Western District of New York • 1:26-cv-02059

#1

Sep 21, 2026

PETITION for Writ of Habeas Corpus, filed by Stewander Rosier. (Attachments: # 1 Civil Cover Sheet) (KKR) (Entered: 09/22/2026)

#2

Sep 21, 2026

MOTION to Appoint Counsel by Stewander Rosier. (KKR) (Entered: 09/22/2026)

Sep 21, 2026

No filing fee or Motion for Leave to Proceed in forma pauperis received. (KKR)

#3

Sep 22, 2026

TEXT ORDER re 1 Petition for Writ of Habeas Corpus filed by Stewander Rosier. So that the petitioner can fully participate in these proceedings, 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). If the petitioner was in the Western District of New York at the petition was filed but was subsequently transferred prior to this order, the respondents shall return the petitioner 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 9/29/2026, 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, to the extent an unlawful arrest is alleged in the petition, the respondents also shall SHOW CAUSE on or before 9/29/2026 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. SO ORDERED. Issued by Hon. Lawrence J. Vilardo on 9/22/2026. Chambers emailed a copy of this text order and the petition to usanyw-immigration-habeas@usdoj.gov. (DDC)This was mailed to: the petitioner. (Entered: 09/22/2026)

Sep 22, 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 provided to petitioner the Prisoner Pro Se Packet, consisting of Privacy Notice, Consent to Proceed Before a Magistrate Judge, and Civil Case Timeline. (KKR)

#4

Sep 28, 2026

NOTICE of Appearance of Government Attorney: Adam A. Khalil, appearing on behalf of Director of Immigration and Customs Enforcement, Secretary of Department of Homeland Security, Warden of Buffalo Batavia Service Processing Center. CLERK TO FOLLOW UP. (Khalil, Adam) (Entered: 09/28/2026)

#5

Sep 28, 2026

REPLY/RESPONSE to re 3 Text Order,,,,,,,,,,,,,,, filed by Director of Immigration and Customs Enforcement, Secretary of Department of Homeland Security, Warden of Buffalo Batavia Service Processing Center. (Khalil, Adam) (Entered: 09/28/2026)

#6

Sep 28, 2026

CERTIFICATE OF SERVICE by Director of Immigration and Customs Enforcement, Secretary of Department of Homeland Security, Warden of Buffalo Batavia Service Processing Center re 5 Reply/Response (Khalil, Adam) (Entered: 09/28/2026)

#7

Sep 28, 2026

TEXT ORDER re 1 Petition for Writ of Habeas Corpus filed by Stewander Rosier On 9/22/2026, this Court ordered the respondents to show cause why, in light of this Court's decision in Cabrera Martinez v. Marich, 816 F. Supp. 3d 356 (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 3. In response, the "[r]espondents acknowledge[d] that this Court's prior ruling [in Cabrera Martinez] concern[ed] a similar challenge to the government policy or practice at issue in this case, and if the Court follows that prior ruling, it would control the result in this case." Docket Item 5 at 1. The respondents have reserved all rights, including the right to appeal, and this Court appreciates their efforts "to conserve judicial and party resources" by not rehashing issues that this Court already has decided. See id. Accordingly, for the reasons explained in Cabrera Martinez, 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 10/6/2026, the respondents shall file a status report confirming that the petitioner has either been granted a bond hearing in compliance with this order or released from custody. SO ORDERED. Issued by Hon. Lawrence J. Vilardo on 9/28/2026. (AJM)This was mailed to: The petitioner. (Entered: 09/28/2026)

#8

Sep 29, 2026

TEXT ORDER re 5 Reply/Response filed by Director of Immigration and Customs Enforcement, Warden of Buffalo Batavia Service Processing Center, Secretary of Department of Homeland Security. The petitioner may reply to the respondents' submission in support of his request for immediate release, see Docket Item 5 at 5-6, 10, on or before 10/6/2026. SO ORDERED. Issued by Hon. Lawrence J. Vilardo on 9/29/2026. (DDC)This was mailed to: the petitioner. (Entered: 09/29/2026)

#9

Oct 02, 2026

TEXT ORDER re 1 Petition for Writ of Habeas Corpus filed by Stewander Rosier. Whenever an individual submits a petition for a writ of habeas corpus, the individual must either (a) pay the $5.00 filing fee, see 28 U.S.C. § 1914(a), or (b) submit a motion to proceed in forma pauperis ("IFP"). As required by statute, an immigration detainee that seeks to proceed IFP must submit an affidavit or affirmation detailing the petitioner's assets and liabilities and swearing under oath the petitioner is unable to pay the filing fee. See 28 U.S.C. § 1915(a)(1); see also id. § 1915(h) (noting that Prison Litigation Reform Act's other requirements for proceeding IFP only apply to a "prisoner... accused of, convicted of, sentenced for, or adjudicated delinquent for... violations of criminal law").Here, the petitioner did not pay the $5.00 filing fee, nor did he submit a motion to proceed IFP. See Docket Entry, dated 9/21/2026. Despite this deficiency, in light of the serious issues raised by the petition, see Docket Item 1, and the "[r]espondents acknowledg[ment] that this Court's prior ruling [in Cabrera Martinez] concern[ed] a similar challenge to the government policy or practice at issue in this case, and if the Court follow[ed] that prior ruling, it would control the result in this case," Docket Item 5 at 1, the Court deems it appropriate to proceed with the bond hearing as ordered, see Docket Item 7. Any further action is conditioned on the petitioner's submitting either a motion to proceed IFP or paying the $5.00 filing fee. SO ORDERED. Issued by Hon. Lawrence J. Vilardo on 10/2/2026. (WTW) This was mailed to: the petitioner. (Entered: 10/02/2026)

#10

Oct 05, 2026

MOTION for Immediate Release by Stewander Rosier. (CGJ) (Entered: 10/05/2026)

Oct 05, 2026

Filing fee received: $5.00, receipt number 600002014 (CGJ)

#11

Oct 06, 2026

Letter filed by Director of Immigration and Customs Enforcement, Secretary of Department of Homeland Security, Warden of Buffalo Batavia Service Processing Center re bond hearing. (Khalil, Adam) (Entered: 10/06/2026)

#12

Oct 06, 2026

CERTIFICATE OF SERVICE by Director of Immigration and Customs Enforcement, Secretary of Department of Homeland Security, Warden of Buffalo Batavia Service Processing Center re 11 Letter (Khalil, Adam) (Entered: 10/06/2026)

#13

Oct 07, 2026

TEXT ORDER: on 9/28/2026, the Court granted the petition brought by the petitioner, Stewander Rosier, and ordered the respondents "to provide [Rosier] with an individualized bond hearing before an immigration judge." Docket Item 7. At that bond hearing, the government was to "bear the burden to demonstrate, by clear and convincing evidence, that [Rosier wa]s a danger to the community or a flight risk," and the immigration judge was to "consider non-bond alternatives to detention or, if setting a bond, [Rosier's] ability to pay." Id. The respondents subsequently filed a letter indicating that an immigration judge held a bond hearing in compliance with this Court's order, Docket Item 11, but found that the government met its burden on risk of flight. In the interim, Rosier filed a motion for immediate release. See Docket Item 10 . The Court finds that further briefing is necessary for its consideration of Rosier's request. Accordingly, on or before 10/14/2026, the respondents shall reply to Rosier's motion. SO ORDERED. Issued by Hon. Lawrence J. Vilardo on 10/7/2026. (WTW) This was mailed to: the petitioner. (Entered: 10/07/2026)

#14

Oct 13, 2026

REPLY/RESPONSE to re 13 Text Order,,,, filed by Director of Immigration and Customs Enforcement, Secretary of Department of Homeland Security, Warden of Buffalo Batavia Service Processing Center. (Khalil, Adam) (Entered: 10/13/2026)

#15

Oct 13, 2026

CERTIFICATE OF SERVICE by Director of Immigration and Customs Enforcement, Secretary of Department of Homeland Security, Warden of Buffalo Batavia Service Processing Center re 14 Reply/Response (Khalil, Adam) (Entered: 10/13/2026)

#16

Oct 14, 2026

MOTION to Enforce by Stewander Rosier. (CGJ) (Entered: 10/14/2026)

#17

Oct 15, 2026

TEXT ORDER re 16 MOTION to Enforce Judgment filed by Stewander Rosier. The respondents shall respond and provide a transcript of the bond hearing by 10/29/2026. The petitioner may reply by 11/5/2026. SO ORDERED. Issued by Hon. Lawrence J. Vilardo on 10/15/2026. (WTW)This was mailed to: the petitioner. (Entered: 10/15/2026)

#18

Oct 21, 2026

TEXT ORDER: On 9/28/2026, this Court ordered the respondents to provide the petitioner, Stewander Rosier, "with an individualized bond hearing before an immigration judge." Docket Item 7. At that hearing, "the government [would] bear the burden to demonstrate, by clear and convincing evidence, that [Rosier] is a danger to the community or a flight risk," and "the immigration judge [was to] consider non-bond alternatives to detention or, if setting a bond, [Rosier]'s ability to pay." Id. On 10/5/2026, an immigration judge held a bond hearing and found that the government had met its burden on risk of flight. See Docket Item 11 at 2. In the interim, Rosier filed a motion for immediate release, arguing that Immigration and Customs Enforcement ("ICE") "arrested [him] illegally without issuing a [w]arrant or Notice to Appear." Docket Item 10 at 1. The government responded to that motion, Docket Item 14, arguing that Rosier was properly served with a warrant and Notice to Appear and that Rosier's "request should be denied in its entirety," id. at 1. After carefully reviewing the parties' submissions, this Court finds that Rosier has not met his burden of demonstrating that the circumstances of his arrest warrant immediate release. See Dzhabrailov v. Decker, 2020 WL 2731966, at *3 (S.D.N.Y. May 26, 2020) (explaining that "[w]hen a petitioner brings a habeas petition [under section] 2241, the petitioner 'bears the burden of proving that he is being held contrary to law; and because the habeas proceeding is civil in nature, the petitioner must satisfy his burden of proof by a preponderance of the evidence'" (quoting Skaftouros v. United States, 667 F.3d 144, 158 (2d Cir. 2011))). More specifically, the Court finds that to the extent that there was a regulatory violation, it was "technical" and "non-prejudicial" and therefore does not rise to the level of violation that warrants immediate release. Cf. Rajah v. Mukasey, 544 F.3d 427, 447 (2d Cir. 2008) ("It would enormously decrease the productivity of [immigration] officers to require them to compile extensive contemporaneous documentation... solely to rebut allegations of technical, non-prejudicial regulatory violations."). In reaching this conclusion, the Court is mindful of the Second Circuit's admonition that "litigating the conduct surrounding an arrest would impose an intolerable administrative burden on the immigration enforcement system." Id. For all those reasons, this Court finds that immediate release is not warranted. Rosier's motion, Docket Item 10, therefore is DENIED. SO ORDERED. Issued by Hon. Lawrence J. Vilardo on 10/21/2026. (WTW) This was mailed to: the petitioner. (Entered: 10/21/2026)