Eastern District of New York • 1:26-cv-05639

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Sep 11, 2026

PETITION for Writ of Habeas Corpus filing fee $ 5, receipt number ANYEDC-20624287, filed by Agapito Acosta. (Attachments: # 1 Exhibit A - Alencar Letter, # 2 Exhibit B - Bui Letter, # 3 Exhibit C - NEUROPSYCHOLOGICAL EVALUATION, # 4 Exhibit D - Hearing Notices, # 5 Exhibit E - BIA Briefing Schedule) (Marquez, Lucas) (Entered: 09/11/2026)

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Sep 11, 2026

Civil Cover Sheet.. by Agapito Acosta (Marquez, Lucas) (Entered: 09/11/2026)

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Sep 14, 2026

This attorney case opening filing has been checked for quality control. See the attachment for corrections that were made, if any. (CV) (Entered: 09/14/2026)

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Sep 14, 2026

NOTICE of Appearance by Anna Karen Jessurun on behalf of Agapito Acosta (aty to be noticed) (Jessurun, Anna) (Entered: 09/14/2026)

Sep 14, 2026

Your proposed summons was not issued for one of the following reasons: No summons provided, please submit summons. The event can be found under the event Other Documents - Proposed Summons/Civil Cover Sheet., Please correct and resubmit using Proposed Summons/Civil Cover Sheet. (CV)

Sep 14, 2026

Order to Show Cause (463)

Sep 14, 2026

Case Assigned to Judge Hector Gonzalez. Please download and review the Individual Practices of the assigned Judges, located on our website. Attorneys are responsible for providing courtesy copies to judges where their Individual Practices require such. (CV)

Sep 14, 2026

ORDER TO SHOW CAUSE and Electronic Service upon the US Attorney's Office re ECF No. 1 Petition for Writ of Habeas Corpus, filed by Agapito Acosta. The United States Attorney, as attorney for Respondents, is directed to show cause by 4:00 p.m. on September 17, 2026, in writing, why the petition should not be granted, and why Respondents should not be ordered to immediately release Petitioner from detention, in light of the Second Circuit's holding in Barbosa da Cunha v. Freden, 175 F.4th 61, 96 (2d Cir. 2026). The government shall also address whether Petitioner is being detained pursuant to 8 U.S.C. § 1225 or § 1226.If the government's position is that Petitioner was and continues to be properly detained under § 1226, it shall show cause as to why Petitioner is not entitled to a burden-shifted hearing given this Court's decision in Mendoza Raymundo v. Almodovar, No. 26-cv-02304, 2026 WL 1480372 (E.D.N.Y. May 27, 2026), and the Second Circuit's decisions in Black v. Decker, 103 F.4th 133 (2d Cir. 2024), and Velasco Lopez v. Decker, 978 F.3d 842 (2d Cir. 2020).Alternatively, the government may waive its rights to a response and submit a letter or otherwise consent to Petitioner's release without prejudice to its rights on appeal.If the government chooses to file a response, counsel for Respondents must serve a copy of the response on Petitioner, with proof of such service to the Clerk of this Court. As part of its response, the government is directed to file, under seal if necessary, any records, documents, or other information in Petitioner's immigration file, as well as any underlying records relied upon in its submission not yet filed by Petitioner, and records indicating whether any property was seized from Petitioner at the time of arrest.If the government files a response, Petitioner is directed to file his reply, if any, by 4:00 p.m. on September 22, 2026, with proof of service.Service of a copy of this order, together with a copy of the petition, will be made by the Clerk of this Court through the electronic case filing system to the United States Attorney.To preserve the Court's jurisdiction pending a ruling on the petition, Petitioner shall not be removed from the United States unless and until the Court orders otherwise. See, e.g., Kuprashvili v. Flanagan, No. 25-cv-5268, 2025 WL 2382059 (S.D.N.Y. June 30, 2025) (collecting cases staying removal to maintain the status quo). Additionally, in light of Petitioner's interest in participating in further proceedings before this Court and maintaining adequate access to legal counsel throughout these proceedings, Petitioner shall not be transferred to a facility outside of this District or the Southern District of New York. See Samb v. Joyce, No. 25-cv-6373, ECF No. 3 (S.D.N.Y. Aug. 4, 2025). Ordered by Judge Hector Gonzalez on 9/14/2026. (GEM)

Sep 14, 2026

Quality Control Check - Summons

Sep 14, 2026

Case Assigned/Reassigned

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Sep 16, 2026

Certificate of Service

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Sep 17, 2026

Notice of Appearance

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Sep 17, 2026

Response to Order to Show Cause

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Sep 22, 2026

Reply in Support

Sep 28, 2026

Order Dismissing Case

Sep 28, 2026

ORDER: Petitioner Agapito Acosta, who has been detained for over 15 months and counting, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2241, arguing that his detention by U.S. Immigration and Customs Enforcement without adequate procedural protections violates the Due Process Clause of the Fifth Amendment. See generally ECF No. 1 ("Petition").Petitioner filed his Petition on September 11, 2026, and a few days later, the Court issued an Order to Show cause directing the government to show cause as to why it "should not be ordered to immediately release Petitioner from detention, in light of the Second Circuit's holding in Barbosa da Cunha v. Freden, 175 F.4th 61, 96 (2d Cir. 2026)"; "address whether Petitioner is being detained pursuant to 8 U.S.C. § 1225 or § 1226"; and "show cause as to why Petitioner is not entitled to a burden-shifted hearing given this Court's decision in Mendoza Raymundo v. Almodovar, No. 26-cv-02304, 2026 WL 1480372 (E.D.N.Y. May 27, 2026), and the Second Circuit's decisions in Black v. Decker, 103 F.4th 133 (2d Cir. 2024), and Velasco Lopez v. Decker, 978 F.3d 842 (2d Cir. 2020)." Sept. 14, 2026, Text Order. The government filed its response three days later, see ECF No. 7 ("Response"), in which it set forth its position that the instant Petition "should be dismissed as abusive because the Petition in this action repeats previously asserted claims as those in the [] [p]etition" that was denied by Judge Vyskocil in Acosta v. Arteta, No. 25-cv-9916, 2026 WL 263470 (S.D.N.Y. Feb. 2, 2026) (the "SDNY Proceeding"), see ECF No. 7 at 4-6. On September 22, 2026, Petitioner filed his reply, in which he argues that: (1) the instant Petition involves an "over 15-month prolonged detention claim" that was not brought in the SDNY Proceeding; and (2) even if the instant Petition "raises a successive claim, Petitioner has cause for bringing the Petition based on new facts, and the dismissal of the [instant] Petition would be a fundamental miscarriage of justice. See generally ECF No. 8 ("Reply"). The Court agrees with Petitioner. As a preliminary matter, the abuse of the writ doctrine does not apply here, as the instant Petition presents a new claim that was not brought in the SDNY Proceeding. Indeed, "in the SDNY [P]roceeding, the government represented and the Honorable Mary Kay Vyskocil found that [Petitioner] was detained under [8 U.S.C. § 1225(b)] [and] when Judge Vyskocil denied the SDNY Petition, [Petitioner] had been detained for over seven months." ECF No. 8 at 7; see also Acosta, 2026 WL 263470, at *4. Judge Vyskocil also held, in the alternative, that even if Petitioner were detained under § 1226(c), his then approximately seven-month detention was not unreasonably prolonged under Black because much of the delay was of his own doing. see Acosta, 2026 WL 263470, at *7-8. (Petitioner timely filed his appeal of Judge Vyskocil's alternative holding in early April). Here, however, Petitioner "challenges his over 15-month detention as unreasonably prolonged under [8 U.S.C. § 1226(c)], after Barbosa da Cunha v. Freden, 175 F.4th 61 (2d Cir. 2026), squarely established that DHS could not detain [petitioners like] Mr. Acosta under § 1225(b) [and]... this claim was not and could not have been brought in the SDNY [Proceeding] for the simple fact that, when Mr. Acosta filed that petition, he had only been detained for nearly six months." Id. Those are different statutory questions. Still, even if the Court were to set the statutory questions aside, the instant Petition presents a different question becuase "the question now presented is whether [Petitioner]'s current § 1226(c) detention--approaching 15 months--without an individualized hearing violates the Constitution [and] [t]hat is a different question than the one presented in his first petition." Sankara v. Barr, No. 19-cv-174, 2019 WL 1922069, at *5 (W.D.N.Y. Apr. 30, 2019); see also Graham v. Decker, No. 20-cv-3168, 2020 WL 3317728, at *4 (S.D.N.Y. June 18, 2020) (declining to apply abuse of the writ doctrine, "although each [petition] was aimed at securing [petitioner's] release, they implicated different facts and... [petitioner's] due process claim was necessarily less strong at that [earlier] point than it was later, when he filed this action; the nature of such a claim is that it gains strength the longer the non-citizen remains in custody without a bond hearing"). Furthermore, Petitioner's appeal from Judge Vyskocil's decision does not trigger the doctrine because he is not asking the Court to set that decision aside; he is asking the Court to find "that, notwithstanding the prior denial of his prolonged detention claim at over seven months of detention, his current mandatory detention of over 15-months--including eight additional months since the SDNY Petition denial--is now unreasonably prolonged." ECF No. 8 at 8-9 (emphasis in original). That distinction matters. The longer a petitioner's detention, the more it may infringe on his rights. See Zadvydas v. Davis, 533 U.S. 678, 701 (2001) (noting that the longer a petitioner is detained, the reasonable time before which they must be removed before the government infringes their constitutional rights gets shorter).Even if the Court had found the instant Petition to be successive of the petition of that in the SDNY Proceeding, "the failure to raise claims in a prior petition is not a basis for dismissal if the petitioner can show that a fundamental miscarriage of justice would result from a failure to entertain the claim[s], and [t]his is such a case." Dima v. Genalo, No. 26-cv-5258, 2026 WL 2718520, at *4 (E.D.N.Y. Sept. 15, 2026). Habeas review based on allegations of due process violations "is not limited to evaluating the lawfulness of detention when it is first imposed... but is also available to challenge whether, at some point, an ongoing detention has become unlawful." Velasco Lopez v. Decker, 978 F.3d 842, 850 (2d Cir. 2020). In Velasco Lopez, the court held that under Mathews v. Eldridge, 424 U.S. 319 (1976), the petitioner "was denied due process because he was incarcerated for fifteen months (with no end in sight) while the Government at no point justified his incarceration." 978 F.3d at 846. That logic applies with full force here, where Petitioner has been detained for more than 15 months. See id. at 851-55. And because "the longer detention continues, the greater the need for the Government to justify its continuation," id. at 855, the government must justify its continued detention of Petitioner by providing him with an individualized bond hearing before an Immigration Judge ("IJ"), where the IJ will meaningfully consider alternatives to detention and Petitioner's ability to pay if a monetary bond is set, and where the government will have the burden of showing by clear and convincing evidence that Petitioner is a danger to the community or a flight risk. see Mendoza Raymundo, 2026 WL 1480372 at *3-4 (applying the Mathews test to petitioner's nine-month detention and concluding that "[a]lthough nine months, admittedly, is less than fifteen months, it certainly exceeds six months, and the Court finds that it qualifies as a prolonged detention warranting a burden-shifted hearing"); see also Black, 103 F.4th at 159 (holding that petitioner's seven-month detention under 8 U.S.C. § 1226(c) required a burden-shifted hearing); J.C.G. v. Genalo, No. 24-cv-8755, 2025 WL 88831, at *10 (S.D.N.Y. Jan. 14, 2025) (holding that petitioner's nine-month detention under § 1226(a) required a burden-shifted hearing and collecting cases); Catalan v. Mullin, No. 26-cv-1680, 2026 WL 1398927, at *2 (E.D.N.Y. May 19, 2026) (granting a burden-shifted hearing under § 1226(a) where petitioner was detained for more than 10 months).For these reasons stated above, Petitioners prolonged detention violates the Due Process Clause of the Fifth Amendment, and his Petition for a writ of habeas corpus is GRANTED IN PART to the extent Petitioner requests an individualized bond hearing at which the government must bear the burden of proving by clear and convincing evidence that continued detention remains justified. See ECF No. 1 . By no later than October 6, 2026, the government shall provide Petitioner with an individualized bond hearing before an IJ, where the IJ will meaningfully consider alternatives to detention and Petitioners ability to pay if a monetary bond is set, and where the government will have the burden of showing by clear and convincing evidence that Petitioner is a danger to the community or a flight risk. By 4:00 p.m. the next day, October 7, 2026, the government shall file a letter on the docket certifying its compliance with this Order. The Clerk of Court is respectfully directed to enter judgment consistent with the Order and close the case. Ordered by Judge Hector Gonzalez on 9/28/2026. (CBF)

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Sep 29, 2026

Judgment - Clerk

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Sep 30, 2026

Extension of Time to File Document

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Sep 30, 2026

Response to Motion

Sep 30, 2026

Order on Motion for Extension of Time to File