Western District of New York • 1:26-cv-01254

#1

Jun 17, 2026

PETITION for Writ of Habeas Corpus ( Filing fee $ 5 receipt number ANYWDC-5869284.), filed by Emanuel Antonio Gavarrete Hernandez. (Attachments: # 1 Civil Cover Sheet, # 2 Declaration Affirmation of Edgar Loy Fankbonner, Esq.)(Fankbonner, Edgar) (Entered: 06/17/2026)

#2

Jun 17, 2026

MOTION for Order to Show Cause by Emanuel Antonio Gavarrete Hernandez.(Fankbonner, Edgar) (Entered: 06/17/2026)

#3

Jun 18, 2026

TEXT ORDER re 1 Petition for Writ of Habeas Corpus filed by Emanuel A. Gavarrete Hernandez So that the petitioner can fully participate in these proceedings and maintain adequate access to legal counsel, 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). The Court will issue a further order addressing the merits of the petition in short order. SO ORDERED. Issued by Hon. Lawrence J. Vilardo on 6/18/2026. (ZHM) (Entered: 06/18/2026)

#4

Jun 18, 2026

TEXT ORDER re 1 Petition for Writ of Habeas Corpus filed by Emanuel A. Gavarrete Hernandez In Barbaso 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. And 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. It appears that the holdings of da Cunha, Alvarez Ortiz and/or Cabrera Martinez may apply to the petitioner in this case. Accordingly, the respondents are hereby ORDERED TO SHOW CAUSE on or before 6/25/2026, 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. In that response, the government also shall address the petitioner's contention, Docket Item 1 ¶ 38, that immediate release is the appropriate remedy rather than a bond hearing. SO ORDERED. Issued by Hon. Lawrence J. Vilardo on 6/18/2026. (ZHM) (Entered: 06/18/2026)

Jun 18, 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. 636c 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. (MMG)

Jun 18, 2026

Case assigned to Hon. Lawrence J. Vilardo. Notification to chambers of online civil opening. (MMG)

#5

Jun 24, 2026

NOTICE of Appearance of Government Attorney: Adam A. Khalil, appearing on behalf of James Bausch, Todd Blanche, Markwayne Mullin, David Venturella. CLERK TO FOLLOW UP. (Khalil, Adam) (Entered: 06/24/2026)

#6

Jun 24, 2026

REPLY/RESPONSE to re 4 Text Order,,,,,,, filed by James Bausch, Todd Blanche, Markwayne Mullin, David Venturella. (Khalil, Adam) (Entered: 06/24/2026)

#7

Jun 25, 2026

TEXT ORDER re 1 Petition for Writ of Habeas Corpus filed by Emanuel A. Gavarrete Hernandez On 6/18/2026, this Court ordered the respondents to show cause why, in light of the Second Circuit's decision in Barbosa da Cunha v. Freden, 175 F.4th 61 (2d Cir. 2026), and this Court's decision in Alvarez Ortiz v. Freden, 808 F. Supp. 3d 579 (W.D.N.Y. 2025), "(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." Docket Item 4 . In response, the "[r]espondents acknowledge" that the Second Circuit recently held that "'[s]ection 1225(b)(2)(A) does not apply to... noncitizens,'" such as the petitioner, "'who are present in the United States after entering the country without inspection and admission, and who were not apprehended while entering the country or shortly thereafter,[']" and that "[s]ection 1226(a) [instead] applies" to such noncitizens. Docket Item 6 at 1-2 (quoting da Cunha, 175 F.4th at 69). The respondents have reserved all rights, and this Court appreciates their efforts "to conserve judicial and party resources" by not rehashing issues that this Court and the Second Circuit already have decided. See id. at 1. Turning to the question of relief, the petitioner argues that immediate release—not simply a hearing—is the appropriate remedy. Docket Item 1 ¶ 38. In support of that request, he points to "hundreds of cases nationwide" where the respondents "have outright refused, been unable, or otherwise failed to hold a timely bond hearing after being ordered to do so," id. ¶ 33, as well as other cases where immigration judges "have failed to conduct a neutral, individualized bond hearing or to place the burden of proof as ordered by the habeas court," id. ¶ 36. The petitioner's argument certainly has some merit. In the many bond hearings recently conducted in accordance with this Court's orders, however, there have been very few in which the immigration judge did not follow what this Court ordered. This Court therefore has no reason—at this stage—to assume that the petitioner will not receive a fair bond hearing. And in the few cases where immigration judges have not followed this Court's orders, noncitizens have been released. So if the petitioner does not receive the bond hearing to which he is entitled, this Court will not hesitate to enforce its order by releasing him. For their part, the respondents argue that the burden of proof at a bond hearing under section 1226(a) should be on the petitioner, however, they make no effort to distinguish this case from Alvarez Ortiz. See Docket Item 6 at 2. Accordingly, for the reasons explained in Alvarez Ortiz and da Cunha, this Court GRANTS the petition and ORDERS the respondents to provide the petitioner with an individualized bond hearing before an immigration judge within seven calendar days of the date of this order. At that hearing, the government shall bear the burden to demonstrate, by clear and convincing evidence, that the petitioner is a danger to the community or a flight risk. At that bond hearing, the immigration judge must consider non-bond alternatives to detention or, if setting a bond, the petitioner's ability to pay. If the respondents fail to provide such a hearing within seven calendar days, they shall immediately release the petitioner. On or before 7/6/2026, the respondents shall file a status report confirming that the petitioner has either been provided a bond hearing in compliance with this order or released from custody. SO ORDERED. Issued by Hon. Lawrence J. Vilardo on 6/25/2026.(ZHM) (Entered: 06/25/2026)

#8

Jul 06, 2026

Letter filed by James Bausch, Todd Blanche, Markwayne Mullin, David Venturella re bond hearing. (Khalil, Adam) (Entered: 07/06/2026)

#9

Jul 08, 2026

TEXT ORDER re 8 Letter filed by Markwayne Mullin, Todd Blanche, David Venturella, James Bausch The respondents have filed a letter, Docket Item 8, indicating that an immigration judge held a bond hearing in compliance with this Court's order, Docket Item 7, but found that the government met its burden on danger and risk of flight. If the petitioner believes there are any further issues properly before this Court, the petitioner may show cause within 14 days of this order. If the petitioner does not show cause why issues remain before this Court within 14 days, the Clerk of Court shall enter judgment and close this case without further order. SO ORDERED. Issued by Hon. Lawrence J. Vilardo on 7/8/2026. (ZHM)Clerk to Follow up (Entered: 07/08/2026)

#10

Jul 22, 2026

JUDGMENT in favor of Emanuel A. Gavarrete Hernandez against David Venturella, James Bausch, Markwayne Mullin, Todd Blanche. Signed by Andrew W. Moeller, Clerk of Court, on 7/22/2026. (DDS) (Entered: 07/22/2026)

#11

Jul 22, 2026

Letter filed by Emanuel A. Gavarrete Hernandez Objection to Closure. (Fankbonner, Edgar) (Entered: 07/22/2026)

#12

Jul 22, 2026

TEXT ORDER re 11 Letter filed by Emanuel A. Gavarrete Hernandez On 7/8/2026, after the petitioner received a bond hearing where an immigration judge found that the government met its burden on danger and risk of flight, this Court ordered the petitioner to "show cause within 14 days" as to whether any issues remain before this Court. See Docket Item 9 . In response, the petitioner has filed a letter letter "respectfully request[ing] that" this matter "not be closed[] so that the Court may review the transcript... of the [petitioner's] custody proceeding." See Docket Item 11 at 1. The Court construes that letter as a motion to enforce the 6/25/2026 order directing the respondents to provide the petitioner with a bond hearing where the government was to "bear 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." See Docket Item 7 . Accordingly, the petitioner may supplement the arguments made in his letter, Docket Item 11, by 7/27/2026. The government shall file a response, along with a transcript of the petitioner's bond hearing, on or before 8/10/2026. The petitioner may reply by 8/17/2026. Virtual oral Argument set for 8/28/2026 at 10:30 AM in Niagara Courtroom, 8th Floor West, 2 Niagara Square, Buffalo, NY before Hon. Lawrence J. Vilardo. Dial-in instructions will be sent directly to the parties. SO ORDERED. Issued by Hon. Lawrence J. Vilardo on 7/22/2026. (ZHM) (Entered: 07/22/2026)

#13

Jul 30, 2026

Letter filed by James Bausch, Todd Blanche, Markwayne Mullin, David Venturella with copy of bond hearing transcript. (Khalil, Adam) (Entered: 07/30/2026)

#14

Aug 09, 2026

Letter filed by James Bausch, Todd Blanche, Markwayne Mullin, David Venturella re missing transcription of decision and short extension to obtain same. (Khalil, Adam) (Entered: 08/09/2026)

#15

Aug 10, 2026

Letter filed by James Bausch, Todd Blanche, Markwayne Mullin, David Venturella with transcript of oral decision. (Khalil, Adam) (Entered: 08/10/2026)

#16

Aug 10, 2026

REPLY/RESPONSE to re 12 Text Order,,,,,,, Set Hearings,,,,,, filed by James Bausch, Todd Blanche, Markwayne Mullin, David Venturella. (Khalil, Adam) (Entered: 08/10/2026)

#17

Aug 17, 2026

REPLY to Response to Motion re 2 MOTION for Order to Show Cause Motion to Enforce filed by Emanuel A. Gavarrete Hernandez. (Attachments: # 1 Exhibit Exh. A, Form I-213, # 2 Exhibit Exh. B, 2022 I-213, # 3 Exhibit Exh. C, Verification of Release, # 4 Exhibit Exh. D, Petitioner's Bond Evidence)(Fankbonner, Edgar) (Entered: 08/17/2026)

#18

Aug 28, 2026

Minute Entry for proceedings held before Hon. Lawrence J. Vilardo: Oral Argument re 11 Letter filed by Emanuel A. Gavarrete Hernandez held on 8/28/2026. Court ordered that this proceeding is not to be recorded, or taped in any way. If someone does record it, they will be found in contempt of court. After hearing from parties, the Court directed petitioner to file submission as stated by 9/4/2026. Respondent's response by 9/11/2026. Petitioner's reply, if any, due by 9/16/2026. Court reserved decision. Appearances by Teams Video Conference. For petitioner: Edgar L. Fankbonner. For respondents: AUSA Adam Khalil. (Court Reporter Laurel Tubbs.) (CMD) (Entered: 08/28/2026)

#19

Sep 04, 2026

MOTION for Extension of Time to File Submission in Support of Motion to Enforce by Emanuel A. Gavarrete Hernandez. (Attachments: # 1 Declaration Affirmation of Edgar Loy Fankbonner, Esq.)(Fankbonner, Edgar) (Entered: 09/04/2026)

#20

Sep 04, 2026

TEXT ORDER granting the petitioner's motion, Docket Item 19, for an extension of time to file further briefing. The petitioner's submission is due 9/7/2026. The respondents' response is due 9/14/2026. The petitioner's reply, if any, is due 9/21/2026. SO ORDERED. Issued by Hon. Lawrence J. Vilardo on 9/4/2026.(ZHM) (Entered: 09/04/2026)