Western District of New York • 1:26-cv-01861

#1

Aug 28, 2026

PETITION for Writ of Habeas Corpus, filed by Abdel A. Diop. (Attachments: # 1 Civil Cover Sheet, # 2 Envelope)(ARS) (Entered: 08/28/2026)

#2

Aug 28, 2026

MOTION for Temporary Restraining Order by Abdel A. Diop.(ARS) (Entered: 08/28/2026)

#3

Aug 28, 2026

TEXT ORDER re 1 Petition for Writ of Habeas Corpus filed by Abdel A. Diop. An "[a]pplication for a writ of habeas corpus shall be in writing signed and verified by the person for whose relief it is intended or by someone acting [o]n his behalf." 28 U.S.C. § 2242. "When the petition is brought by a person other than the one seeking relief, the 'next friend' must demonstrate that he or she has standing to act on the person's behalf." Chinnery by Connally Bey v. Spano, 2023 WL 316534, at *1 (S.D.N.Y. Jan. 19, 2023). Without such standing, a court does not have jurisdiction to hear the petition. See Morais Filho on behalf of Moros v. Bondi, 2026 WL 61958, at *1 (S.D.N.Y. Jan. 8, 2026); see also Wang v. City of New York, 2009 WL 705966, at *1 (E.D.N.Y. Mar. 16, 2009) ("When the application for habeas corpus filed by a would[-]be next friend does not set forth an adequate reason or explanation of the necessity for resort to the next friend device, the court is without jurisdiction to consider the petition." (alteration, citation, and internal quotation marks omitted)). "There are two prerequisites for next friend standing: (1) the next friend 'must provide an adequate explanation...why the real party in interest cannot appear on his [or her] own behalf to prosecute the action'; and (2) the next friend 'must be truly dedicated to the best interests of the person on whose behalf he [or she] seeks to litigate' and must 'have some significant relationship with the real party in interest.'" Iza by Iza v. Larocco, 814 F. Supp. 3d 357, 370 (E.D.N.Y. 2026) (quoting Whitmore v. Arkansas, 495 U.S. 149, 163-64 (1990)). The petitioner's brother, Abou A. Diop ("Abou"), has submitted the petition on his behalf. See Docket Item 1. And based on Abou's submission, he satisfies the prerequisites for next friend standing. First, the petitioner "received no education... [,] can[]not read or write," and speaks only "a few words" in English. Docket Item 1 at 20. Moreover, Abou is "truly dedicated" to the best interests of the petitioner, his brother. He is "responsible for" the petitioner and has been "in contact with him" since he has been in custody. Docket Item 1 at 20. Therefore, Abou has standing, and the Court addresses the merits of the petition. 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. 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 Barbosa 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 9/4/2026, 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, the respondents also shall SHOW CAUSE on or before 9/4/2026 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. Abou also has moved for a temporary restraining order, but his submission does not specify the relief that he seeks. See Docket Item 2. Because the petition includes a proposed order granting the motion, see Docket Item 1 at 41-42, the Court construes the motion for a temporary restraining order, Docket Item 2, as requesting the relief listed in that proposed order. Accordingly, so that the petitioner can fully participate in these proceedings, the motion for a temporary restraining order, Docket Item 2, is GRANTED IN PART, and 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). SO ORDERED. Issued by Hon. Lawrence J. Vilardo on 8/28/2026. (RFI)This was mailed to: Abou A. Diop and Abdel A. Diop. Modified on 8/28/2026 to correct typographical error (RFI). (Entered: 08/28/2026)

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

Aug 28, 2026

Filing fee: $ 5, receipt number 100010350 (ARS)