Western District of New York • 1:26-cv-00467

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Mar 13, 2026

PETITION for Writ of Habeas Corpus, filed by Madbar Hossain.(DDS) (Entered: 03/13/2026)

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Mar 13, 2026

TEXT ORDER re 1 Petition for Writ of Habeas Corpus filed by Madbar Hossain To maintain the status quo, and solely so that the Court can make an informed decision about its authority to issue relief and whether any relief that it has the power to issue should be granted, the respondents are temporarily enjoined from removing the petitioner from the United States. Additionally, so that the petitioner can fully participate in these proceedings and maintain adequate access to legal counsel, the respondents also are enjoined from transferring the petitioner to any district outside the Western District of New York. See Perez y Perez v. Noem, 2025 WL 1908284, at *2 (S.D.N.Y. June 13, 2025) (collecting cases). In Alvarez Ortiz v. Freden, 808 F.Supp.3d 579 (W.D.N.Y. Nov. 4, 2025), this Court held that noncitizens who are present in the United States without having been admitted or paroled are not subject to mandatory detention under 8 U.S.C. § 1225(b)(2) but instead are subject to detention under section 1226. The Court further held "that constitutional due process requires the government to bear the burden of proving by clear and convincing evidence that the individual is either a danger to the community or a flight risk even at an initial bond hearing under section 1226(a)." Id. at 598. And in Cabrera Martinez v. Marich, --- F.Supp.3d ---, 2025 WL 3771228 (W.D.N.Y. Dec. 31, 2025), this Court held that detention of noncitizens who have remained in the country following expiration of parole is under 8 U.S.C. § 1226, not section 1225. It appears that the holding of Alvarez Ortiz and/or Cabrera Martinez may apply to the petitioner in this case. Accordingly, the respondents are hereby ORDERED TO SHOW CAUSE on or before 3/20/2026, why, in light of one or both of those decisions, (1) the petition in this case should not be granted, and (2) the Court should not order that the petitioner receive a bond hearing at which the government bears the burden to demonstrate, by clear and convincing evidence, that the petitioner is a danger to the community or a flight risk and at which the immigration judge must consider non-bond alternatives to detention or, if setting a bond, the petitioner's ability to pay. In his petition, Hossain also requests to proceed in forma pauperis (that is, as a person who should have the prepayment of the ordinary filing fee waived because he cannot afford it). Docket Item 1 at 12. The filing fee for a petition for a writ of habeas corpus is $5.00. 28 U.S.C. § 1914(a). Whenever an individual submits a petition for a writ of habeas corpus, the individual must either (a) pay the filing fee or (b) submit a motion to proceed IFP. As required by statute, an immigration detainee that seeks to proceed IFP must submit an affidavit or affirmation detailing the petitioner's assets and liabilities and swearing under oath the petitioner is unable to pay the filing fee. See 28 U.S.C. § 1915(a)(1); see also id. § 1915(h) (Prison Litigation Reform Act's other requirements for proceeding IFP only apply to a "prisoner... accused of, convicted of, sentenced for, or adjudicated delinquent for... violations of criminal law"). Here, Hossain did not pay the $5.00 filing fee, nor did he submit an affidavit swearing that he is unable to pay the filing fee, see 28 U.S.C. § 1915(a)(1). Despite this deficiency, in light of the serious issues raised in Hossain's petition, the Court deems it appropriate to conditionally grant his request to proceed in forma pauperis. This grant is conditional, however, on Hossain submitting either a motion to proceed in forma pauperis containing the required affidavit or affirmation or paying the $5.00 filing fee. SO ORDERED. Issued by Hon. Lawrence J. Vilardo on 3/13/2026. (ZHM)This was mailed to: the petitioner. (Entered: 03/13/2026)

Mar 13, 2026

Remark: Filer did not pay filing fee or submit an in forma pauperis request. The clerk mailed to the petitioner a pro se packet including a privacy notice, consent to proceed before a magistrate judge, pro se assistance program information and a civil case timeline. (DDS)