Western District of New York • 1:26-cv-02173

#1

Sep 28, 2026

PETITION for Writ of Habeas Corpus, filed by Nursultan Junussov. (Attachments: # 1 Civil Cover Sheet, # 2 Exhibit Motion for Appointment of Counsel, # 3 Exhibit Envelope)(CT) Modified on 9/29/2026 (LB). (Entered: 09/28/2026)

#2

Sep 28, 2026

MOTION for Leave to Proceed in forma pauperis by Nursultan Junussov.(CT) (Entered: 09/28/2026)

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Sep 28, 2026

TEXT ORDER re 1 Petition for Writ of Habeas Corpus filed by Nursultan Junussov.So that the petitioner can fully participate in these proceedings, 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). If the petitioner was in the Western District of New York at the time the petition was filed but was subsequently transferred prior to this order, the respondents shall return the petitioner to this District as soon as practicable. Travel to facilitate the petitioners voluntary departure does not violate this order.SO ORDERED. Issued by Hon. Lawrence J. Vilardo on 9/28/2026. (DDC)This was mailed to: the petitioner. (Entered: 09/28/2026)

Sep 28, 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. 636(c) 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. (CT)

#4

Sep 29, 2026

TEXT ORDER re 1 Petition for Writ of Habeas Corpus filed by Nursultan Junussov and denying 2 MOTION for Leave to Proceed in forma pauperis filed by Nursultan Junussov.In Barbosa da Cunha v. Freden, 175 F.4th 61 (2d Cir. 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. 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. And in Mata Velasquez v. Kurzdorfer, 794 F. Supp. 3d 128 (W.D.N.Y. 2025), this Court concluded "that both common sense and the words of the statute require parole revocation to be analyzed on a case-by-case basis and that a decision to revoke parole must attend to the reasons an individual [noncitizen] received parole." Id. at 146 (citation and internal quotation marks omitted).Moreover, in Ceesay v. Kurzdorfer, 781 F. Supp. 3d 137 (W.D.N.Y. 2025), this Court addressed a petition concerning the re-detention of a noncitizen who was subject to a final order of removal and had been released from ICE custody on an order of supervision. Without prior notice, the petitioner was arrested and detained when he appeared for a regularly scheduled check-in with ICE. Id. at 147. Because he was not given an opportunity to be heard nor was the person who revoked his release authorized to do so, the revocation of his order of supervision did not comply with the relevant regulations. Id. at 159-66. Based on the facts presented in that case, the Court ruled for the petitioner, concluding that "because ICE did not follow its own regulations in deciding to re-detain [the petitioner], his due process rights were violated and he [wa]s entitled to release." Id. at 166.It appears that the holdings of Barbosa da Cunha, Alvarez Ortiz, Cabrera Martinez, Mata Velasquez, and/or Ceesay may apply to the petitioner in this case. Accordingly, the respondents are hereby ORDERED TO SHOW CAUSE on or before 10/6/2026, 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. Additionally, in Last Name Unknown v. Ball, 2026 WL 2096666, at *4 (W.D.N.Y. July 21, 2026), this Court held that a petitioner whose detention was governed by 8 U.S.C. § 1226(a) was entitled to immediate release when a warrant had not been obtained for his arrest. And in Loaeza v. Bausch, 2026 WL 2150155 (W.D.N.Y. July 27, 2026), Judge Vacca explained that "[w]ithout a valid [Notice to Appear] in place, removal proceedings are not pending, and [the r]espondents have no authority to make an arrest or effectuate detention." Id. at *1-2. Accordingly, to the extent an unlawful arrest is alleged in the petition, the respondents also shall SHOW CAUSE on or before 10/6/2026 why the petitioner is not entitled to immediate release under Last Name Unknown and/or Loaeza, including providing a copy of any warrant or Notice to Appear that the respondents say was issued. The petitioner also has moved to proceed in forma pauperis ("IFP") (that is, as a person who should have the prepayment of the ordinary filing fee waived because he cannot afford it). See Docket Item 2 . 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"). The Court has carefully reviewed the petitioner's motion to proceed IFP, Docket Item 2 . Based on that review, the Court cannot find that the petitioner is unable to pay the filing fee. Therefore, the petitioner's motion to proceed IFP, id., is DENIED, and he must pay the $5.00 filing fee. Nonetheless, in light of the serious issues raised in the petition, the Court deems it appropriate to proceed with this show cause order. Any decision on the petition based on the respondents' response, however, is conditioned on the petitioner paying the $5.00 filing fee.SO ORDERED. Issued by Hon. Lawrence J. Vilardo on 9/28/2026. (DDC)This was mailed to: the petitioner. (Entered: 09/29/2026)

Sep 29, 2026

E-Filing Notification regarding 1 PETITION : Motion for IFP initially attached to the Petition docket entry. This document has been removed and re-docketed at #2 MOTION for Leave to Proceed in forma pauperis. (LB)

Sep 29, 2026

Remark: Clerk mailed to petitioner the Prisoner Pro Se Packet, consisting of Privacy Notice, Consent to Proceed Before a Magistrate Judge, and Civil Case Timeline. (CT)