Western District of New York • 1:26-cv-01092

#1

May 28, 2026

First PETITION for Writ of Habeas Corpus and TRO Motion ( Filing fee $ 5 receipt number ANYWDC-5843572.), filed by Gerson Alexsi Hernandez Inestroza. (Attachments: # 1 Memorandum in Support of Habeas, # 2 Civil Cover Sheet, # 3 Text of Proposed Order To Show cause, # 4 Supplement Notice of TRO, # 5 Memorandum in Support TRO Memorandum in support, # 6 Exhibit Proof that asylum was filed, # 7 Exhibit Proof that asylum was pending, # 8 Exhibit Work Authorization, # 9 Exhibit Proof of no crimes.)(Bohorquez Romero, Andrea) (Entered: 05/28/2026)

#2

May 29, 2026

MOTION for Temporary Restraining Order by Gerson Alexsi Hernandez Inestroza. (Attachments: # 1 Memorandum in Support)(MMG) (Entered: 05/29/2026)

#3

May 29, 2026

TEXT ORDER re 1 Petition for Writ of Habeas Corpus filed by Gerson Alexsi Hernandez Inestroza, 2 MOTION for Temporary Restraining Order filed by Gerson Alexsi Hernandez Inestroza So that the petitioner can fully participate in these proceedings and maintain adequate access to legal counsel, the petitioner's motion for a temporary restraining order, Docket Item 2, is GRANTED IN PART, and the respondents 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 Barbosa da Cunha v. Freden, --- F.4th ---, 2026 WL 1146044 (2d Cir. Apr. 28, 2026), the Second Circuit 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. And in Cabrera Martinez v. Marich, 816 F. Supp. 3d 356 (W.D.N.Y. 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. Additionally, this Court held in Alvarez Ortiz v. Freden, 808 F. Supp. 3d 579 (W.D.N.Y. 2025), "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. It appears that the holdings of da Cunha, 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 6/5/2026, why, in light 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. SO ORDERED. Issued by Hon. Lawrence J. Vilardo on 5/29/2026. (ZHM) Modified on 5/29/2026 to correct typographic error (ZHM). (Entered: 05/29/2026)

May 29, 2026

Notice of Availability of Magistrate Judge: A United States Magistrate of this Court is available to conduct all proceedings in this civil action in accordance with 28 U.S.C. 636c and FRCP 73. The Notice, Consent, and Reference of a Civil Action to a Magistrate Judge form (AO-85) is available for download at http://www.uscourts.gov/services-forms/forms. (MMG)

May 29, 2026

E-Filing Notification regarding attachments to 1 First PETITION for Writ of Habeas Corpus: Document # 4, Supplement Notice of TRO, and document # 5, Memorandum in Support TRO Memorandum in support, were refiled as a separate entry as they are not a part of the petition. Only exhibits, civil cover sheet, summons, and marshal forms may be attached to an initiating document. No action required. (MMG)

May 29, 2026

Case assigned to Hon. Lawrence J. Vilardo. Notification to chambers of online civil opening. (MMG)

#4

Jun 04, 2026

NOTICE of Appearance of Government Attorney: Adam A. Khalil, appearing on behalf of Todd Blanche, Joseph E. Freden, Todd Lyons, Markwayne Mullin, Philip Rhoney, U.S. Department of Homeland Security. CLERK TO FOLLOW UP. (Khalil, Adam) (Entered: 06/04/2026)

#5

Jun 04, 2026

REPLY/RESPONSE to re 3 Text Order,,,,,,,,,, Terminate Motions,,,,,,,,, filed by Todd Blanche, Joseph E. Freden, Todd Lyons, Markwayne Mullin, Philip Rhoney, U.S. Department of Homeland Security. (Khalil, Adam) (Entered: 06/04/2026)

#6

Jun 05, 2026

TEXT ORDER re 1 Petition for Writ of Habeas Corpus filed by Gerson Alexsi Hernandez Inestroza On 5/28/2026, this Court ordered the respondents to show cause why, in light of the Second Circuit's decision in da Cunha v. Freden, --- F.4th ---, 2026 WL 1146044 (2d Cir. Apr. 28, 2026), and this Court's decision in Alvarez Ortiz v. Freden, 808 F. Supp. 3d 579 (W.D.N.Y. 2025), "(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." Docket Item 3 . In response, the "[r]espondents acknowledge" that the Second Circuit recently held that "'[s]ection 1225(b)(2)(A) does not apply to... noncitizens,'" such as the petitioner, "'who are present in the United States after entering the country without inspection and admission, and who were not apprehended while entering the country or shortly thereafter.['] Rather, the court ruled, [s]ection 1226(a) applies." Docket Item 5 at 2 (quoting da Cunha, 2026 WL 1146044, at *2). The respondents have reserved all rights, and this Court appreciates their efforts "to conserve judicial and party resources" by not rehashing issues that this Court and the Second Circuit already have decided. See id. at 1-2.The respondents argue that the burden of proof at a bond hearing under section 1226(a) should be on the petitioner, however, they do not distinguish this case from Alvarez Ortiz. See id. at 2. Accordingly, for the reasons explained in Alvarez Ortiz and da Cunha, this Court GRANTS the petition and ORDERS the respondents to provide the petitioner with an individualized bond hearing before an immigration judge within seven calendar days of the date of this order. At that hearing, the government shall bear the burden to demonstrate, by clear and convincing evidence, that the petitioner is a danger to the community or a flight risk. At that bond hearing, the immigration judge must consider non-bond alternatives to detention or, if setting a bond, the petitioner's ability to pay. If the respondents fail to provide such a hearing within seven calendar days, they shall immediately release the petitioner. On or before 6/15/2026, the respondents shall file a status report confirming that the petitioner has either been granted a bond hearing in compliance with this order or released from custody. SO ORDERED. Issued by Hon. Lawrence J. Vilardo on 6/5/2026.(ZHM) (Entered: 06/05/2026)

#7

Jun 15, 2026

Letter filed by Todd Blanche, Joseph E. Freden, Todd Lyons, Markwayne Mullin, Philip Rhoney, U.S. Department of Homeland Security re bond hearing. (Khalil, Adam) (Entered: 06/15/2026)

#8

Jun 17, 2026

TEXT ORDER re 7 Letter filed by Markwayne Mullin, U.S. Department of Homeland Security, Joseph E. Freden, Philip Rhoney, Todd Blanche, Todd Lyons The respondents have filed a letter, Docket Item 7, indicating that an immigration judge held a bond hearing in compliance with this Court's order, Docket Item 6, but found that the government met its burden on risk of flight. If the petitioner believes there are any further issues properly before this Court, the petitioner may show cause within 14 days of this order. If the petitioner does not show cause why issues remain before this Court within 14 days, the Clerk of Court shall enter judgment and close this case without further order. SO ORDERED. Issued by Hon. Lawrence J. Vilardo on 6/17/2026. (ZHM)Clerk to Follow up (Entered: 06/17/2026)

#9

Jul 02, 2026

JUDGMENT in favor of Gerson Alexsi Hernandez Inestroza against Joseph E. Freden, Markwayne Mullin, Philip Rhoney, Todd Blanche, Todd Lyons. Signed by Andrew W. Moeller, Clerk of Court on 7/2/2026. (TME) (Entered: 07/02/2026)