District of Massachusetts • 1:26-cv-13639

#1

Aug 09, 2026

PETITION for Writ of Habeas Corpus (2241) Filing fee: $ 5, receipt number AMADC-11946341 Fee status: Filing Fee paid., filed by Elyezer Dias De Souza. (Attachments: # 1 Civil Cover Sheet, # 2 Category Form)(Silva, Jonatas) Modified on 8/10/2026 Removing Duplicate Text (NMC). (Entered: 08/09/2026)

#2

Aug 10, 2026

ELECTRONIC NOTICE of Case Assignment. District Judge Julia E. Kobick 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. (SP) (Entered: 08/10/2026)

#3

Aug 10, 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). (Currie, Haley) (Entered: 08/10/2026)

#4

Aug 10, 2026

District Judge Julia E. Kobick: ORDER CONCERNING SERVICE OF PETITION AND STAY OR TRANSFER OF REMOVAL entered.The answer or responsive pleading is due no later than August 17, 2026. (Currie, Haley) (Entered: 08/10/2026)

#5

Aug 10, 2026

Copies of the following were mailed to all respondents on 8/10/2026: 1 Petition for Writ of Habeas Corpus (2241) and 4 Order Concerning Service of Petition and Stay or Transfer of Removal (Currie, Haley) (Entered: 08/10/2026)

Aug 10, 2026

Copy Mailed

Aug 10, 2026

Notice of Case Assignment

#6

Aug 13, 2026

RESPONSE/ANSWER to 1 Petition for Writ of Habeas Corpus (2241), by Patricia Hyde, Michael Krol, Todd M Lyons, Antone Moniz, Markwayne Mullin. (Tolkoff, Benjamin) (Entered: 08/13/2026)

#7

Aug 13, 2026

District Judge Julia E. Kobick: ELECTRONIC ORDER entered. Petitioner Elyezer Dias De Souza, a citizen of Brazil who entered the United States approximately five years ago, filed a petition for a writ of habeas corpus under 28 U.S.C. § 2241 on August 9, 2026 seeking his immediate release or, alternatively, a bond hearing pursuant to 8 U.S.C. § 1226(a). ECF 1, ¶¶ 1-3, 9. He was arrested and detained by the U.S. Immigration and Customs Enforcement (“ICE”) on August 8, 2026. Id. ¶ 2. De Souza remains in ICE’s custody at Plymouth County Correctional Facility in Plymouth, Massachusetts. Id. ¶ 9.The respondents argue that De Souza is lawfully detained as an applicant for admission under 8 U.S.C. § 1225(b). They acknowledge, however, that “the legal issues presented in this Petition are similar to those addressed by this Court in” Gomes v. Hyde, 804 F. Supp. 3d 265 (D. Mass. 2025), dos Santos v. Noem, No. 25-cv-12052-JEK, 2025 WL 2370988 (D. Mass. Aug. 14, 2025), and Sampiao v. Hyde, 799 F. Supp. 3d 14 (D. Mass. 2025). ECF 6, at 1. In those cases, this Court held that 8 U.S.C. § 1226(a)—not Section 1225(b)—governed the petitioner’s detention. Gomes, 804 F. Supp. 3d at 275-76; dos Santos, 2025 WL 2370988, at *7; Sampiao, 799 F. Supp. 3d at 27-28. The respondents contend that “[s]hould the Court follow its reasoning in Gomes, dos Santos, and Sampiao, it would reach the same result here.” ECF 6, at 1. The Court agrees and therefore concludes that Section 1226(a), not Section 1225(b), governs De Souza’s detention.Noncitizens like De Souza “detained under Section 1226(a) have the right to request a bond hearing before an Immigration Judge, at which the government bears the burden to prove that continued detention is justified.” Sampiao, 799 F. Supp. 3d at 19-20. Bond may be denied only if the government “either (1) prove[s] by clear and convincing evidence that [the noncitizen] poses a danger to the community or (2) prove[s] by a preponderance of the evidence that [the noncitizen] poses a flight risk.” Hernandez-Lara v. Lyons, 10 F.4th 19, 41 (1st Cir. 2021).For the foregoing reasons, De Souza’s petition for a writ of habeas corpus under 28 U.S.C. § 2241, ECF 1, is GRANTED. The respondents are ORDERED to provide him with a bond hearing pursuant to 8 U.S.C. § 1226(a) within 7 days of this Order. The respondents are further ORDERED to file a status report within 24 hours of the Immigration Judge’s decision on bond, stating whether De Souza has been granted bond, and, if his request for bond was denied, the reasons for that denial, or whether he has been released, and if so, the date, time, and location of his release. The respondents should include a copy of the Immigration Judge’s decision with their status report. (Currie, Haley) (Entered: 08/13/2026)

#8

Aug 13, 2026

NOTICE of Appearance by Benjamin Tolkoff on behalf of Timothy Baptiste, Patricia Hyde, Michael Krol, Todd M Lyons, Antone Moniz, Markwayne Mullin (Tolkoff, Benjamin) (Entered: 08/13/2026)

Aug 13, 2026

Order

#9

Aug 25, 2026

Status Report

#10

Aug 29, 2026

Enforce Judgment

#11

Sep 14, 2026

RESPONSE to Motion re 10 MOTION to Enforce Judgment filed by Patricia Hyde, Michael Krol, Todd M Lyons, Antone Moniz, Markwayne Mullin. (Tolkoff, Benjamin) (Entered: 09/14/2026)

#12

Sep 16, 2026

District Judge Julia E. Kobick: ELECTRONIC ORDER entered.On August 13, 2026, the Court granted petitioner Elyezer Dias De Souza’s petition for a writ of habeas corpus and ordered the respondents to provide him with a constitutionally adequate bond hearing under 8 U.S.C. § 1226(a) within seven days. ECF 7 . At the bond hearing a week later, the Immigration Judge (“IJ”) found that De Souza “poses a flight risk and that there are no conditions or combination of conditions that would reasonably assure his attendance at future hearings.” ECF 9-1, at 6. These findings were based on De Souza’s charges for operating after a suspended license and negligent operation. Id. at 3. Contending that his August 20, 2026, bond hearing was constitutionally inadequate, De Souza has filed a motion seeking to enforce the Court’s prior order and requesting that he be released. ECF 10, ¶¶ 1-2, 46-48. For the reasons that follow, the Court will GRANT the motion and order his immediate release.The respondents argue, as a threshold matter, that the Court lacks jurisdiction under 8 U.S.C. § 1226(e). In pertinent part, that statute prohibits courts from reviewing “[t]he Attorney General’s discretionary judgment regarding the application of” 8 U.S.C. § 1226(a) and from “set[ting] aside any action or decision by the Attorney General under this section regarding the. . . denial of bond.” 8 U.S.C. § 1226(e). While “the government maintains discretion in each case to grant or deny bond,” such discretion is limited by “the constitutional restraints applicable to all government action.” Hernandez-Lara v. Lyons, 10 F.4th 19, 34 (1st Cir. 2021). Where, as here, a habeas petitioner asserts that “his detention resulted from constitutionally defective procedures,” he may “challenge those procedures.” Brito v. Garland, 22 F.4th 240, 253 (1st Cir. 2021).The respondents also contend that, by failing to appeal the IJ’s denial of bond to the Board of Immigration Appeals (“BIA”), De Souza has not exhausted his administrative remedies. Exhaustion may be excused, however, where a petitioner could “‘suffer irreparable harm if unable to secure immediate judicial consideration of his claim.’” Portela-Gonzalez v. Sec’y of the Navy, 109 F.3d 74, 77 (1st Cir. 1997) (quoting McCarthy v. Madigan, 503 U.S. 140, 147 (1992)). This includes situations where “the petitione[r] remains detained” pending the exhaustion of administrative remedies. Brito, 22 F.4th at 256. Waiver of the exhaustion requirement is warranted here because De Souza, who remains in the custody of U.S. Immigration and Customs Enforcement, is likely to experience irreparable harm if he is unable to seek habeas relief until the BIA decides any appeal of the IJ’s denial of bond or he gets another bond hearing, where the respondents have not specifically committed to a timeline for holding a further bond hearing. See Gomes v. Hyde, 804 F. Supp. 3d 265, 272-73 (D. Mass. 2025); Sampiao v. Hyde, 799 F. Supp. 3d 14, 25-26 (D. Mass. 2025).On the merits, the procedures utilized at De Souza’s bond hearing were constitutionally defective, in violation of De Souza’s due process rights, because the IJ did not give any meaningful consideration to alternatives to detention. The First Circuit has made clear that “IJs must consider . . . alternative conditions of release during section 1226(a) bond hearings.” Hernandez-Lara, 10 F.4th at 45 (citing Hernandez v. Sessions, 872 F.3d 976, 990-91 (9th Cir. 2017)). At the bond hearing, De Souza offered to accept conditions of supervision, including a prohibition on driving until lawfully authorized and any reporting or electronic-monitoring requirement deemed appropriate. ECF 10, ¶ 40; Manual Filing of Audio Recording. The IJ did not address the alternatives to detention at the hearing, and the IJ’s decision does not mention consideration of any less restrictive alternatives. Nor, in their opposition to De Souza’s motion, do the respondents dispute that De Souza’s bond hearing was constitutionally defective because of the IJ’s failure to consider alternatives to detention. ECF 11 . Under the circumstances, the IJ did not afford De Souza a constitutionally adequate bond hearing, and he is entitled to release. See Costa v. McDonald, No. 25-cv-13469-AK, 2026 WL 371198, at *3 (D. Mass. Feb. 10, 2026).Accordingly, De Souza’s motion, ECF 10, is GRANTED. The respondents are ORDERED to release De Souza by no later than 6:00 p.m. on September 17, 2026. The respondents must also file a status report by September 18, 2026 confirming their compliance with this Order. (Currie, Haley) (Entered: 09/16/2026)

Sep 16, 2026

Order on Motion to Enforce Judgment

#13

Sep 17, 2026

Status Report

#14

Sep 17, 2026

Judgment