide[] whether the purported final order of removal is valid or invalid," D. 9 ¶ 36; see id. at 10 (requesting Court order Respondents to revoke Notice Intent/Decision to Reinstate Prior Order), the Court lacks the authority regarding same. See 8 U.S.C. § 1252(a)(5), (b)(9) (channeling judicial review of orders of removal to courts of appeals, and removing jurisdiction to consider same in habeas proceedings); Gicharu v. Carr, 983 F.3d 13, 18 (1st Cir. 2020) (explaining that request to compel rescission of removal order fell within scope of § 1252(b)(9)); cf. Dep't of Homeland Sec. v. Regents of the Univ. of California, 591 U.S. 1, 19 (2020) (explaining that § 1252(b)(9) is not implicated where, inter alia, noncitizen is not asking for review of removal order).Petitioner also claims that he is challenging the "existence" of the removal order against him. D. 9 ¶¶ 34, 36. Some courts have concluded that they had jurisdiction to consider a habeas petition where the petitioner challenged the existence, as a factual matter, of a removal order. See Abrego Garcia v. Noem, No. 25-cv-02780-PX, 2025 WL 3545447, at *9 (D. Md. Dec. 11, 2025) (rejecting application of § 1252(b)(9) where habeas petitioner was "not challenging a final order of removal" but instead arguing "that his detention lack[ed] lawful authority because there [was] no such order"); see also Madu v. U.S. Atty. Gen., 470 F.3d 1362, 1366-67 (11th Cir. 2006) (concluding, where petitioner alleged "that he left the United States by the deadline set forth in the [immigration judge's] voluntary departure order, and that, as a result, the voluntary departure order never became a removal order," that such challenge was to existence of removal order, which "is a different question than whether an extant removal order is lawful"). It is unclear whether the First Circuit shares this view. See Gicharu, 983 F.3d at 18-19 (distinguishing Madu, in case in which there was a final order of removal). In any event, Petitioner's case appears to be unlike those where a habeas petitioner contests the "existence" of a removal order. See, e.g., Alvarez-Lopez v. Adducci, No. 12-cv-11952, 2012 WL 2407702, at *3 (E.D. Mich. June 26, 2012) (concluding court had jurisdiction over challenge to existence of removal order where petitioner "assert[ed] that he voluntarily departed within the time period specified by the [immigration judge], and thus, there [was] no final order of removal"). "Voluntary departure is a discretionary form of relief that allows an alien who is subject to a deportation order a period of time in which to leave the country of his own volition." Bocova v. Gonzales, 412 F.3d 257, 264-65 (1st Cir. 2005), superseded by regulation in unrelated part as recognized in Ivanov v. Holder, 736 F.3d 5, 20 (1st Cir. 2013) (Kayatta, J., dissenting); see 8 U.S.C. § 1229c. "As a formal matter, orders of removal and grants of voluntary departure are entered as alternate orders that comprise different facets of a single ukase." Id. at 267. According to the Board of Immigration Appeals, "the term 'voluntary departure with safeguards' is commonly used to characterize the requirement that an alien remain in custody until he or she departs from the United States." M-A-S-, 24 I. & N. Dec. 762, 766 (BIA 2009); see 8 C.F.R. §§ 240.25(b), 1240.26(b)(3), (c)(3) (2006) (describing permissible conditions of voluntary departure). Here, even as alleged, Petitioner did not voluntarily depart by the immigration judge's deadline and instead asserts that ICE prevented him from effectuating a timely voluntary departure. See D. 9 ¶¶ 4-6. Moreover, Petitioner does not contend that he lacked notice in 2007 that the immigration judge's decision would result in a removal order if he failed to voluntarily depart. Cf., e.g., Cruz Medina v. Noem, 806 F. Supp. 3d 536, 544-45 (D. Md. 2025) (concluding that § 1252(b)(9) did not apply because "Petitioner's current claim arose long after entry of his final removal order" and "at the time of [petitioner's] removal proceedings, he could not possibly have appealed a future determination by the government that he was removable to [a third country]" (emphasis in original)). Neither party provided the removal order to the Court nor detailed the circumstances of the grant of voluntary departure. The Court notes that under the regulation in effect at the time Petitioner was granted voluntary departure, a noncitizen granted such relief by an immigration judge before removal proceedings concluded was typically required to present travel documents as a condition of voluntary departure, and if he did not do so by a deadline, an alternate order of removal automatically took effect. 8 C.F.R. § 1240.26(b)(3)(i)-(ii) (2006). For voluntary departure granted at the conclusion of removal proceedings, a noncitizen would have already been required to present travel documentation to the immigration judge in order to obtain voluntary departure. Id. § 1240.26(c)(2). Here, the Court understands Petitioner to have been granted voluntary departure before the conclusion of removal proceedings, where "Petitioner failed to present a valid travel document to ICE by January 22, 2007" and that ICE subsequently requested and obtained travel documents from the Consulate of Brazil. D. 10-1 ¶¶ 13-14. Petitioner does not allege otherwise, but instead contends that he "had no ability to schedule his own flight or procure his own ticket to return to Brazil" and that he "was unable to independently comply with the immigration judge's order." D. 9 ¶¶ 4, 6. As framed by Petitioner, it appears that such claims could have been raised around the time of Petitioner's removal, see Ramos-Ramos v. Sec'y, Dep't of Homeland Sec., No. 25-3205, 2025 WL 3516642, at *2 n.1 (6th Cir. Dec. 8, 2025) (rejecting, as untimely, claims that "the terms of [noncitizen's] voluntary departure violated due process or were otherwise unfair because he was in federal custody at the time and was unable to voluntarily depart the country"), and Petitioner has not identified any basis for a conclusion that § 1252(b)(9) does not deprive this Court of jurisdiction to consider them now. To the extent the Petition separately challenges his detention, see D. 9 at 8-9, this Court does have jurisdiction to consider same. Kong v. United States, 62 F.4th 608, 614 (1st Cir. 2023) (noting that "we have held that district courts retain jurisdiction over challenges to the legality of detention in the immigration context"); see Aguilar v. U.S. Immigr. & Customs Enf't Div. of Dep't of Homeland Sec., 510 F.3d 1, 11 (1st Cir. 2007) (noting that § 1252(b)(9) does not preclude habeas review of detention claims). Even to that extent, however, Petitioner has not shown that he is entitled to habeas relief in the form of release from detention or a bond hearing. Petitioner's argument that once immigration authorities apply the procedures of 8 U.S.C. § 1226 to a noncitizen, "that authority remains binding and cannot be changed by the mere passage of time," D. 9 ¶ 22, is misplaced here. Petitioner cites De Andrade v. Moniz, 802 F. Supp. 3d 325 (D. Mass. 2025), for this proposition, but that case dealt with the particular circumstances surrounding initial parole of a noncitizen into the country under 8 U.S.C. § 1182(d)(5)(A). De Andrade, 802 F. Supp. 3d at 330-32. Such parole occurs "under the legal fiction of [the noncitizen] being on the threshold of entry" into the country, id. at 331, and the court concluded that the government's subsequent decision to conditionally parole the noncitizen under § 1226 "extinguished th[at] legal fiction" such that the government could no longer treat the noncitizen as an "applicant for admission" under § 1225, id. at 332. Petitioner's reliance upon Jennings v. Rodriguez, 583 U.S. 281 (2018), is also unpersuasive, as in the portion upon which Petitioner relies, the Court merely interpreted the meaning of the word "for" as used in § 1225. Jennings, 583 U.S. at 302. Here, Respondents do not contend that Petitioner is an "applicant for admission" subject to detention under § 1225 but instead assert that his detention is authorized under § 1231, see D. 10 at 11-15, which addresses detention of noncitizens "ordered removed" from the United States. 8 U.S.C. § 1231; cf. Romero v. Hyde, 795 F. Supp. 3d 271, 281 (D. Mass. 2025) (concluding that reopening of habeas petitioner's removal proceedings shifted detention authority from § 1231 back to § 1226). Petitioner's argument is, therefore, unavailing. For the foregoing reasons, the Court DENIES the Petition. D. 9. (LMH) (Entered: 04/03/2026)

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Apr 03, 2026

Order Dismissing Case

Apr 03, 2026

Order