District of Massachusetts • 1:25-cv-13812

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Dec 11, 2025

PETITION for Writ of Habeas Corpus (2241) and Request for Emergency Injunctive Relief Filing fee: $ 5, receipt number AMADC-11414365 Fee status: Filing Fee paid., filed by Marcio Tavares Dias. (Attachments: # 1 Exhibit A, # 2 Civil Cover Sheet, # 3 Category Form)(Drago, Anthony) (Entered: 12/11/2025)

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Dec 11, 2025

ELECTRONIC NOTICE of Case Assignment. Judge Richard G. Stearns 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 Jennifer C. Boal. (SP) (Entered: 12/11/2025)

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Dec 11, 2025

Order

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Dec 11, 2025

Copy re 1 Petition for Writ of Habeas Corpus (2241) and 3 Order mailed to Todd M Lyons, Kristi L. Noem, Joseph D. McDonald, Jr., David Wesling and Michael Krol on 12/11/2025. (JAM) (Entered: 12/11/2025)

Dec 11, 2025

Copy Mailed

Dec 11, 2025

Notice of Case Assignment

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Dec 18, 2025

Notice of Appearance

#6

Dec 18, 2025

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

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Dec 19, 2025

Judge Richard G. Stearns: ELECTRONIC ORDER entered re 6 Response to Petition for Writ of Habeas Corpus - 2241, filed by David Wesling, Kristi Noem, Joseph D. McDonald, Jr., Todd Lyons, Michael Krol. The government submits testimony in its response to the Petition that Marcio Tavares Dias, as a native of Brazil and citizen of Portugal, was authorized on September 30, 2015, for a non-immigrant, non-visa, 90-day stay, and has remained in the United States since that date. Since detained on December 5, 2025 by ICE, Marcio Tavares Dias has been issued a Form 71-058 (Visa Waiver Program Notice of Intent to Issue a Final Administrative Removal Order), and a Form 71-061 (VWP Notice to Alien Ordered Removed/Departure Verification -- advising him that he is prohibited from entering, attempting to enter, or being in the United States for a period of 10 years from the date of his departure from the United States).Marcio Tavares Dias in his Petition submitted on December 11, 2025, admitted that he overstayed his visa, that he has no right to a bond hearing, and does not contest "any action to remove him." Pet. (Dkt # 1) para.s 13, 15. Rather he contends that his detention to effectuate that removal is "illegal" because he has no right to a hearing before an Immigration Judge so is "without any option to seek release from custody on bond." Id. para.s 14-15. The government responds that "[t]o be eligible to obtain admission under the VWP, the alien must agree to waive any right (1) to administrative or judicial review of an immigration officer's determination as to admissibility, and (2) any right to contest, other than on the basis of an application for asylum, any action for removal of the alien" after admission, citing 8 U.S.C. s 1187(b). Applicants who do not execute a waiver of such rights 'may not' be granted a visa waiver and will be refused admission and usually removed promptly." Id., see also 8 C.F.R. s 217.4(a)(1). In light of his status, the court asks Marcio Tavares Dias to show cause no later than December 24, 2025, why this court has continued jurisdiction over this matter. (MZ) (Entered: 12/19/2025)

Dec 19, 2025

Order

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Dec 23, 2025

Extension of Time to File Response/Reply

Dec 24, 2025

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

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Dec 29, 2025

Amended Complaint

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Dec 30, 2025

Response to Order to Show Cause

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Dec 31, 2025

Judge Richard G. Stearns: ELECTRONIC ORDER entered re 10 Amended Complaint filed by Marcio Tavares Dias; 11 Response to Order to Show Cause filed by Marcio Tavares Dias. Petitioner, Marcio Tavares Dias, is a 32-year-old native and citizen of Brazil, who also holds a passport from Portugal. On September 30, 2015, Tavares Dias was inspected and admitted to the United States at Miami, Florida, using his Portuguese passport under the Visa Waiver Program. Petitioner has lived and worked in the United States since the date of his entry. He and his wife have two U.S. Citizen children who are nine and seven years old. On December 5, 2025, he was stopped and detained without a warrant by ICE on his way to work. Once in custody, ICE issued Tavares Dias a VISA Waiver Program Notice of Intent to Issue a Final Administrative Removal Order (dated December 5, 2025). See Dkt #1-1. Under the Visa Waiver program citizens of certain countries designated by the Secretary of Homeland Security and the Secretary of State are permitted to visit the United States for a period of 90 days without applying for a visa at a U.S. Consulate prior to entering as a non-immigrant. As a condition of entry to the United States under the Visa Waiver Program, non-citizens from designated countries must waive their rights to appeal any decision by an immigration officer regarding their admissibility at a port-of-entry and any right to contest, other than on the basis of an application for asylum, an action for removal. See 8 U.S.C. § 1187(b). While Tavares Dias does not contest his manner of entry or the action to remove him (admitting that he has waived the right to a bond hearing as part of his initial admission to the country), he argues that ICE had no right to detain him without a warrant. Tavares Dias argues that he has been unlawfully held in custody since December 5, 2025, and that he fears being relocated to another facility without notice. First, Tavares Dias's contention that he could only have been arrested pursuant to a warrant issued by the Attorney General, is incorrect (he correctly states that the Attorney General in her discretion "may" issue a warrant). His more pertinent argument is that "but for" his allegedly illegal detention, ICE would never have discovered his identity, and his illegal overstay and then proceed to issue a final removal order and thus, on a fruit-of-the-poisonous-tree rationale, he is entitled to release. This argument is foreclosed by the Supreme Courts decision in Lopez-Mendoza, and its subsequent elaborations in the Circuit courts. According to the Supreme Court, "[t]he 'body' or identity of a defendant... in a criminal or civil proceeding is never itself suppressible as a fruit of an unlawful arrest, even if it is conceded that an unlawful arrest, search, or interrogation occurred." Immigration & Naturalization Serv. v. Lopez-Mendoza, 468 U.S. 1032, 1039 (1984). The majority of federal courts applying Lopez-Mendoza hold that neither identity nor records establishing identity are suppressible under the Fourth Amendment even when an initial detention is unlawful. See United States v. Del Torro Gudino, 376 F.3d 997, 1001 (9th Cir. 2004); United States v. Ortiz -Hernandez, 427 F.3d 567, 577 (9th Cir. 2005) (identity may not be suppressed even in cases of egregious constitutional violations when the Supreme Court said "'never' suppressible, it meant 'never'"); see also United States v. Navarro-Diaz, 420 F.3d 581, 588 (6th Cir. 2005) ("[T]he Supreme Court's holding in Lopez-Mendoza mandates that [defendant's] motions to suppress his identity be denied, regardless of whether this information was obtained in violation of his Fourth Amendment rights"); United States v. Farias-Gonzalez, 556 F.3d 1181, 1189 (11th Cir. 2009) (an allegedly illegal stop of an alien, which revealed that he had been previously deported, did not require suppression of the alien's identify, citing Lopez-Mendoza). Under this line of decisions, whether Dias was detained illegally or not has no bearing on the validity of his final order of removal (the lawfulness of which he does not challenge). He is, however, I believe, correct in his final contention that his removal must be effected by ICE within 90 days and, if ICE fails to do so he may refile his petition.The court orders the Petition DISMISSED, but also orders ICE to hold Marcio Tavares Dias in the District of Massachusetts for an additional ten days before his removal to Brazil (or Portugal) to enable any appeal of this Order to the First Circuit that he may choose to undertake. The ten days are not to be counted in computing the 90-day removal period.(MZ) (Entered: 12/31/2025)

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Dec 31, 2025

Order Dismissing Case

Dec 31, 2025

Order