District of Massachusetts • 1:26-cv-12059

#1

May 06, 2026

Emergency PETITION for Writ of Habeas Corpus (2241) DETAINED AT BOSTON FIELD OFFICE Filing fee: $ 5, receipt number AMADC-11724751 Fee status: Filing Fee paid., filed by Francismar Gamitto de Souza. (Attachments: # 1 Category Form, # 2 Civil Cover Sheet)(Lagana, Stephen) (Entered: 05/06/2026)

#2

May 06, 2026

ELECTRONIC NOTICE of Case Assignment. Judge Allison D. Burroughs 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. (LBO) (Entered: 05/06/2026)

#3

May 06, 2026

Service Order-2241 Petition

#4

May 06, 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). (CAM) (Entered: 05/06/2026)

#5

May 06, 2026

Copy re 1 Petition for Writ of Habeas Corpus (2241), 3 Service Order - 2241 Petition mailed to Duty AUSA O'Connor and mailed to respondents on 5/6/2026. (CAM) (Entered: 05/06/2026)

May 06, 2026

Copy Mailed

May 06, 2026

Notice of Case Assignment

#6

May 14, 2026

NOTICE of Appearance by Mark Sauter on behalf of Todd Lyons, Markwayne Mullin, David Wesling (Sauter, Mark) (Entered: 05/14/2026)

#7

May 14, 2026

RESPONSE/ANSWER to 1 Petition for Writ of Habeas Corpus (2241), Abbreviated by Todd Lyons, Markwayne Mullin, David Wesling. (Sauter, Mark) (Entered: 05/14/2026)

#8

May 15, 2026

Judge Allison D. Burroughs: ELECTRONIC ORDER entered. Before the Court is Petitioner Francismar Gamitto de Souza’s petition for writ of habeas corpus. [ECF No. 1 ]. Respondents acknowledge that “the legal issues presented in this Petition are similar to those recently addressed by this Court in Morales v. Plymouth County Correctional Facility.” [ECF No. 7 at 1]. In that case, this Court joined other sessions of this Court, and other courts across the country, in holding that the arrest and detention of noncitizens within the United States is governed by 8 U.S.C. § 1226(a). No. 25-cv-12602, ECF No. 15 (D. Mass. Sep. 30, 2025). Respondents further acknowledge that “[s]hould the Court follow its reasoning in Morales, it would reach the same result here.” [ECF No. 7 at 1]. On the facts before it, the Court does not find reason to deviate from its prior analysis. Petitioner is subject to 8 U.S.C. § 1226’s discretionary detention framework and, accordingly, entitled to a bond hearing. He has not received such a hearing, so his detention is unlawful. Petitioner’s petition, [ECF No. 1 ], is GRANTED. Respondents are ORDERED to provide Petitioner with a bond hearing under 8 U.S.C. § 1226(a) within 10 days of this order. Respondents are ENJOINED from denying Petitioner bond on the basis that he is detained pursuant to 8 U.S.C. § 1225(b)(2). Respondents are ORDERED to file a status report within 14 days of this order stating whether Petitioner has been granted bond, and, if his request for bond was denied, the reasons for that denial.The clerk is directed to enter final judgment in favor of Petitioner. Petitioner, whose petition requested an award of fees under the Equal Access to Justice Act, 28 U.S.C. § 2412, [ECF No. 1 at 9], is reminded that, under the EAJA, any application for fees is due within 30 days from final judgment within the meaning of 28 U.S.C. § 2412(d)(2)(G), 28 U.S.C. § 2412(d)(1)(B).(CAM) (Entered: 05/15/2026)

#9

May 15, 2026

Judge Allison D. Burroughs: ORDER entered. JUDGMENT in favor of Petitioner, Francismar Gamitto de Souza. (CAM) (Entered: 05/15/2026)

May 15, 2026

Order

#10

May 28, 2026

Status Report

#11

Jul 07, 2026

Exhibit 3 - Petitioner's Bond Evidence

#12

Jul 15, 2026

Notice of Manual Filing

#13

Jul 21, 2026

Opposition to Motion

#14

Jul 27, 2026

Judge Allison D. Burroughs: ELECTRONIC ORDER entered. On May 15, 2026, the Court ordered Respondents to provide Petitioner with a bond hearing under 8 U.S.C. § 1226(a). [ECF No. 8]. On May 21, 2026, Immigration Judge Luciana Dubuc denied Petitioner release on bond, finding that he was a flight risk. [ECF No. 10 -1]. Petitioner now moves to enforce the Court’s judgment, arguing that the immigration judge’s decision violated constitutional due process. [ECF No. 11 ].This Court has jurisdiction to review whether the bond hearing it ordered comported with constitutionally mandated burdens of proof. See, e.g., Massingue v. Streeter, No. 19-cv-30159, 2020 WL 1866255, at *3 (D. Mass. Apr. 14, 2020) (“[A] district court retains jurisdiction to review compliance with its earlier order conditionally granting habeas relief.” (quoting Diaz Ortiz v. Smith, 384 F. Supp. 3d 140, 142 (D. Mass. 2019))); Hernandez-Lara v. Lyons, 10 F.4th 19, 33 (1st Cir. 2021) (noting that 8 U.S.C. § 1226(e) does not preclude challenges to “the extent of the Government’s detention authority under the ‘statutory framework’ as a whole” (quoting Jennings v. Rodriguez, 583 U.S. 281, 295 (2018))). Specifically, the First Circuit has held that the Fifth Amendment’s Due Process Clause requires that the government prove, by a preponderance of the evidence, that a noncitizen is a flight risk before a noncitizen may be denied release on bond on that basis. Hernandez-Lara, 10 F.4th at 41. To show that an immigration judge failed to apply this standard, a noncitizen must either “point to the language of the immigration judge’s opinion or demonstrate that ‘the evidence itself could not—as a matter of law—have supported’ the immigration judge’s decision to deny bond.” Diaz Ortiz, 384 F. Supp. 3d at 143 (quoting Hechavarria v. Whitaker, 358 F. Supp. 3d 227, 240 (W.D.N.Y. 2019)). The Court’s review in this context is extraordinarily limited: Habeas relief is appropriate only if the immigration judge’s “exercise of discretion in denying bond was so arbitrary that it would offend fundamental tenets of due process.” Id. at 144 (quoting Pratt v. Doll, No. 17-cv-01020, 2019 WL 722578, at *4 (M.D. Pa. Feb. 20, 2019)).Here, based on the Court’s review of the evidence before the immigration judge and the unofficial audio recording of the hearing, see [ECF No. 12 ], the immigration judge’s decision failed to satisfy the minimum requirements of due process. At the hearing, the immigration judge denied bond based on the fact that Petitioner had allegedly presented false documents when he sought admission to the United States in 2001, approximately twenty-five years ago, and that Petitioner’s past conviction, from almost ten years ago, indicates that he has a disregard for the law. [ECF No. 12 (immigration judge finding that Petitioner “does have a disregard for immigration law that he came and tried to enter it illegally”)]. Aside from the general suggestion that Petitioner has a disregard for the law, the immigration judge did not explain why Petitioner’s ten-year-old conviction suggested that he was a flight risk. See [ECF No. 12 ]; López-Gómez v. Bondi, 154 F.4th 1, 4 (1st Cir. 2025) (“the logical underpinnings” of an immigration judge’s decisions, at least, must be “clear from the record” (quoting Rivera-Medrano v. Garland, 47 F.4th 29, 39 (1st Cir. 2022))).Additionally, in coming to her conclusion, the immigration judge failed to grapple with, or acknowledge in any way, the body of evidence relevant to the bond determination presented by Petitioner. See [ECF No. 12 ]. While immigration judges “‘need not discuss ad nauseam every piece of evidence,’ they ‘may not simply ignore substantial testimonial and documentary proof.’” Garcia v. Hyde, No. 25-cv-585, 2025 WL 3466312, at *1 (D.R.I. Dec. 3, 2025) (quoting Barnica-Lopez v. Garland, 59 F.4th 520, 530 (1st Cir. 2023)). Here, the immigration judge failed to address, in any substantive manner, the fact that over twenty-five years have passed since the uncorroborated false documents claim, which the immigration judge misconstrued as a “fraud charge,” and ten years have passed since Petitioner’s last encounter with law enforcement. [ECF No. 12 ]; see Mijango Velasco v. Wesling, No. 26-cv-11355 at 6 (D. Mass. Apr. 24, 2026) (stating that the petitioner’s conduct during “intervening years must be accounted for in any effort to meaningfully assess the risks he presently poses”). She also failed to meaningfully engage with any other evidence presented by Petitioner, such as his tax records and business and family references documenting his extensive ties to the community. [Id.]. Further, the immigration judge’s statement that “no bond amount... [would] ameliorate [Petitioner’s] risk,” [ECF No. 12 ], does not reflect meaningful consideration of alternatives to detention, see Costa v. McDonald, No. 25-cv-13469, 2026 WL 371198, at *3 (D. Mass. Feb. 10, 2026) (ordering renewed bond hearing because “[t]he Immigration Judge's failure to consider whether alternatives to detention or other less restrictive means could address the risks of danger posed by Petitioner to the community was constitutionally deficient”).After careful review, the Court concludes that the evidence in the record before the immigration judge could not, as a matter of law, have supported the immigration judge’s decision, which appears so arbitrary as to violate due process. Accordingly, Petitioner’s motion to enforce, [ECF No. 11 ], is GRANTED. Respondents are ORDERED to release Petitioner immediately, no later than 3:00 p.m. tomorrow, July 28, 2026. This order is without prejudice to Respondents requiring Petitioner to comply with reasonable conditions of supervision upon release, provided that such conditions are imposed, and written notice to Petitioner is provided, within seven days of this order. Respondents are ORDERED to file a status report within seven days of this order confirming their compliance with this order. (MBM) (Entered: 07/27/2026)

Jul 27, 2026

Order on Motion to Enforce Judgment

#15

Aug 03, 2026

Status Report