Western District of New York • 1:26-cv-01975

#1

Sep 14, 2026

PETITION for Writ of Habeas Corpus, filed by Jesus Alberto Martinez Romero, Josue Alexander Hernandez Fernandez. (Attachments: # 1 Civil Cover Sheet, # 2 Envelope)(MMG) (Entered: 09/14/2026)

#2

Sep 14, 2026

EMERGENCY MOTION for Temporary Restraining Order, Expedited Order to Show Cause, and Provisional Release by Josue Alexander Hernandez Fernandez, Jesus Alberto Martinez Romero.(MMG) (Entered: 09/14/2026)

#3

Sep 14, 2026

MOTION to Appoint Counsel by Josue Alexander Hernandez Fernandez, Jesus Alberto Martinez Romero.(MMG) (Entered: 09/14/2026)

#4

Sep 14, 2026

TEXT ORDER re 1 Petition for Writ of Habeas Corpus filed by Josue Alexander Hernandez Fernandez, Jesus Alberto Martinez Romero; 3 MOTION to Appoint Counsel filed by Josue Alexander Hernandez Fernandez, Jesus Alberto Martinez Romero; and granting in part 2 MOTION for Temporary Restraining Order MOTION for Order to Show Cause filed by Josue Alexander Hernandez Fernandez, Jesus Alberto Martinez Romero.So that the petitioners can fully participate in these proceedings, the respondents are enjoined from transferring the petitioners 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 petitioners were in the Western District of New York at the petition was filed but were subsequently transferred prior to this order, the respondents shall return the petitioners to this District as soon as practicable. Travel to facilitate the petitioners' voluntary departure does not violate this order.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). It appears that the holdings of Barbosa da Cunha, Alvarez Ortiz, Cabrera Martinez, and/or Mata Velasquez may apply to the petitioner in this case. Accordingly, the respondents are hereby ORDERED TO SHOW CAUSE on or before 9/21/2026, 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 petitioners receive bond hearings at which the government bears the burden to demonstrate, by clear and convincing evidence, that the petitioners are 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 petitioners' 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 9/21/2026 why the petitioners are not entitled to immediate release under Last Name Unknown and/or Loaeza, including providing a copy of any warrants or Notices to Appear that the respondents say were issued.On or before 9/21/2026 the respondents also shall respond to the petitioners' motion to appoint counsel, Docket Item 3, and the petitioners' arguments regarding joinder, see Docket Item 1 at 2. SO ORDERED. Issued by Hon. Lawrence J. Vilardo on 9/14/2026. Chambers emailed a copy of this text order and the petition to usanyw-immigration-habeas@usdoj.gov. (DDC)This was mailed to: the petitioners. (Entered: 09/14/2026)

Sep 14, 2026

Filing fee: $ 5.00, receipt number 100010453 (MMG)

Sep 14, 2026

Clerk's Office mailed to Petitioners a Pro Se Packet consisting of privacy notice, consent to proceed before a magistrate judge, and civil case timeline. (MMG)

Sep 14, 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. (MMG)