District of Massachusetts • 1:26-cv-14772

#1

Oct 21, 2026

Emergency PETITION for Writ of Habeas Corpus (2241) Filing fee: $ 5, receipt number AMADC-12128319 Fee status: Filing Fee paid., filed by Joaquim Manuel Da Cunha Silva. (Attachments: # 1 Category Form, # 2 Civil Cover Sheet)(Lagana, Stephen) (Entered: 10/21/2026)

#2

Oct 21, 2026

ELECTRONIC NOTICE of Case Assignment. District Judge Leo T. Sorokin 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 M. Page Kelley. (JAM) (Entered: 10/21/2026)

#3

Oct 21, 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). (FGD) (Entered: 10/21/2026)

#4

Oct 21, 2026

District Judge Leo T. Sorokin: ORDER entered. ORDER CONCERNING SERVICE OF PETITION AND STAY OF TRANSFER OR REMOVAL. (FGD) (Entered: 10/21/2026)

#5

Oct 21, 2026

Copy re 1 Petition for Writ of Habeas Corpus (2241), 4 Service Order - 2241 Petition emailed to Duty AUSA and mailed to Respondents and USAO on 10/21/2026. (FGD) (Entered: 10/21/2026)

Oct 21, 2026

Notice of Case Assignment

Oct 21, 2026

Copy Mailed

#6

Oct 23, 2026

Notice of Appearance

#7

Oct 26, 2026

RESPONSE/ANSWER to 1 Petition for Writ of Habeas Corpus (2241), by Antone Moniz, Markwayne Mullin, David Venturella, David Wesling. (Sauter, Mark) (Entered: 10/26/2026)

#8

Oct 27, 2026

District Judge Leo T. Sorokin: ELECTRONIC ORDER entered. Joaquim Manuel Da Cunha Silva, a citizen of Portugal, filed a petition for a writ of habeas corpus challenging his ongoing immigration detention. Doc. No. 1. Petitioner entered the United States in 2005 through the Visa Waiver Program (“VWP”). Id. ¶ 3; see also 8 U.S.C. § 1187 (establishing VWP). He lived in New Jersey for over twenty years. Doc. No. 1 ¶ 4. His prolonged stay violated the terms of his VWP entry and, in 2017, he was referred to the Newark Immigration Court as an alleged VWP violator. Id. ¶ 6. Asylum-only proceedings commenced in 2017, but apparently no hearing was ever scheduled in those proceedings. Id. ¶ 7. Of his own volition, petitioner departed the United States in August 2025 and returned to Portugal. Id. ¶ 5. On September 22, 2026, petitioner reentered the United States through a land crossing in Burlington, Vermont. Id. ¶ 10. Sometime shortly thereafter, he was encountered and detained by ICE. Id. ¶ 11. On October 21, 2026, petitioner filed this habeas petition seeking his immediate release or an individualized bond hearing. Id. ¶¶ 20–21.Respondents contend that petitioner’s detention is authorized by 8 U.S.C. § 1187(c)(2)(E), and that immigration judges lack jurisdiction to conduct a bond hearing for a person detained under that statutory authority. Doc. No. 7 (citing Matter of A-W-, 26 I. & N. Dec. 45 (BIA 2009)). Per the statute’s plain meaning, however, § 1187(c)(2)(E) does not provide a basis for detention. 8 U.S.C. § 1187(c)(2)(E) (identifying “repatriation” of nationals with final orders of removal as one “requirement” for countries to participate in VWP and providing that “[n]othing in this subparagraph creates... any right for any alien with respect to removal or release”); see also, e.g., Quispe v. Chestnut, No. 1:25-cv-02002-CSK, 2026 WL 654577, at *2-3 (E.D. Cal. Mar. 9, 2026) (noting that “most federal courts that have directly addressed whether a noncitizen who has violated the Visa Waiver Program can be detained pursuant to § 1187(c)(2)(E) have held that § 1187(c)(2)(E) is not a valid basis for detention” and collecting cases). As another Session of this Court aptly described, the BIA in Matter of A-W- “offers no explanation... as to... where in 8 U.S.C. § 1187(c)(2)(E) the BIA finds the Secretary of Homeland Security’s authority to detain” noncitizens. Neziri v. Johnson, 187 F. Supp. 3d 211, 213–14 (D. Mass. 2016); cf. Loper Bright Enters. v. Raimondo, 603 U.S. 369, 394 (2024) (“[C]ourts must exercise independent judgment in determining the meaning of statutory provisions.”). Because the VWP statute “does not have its own detention provision,” the detention of a noncitizen who violated the terms of their VWP admission “must instead arise from one of the other statutory provisions expressly covering [noncitizens] subject to detention during their removal proceedings.” Molina v. Soto, No. 25-cv-16880-EP, 2025 WL 3281820, at *3 (D.N.J. Nov. 25, 2025) (citation modified). Section 1187(c)(2)(E) is the sole statutory authority ICE relies on to justify petitioner’s present detention. Doc. No. 7 at 3. But, as just explained, that statute does not provide authorization for detention. Respondents allude to discretionary detention authorized by § 1226(a). Id. at 5. Although § 1226(a) might apply to noncitizens in petitioner’s position, see, e.g., Quispe, 2026 WL 654577, at *3, respondents in this case do not affirmatively take the position that petitioner is detained pursuant to § 1226(a), nor does the record before the Court contain any warrant for petitioner’s arrest and detention as that statute requires. 8 U.S.C. § 1226(a). ICE also has not sought to justify its detention of petitioner under any mandatory-detention regime, such as 8 U.S.C. § 1231 (governing detention for noncitizens with final orders of removal), 8 U.S.C. § 1226(c) (Laken Riley Act), or 8 U.S.C. § 1225(b) (providing for mandatory detention for certain “applicants for admission” who are “seeking admission”). See Doc. No. 7 at 3-5 & n.1 (explaining that § 1225 might theoretically apply to petitioner but clarifying that “ICE... has not asserted... that it has determined that Section 1225 authorizes Petitioner’s detention”). In brief, the only statute respondents rely on to justify petitioner’s detention does not create the detention authority respondents claim. Whether other bases for detention are theoretically available is immaterial when respondents have offered neither evidence nor argument to justify petitioner’s detention. In the absence of an identified lawful basis for petitioner’s detention, he must be released.For the foregoing reasons, the petition (Doc. No. 1) is ALLOWED. Respondents SHALL IMMEDIATELY RELEASE petitioner, i.e., by 8:00 p.m. today, October 27, 2026. Respondents shall file a status report tomorrow, October 28, 2026, addressing their compliance with this Order.(FGD) (Entered: 10/27/2026)

#9

Oct 27, 2026

District Judge Leo T. Sorokin: ORDER entered. JUDGMENT. (FGD) (Entered: 10/27/2026)

Oct 27, 2026

Order AND ~Util - Set Deadlines

#10

Oct 28, 2026

Status Report