MUILU LUKANU v. LYONS et al

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
BENIE MUILU LUKANU, 	)
)
Petitioner 	)
)
v. 	) 	No. 2:26-cv-00095-LEW
)
TODD LYONS, Acting Director of 	)
U.S. Immigration and Customs 	)
Enforcement, et al., 	)
)
Respondents 	)
ORDER ON PETITION FOR WRIT OF HABEAS CORPUS
Before the Court is Petitioner Benie Muilu Lukanu’s Amended Petition for Writ of
Habeas Corpus (ECF No. 6). 	Petitioner seeks relief from restraints on her liberty and a
preventive injunction prohibiting her arrest by Immigration and Customs Enforcement
agents unless an immigration judge preauthorizes her detention. Respondent Todd Lyons,
Acting Director of U.S. Immigration and Customs Enforcement, and the other federal
respondents oppose the Petition. For the following reasons, the Petition is denied without
a hearing.1
1 Neither party has requested a hearing though I prompted them to do so if there might be cause.
See 	Tijerina v. Thornburgh, 884 F.2d 861, 866 (5th Cir. 1989) (finding that although 28 U.S.C.
§ 2243 requires the court to “summarily hear and determine the facts,” the court need not hold an
evidentiary hearing “[w]here the [habeas] petitioner raises only questions of law, or questions regarding
the legal implications of undisputed facts”) (collecting case).
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BACKGROUND
The following background statement is drawn from the Amended Verified Petition,
the Return and Response, Petitioner’s Reply, and exhibits introduced in support of those
filings.
Petitioner is a national of the Democratic Republic of Congo (“DRC”). According
to her Amended Petition, which is verified, Petitioner presently lives in Portland, Maine,
with her husband and nine-month-old United States citizen daughter. 	Petitioner first
unlawfully entered the United States in November 2018. She was stopped and detained at
that time and processed for expedited removal under 8 U.S.C. § 1225(b)(1). She applied
for asylum in the United States, which extended her detention,2 but her application was
denied by an immigration judge in an order of removal dated June 13, 2019. On or about
October 13, 2020, Petitioner was removed from the United States.
On or about October 6, 2024, a U.S. Border Patrol (“USBP”) agent encountered
Petitioner at or near Sasabe, Arizona, after she had reentered the United States without
inspection or admission. It was determined that she had entered unlawfully at a time and
place other than as designated by the Attorney General. Thereafter, the Petitioner’s June
2019 order of removal was reinstated under 8 U.S.C. § 1231(a)(5). At the time of this
encounter, Petitioner did not claim fear of removal to the Democratic Republic of Congo.
She was released from custody and issued an order of release on recognizance, instead of
an order of supervision. As a condition of release, Petitioner was enrolled in an alternative
2 Petitioner was detained on an order of an immigration judge following a custody redetermination hearing,
in accordance with ICE practice circa 2019.
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to detention, weekly biometric reporting program, without GPS monitoring. 	Evidently,
this involves carrying a cell phone and weekly reporting. 	Failure to comply with these
conditions may result in Petitioner’s arrest and deportation. 	Petitioner has not been
detained since her 2024 entry.
DISCUSSION
Petitioner argues that the circumstances of her release necessarily mean that she was
conditionally paroled under 8 U.S.C. § 1226(a)(2)(B). She maintains that an unannounced
arrest and detention on existing process (the reinstated removal order) or an administrative
arrest warrant would violate the Due Process Clause of the Fifth Amendment to the United
States Constitution, even if it would not otherwise violate the Immigration and Nationality
Act (“INS”). She maintains that the only constitutional means of taking her into custody
at this time would be on the order of an immigration judge following a hearing in
immigration court. 	Am. Pet. ¶¶ 8, 22-23; Reply at 2-3, 9, 12-20.
In opposition, Respondents do not cite a particular statute as the source of their
authority to release Petitioner. 	Instead, they cite 8 U.S.C. § 1182(a)(9) and § 1231(a)(2)
as 	the 	source 	of 	their 	statutory 	authority 	to 	detain 	Petitioner 	without 	any 	bond
determination. 	The 	former 	statutory 	provision 	states, 	in 	effect, 	that 	Petitioner 	is
categorically inadmissible to the United States because she reentered sooner than five years
after her prior removal. 	Id. § 1182(a)(9)(A)(i). 	She is in this sense present without the
prospect of admission. The latter statutory provision states, in relevant part, that “[d]uring
the removal period, the Attorney General shall detain the alien.” Id. § 1231(a)(2)(A).
Although not cited by either party, Congress has also legislated:
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If the Attorney General finds that an alien has reentered the United States
illegally after having been removed or having departed voluntarily, under an
order of removal, the prior order of removal is reinstated from its original
date and is not subject to being reopened or reviewed, the alien is not eligible
and may not apply for any relief under this chapter, and the alien shall be
removed under the prior order at any time after the reentry.
Id. § 1232(a)(5). In other words, Petitioner is subject to removal “at any time.” Id.
A. 	Standing and Ripeness
The foregoing statutory provisions frame the merits inquiry. 	But before reaching
the merits, Respondents argue that the Amended Petition should be dismissed because
Petitioner lacks standing and her habeas corpus claim is unripe. Specifically, Respondents
argue that Petitioner seeks relief from detention that she is not presently experiencing.
Respondents also argue that Petitioner is seeking an advisory opinion about the legality of
a possible future scenario rather than any impending harm, describing Petitioner’s fear of
future detention as speculative. 	Return and Response at 1-3. 	To this, Petitioner argues
that she is clearly in custody already because she is subject to an order of removal. Reply
at 1 (quoting Simmonds v. I.N.S., 326 F.3d 351, 354 (2d Cir. 2003) (“[S]ubjecting an alien
to a final order of removal is to place that alien in custody within the meaning of the habeas
statute.”)). Petitioner explains that she is challenging the conditions of her custody, which
includes the procedure upon which she can be taken from her family and removed from
the United States, and which conditions she says are subject to injunctive relief and not
merely an advisory opinion.
I agree with Petitioner that she is in custody for purposes of habeas corpus and that
she may challenge the conditions of her custody, including her apparent vulnerability to
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summary administrative detention without a hearing under the INA. 	The lawfulness of
immigration custody, including related restraints on liberty, is subject to review in a United
States District Court under 28 U.S.C. § 2241. Here, Petitioner is not presently in detention,
but detention for purposes of removal is for her not a matter of if, but when, if I am to take
the statutory scheme at its word. Given this reality, she is subject to “restraints not shared
by the public generally,” Jones v. Cunningham, 371 U.S. 236, 240 (1963) (parolee), and,
consequently, her habeas corpus claim is appropriately before the Court and ripe for
consideration, including in relation to prospective detention.3
B. 	Merits
The INA provides a statutory scheme for the civil detention of noncitizens
unlawfully in the United States, both pending removal proceedings and after a final order
of removal has been entered. 	See generally 8 U.S.C. §§ 1225, 1226, 1231. The
circumstances of entry as well as the stage of the removal process determine where a
noncitizen falls within this scheme and whether detention is discretionary or compulsory.
However, nothing in the statutory scheme of the INA suggests that an immigration judge
is a gatekeeper when it comes to the authority to arrest and detain noncitizens for purposes
of effectuating a removal order. Cf. Johnson v. Guzman Chavez, 594 U.S. 523, 526 (2021)
(“We conclude that § 1231, not § 1226, governs the detention of aliens subject to reinstated
orders of removal, meaning those aliens are not entitled to a bond hearing while they pursue
3 See also Hensley v. Mun. Court, San Jose Milpitas Judicial Dist., 411 U.S. 345, 351 (1973) (release on
personal recognizance); Orellana Juarez v. Moniz, 788 F. Supp. 3d 61, 68 (D. Mass. 2025) (noncitizen
illegally in the United States and subject to intensive supervision).
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withholding of removal.”). It is for this reason that Petitioner’s appeal is to the Due Process
Clause of the Constitution rather than the INA.
The Fifth Amendment provides that “[n]o person shall be . . . deprived of life,
liberty, or property, without due process of law.” 	U.S. Const. am. V. 	The Fifth
Amendment applies to aliens facing removal. Reno v. Flores, 507 U.S. 292, 306 (1993).
Ordinarily, “once passed through our gates, even illegally,” noncitizens “may be expelled
only after proceedings conforming to traditional standards of fairness encompassed in due
process of law.” 	Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 212 (1953).
Yet, “[d]ue process is not a one size fits all proposition.” 	Miranda v. Garland, 34 F.4th
338, 359 (4th Cir. 2022). As the Fourth Circuit has explained:
To the contrary, “due process is flexible and calls for such procedural
protections as the particular situation demands.” 	Morrissey v. Brewer, 408
U.S. 471, 481 (1972). Moreover, “[i]ts flexibility is in its scope once it has
been determined that some process is due; it is a recognition that not all
situations calling for procedural safeguards call for the same kind of
procedure.” Id.; see also Landon v. Plasencia, 459 U.S. 21, 34 (1982) (“The
constitutional sufficiency of procedures provided in any situation, of course,
varies with the circumstances.”).
This is particularly true in the immigration context. The Supreme Court has
stated over and over that “‘[i]n the exercise of its broad power over
immigration and naturalization, Congress regularly makes rules that would
be unacceptable if applied to citizens.’” Demore [v. Kim], 538 U.S. [510],
521 [(2003)] (quoting Mathews v. Diaz, 426 U.S. 67, 79-80 (1976)); see also
Reno v. Flores, 507 U.S. 292, 305-06 (1993) (quoting Fiallo v. Bell, 430 U.S.
787 (1977), in turn quoting Mathews, 426 U.S. at 79-80); United States v.
Verdugo-Urquidez, 494 U.S. 259, 273 (1990) (citing Mathews, 426 U.S. at
79-80).
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Id. Thus, while the Due Process Clause applies to this scenario, it is essential to remember
that Congress has sought through legislation to direct certain outcomes in special cases to
ensure the orderly administration of the INA.
Here in the First Circuit, the leading authority on the subject of immigration
detention and due process is Hernandez-Lara v. Lyons, 10 F.4th 19, 26 (1st Cir. 2021). In
that case, Hernandez-Lara, a habeas petitioner, was arrested and detained “pending a
determination of her removability.” 	Id. at 23. 	She entered the United States in 2013
without inspection and settled in the interior for five years before she was discovered and
arrested. Id. The Government gave her a detention hearing before an immigration judge,
but the immigration judge placed the burden on Hernandez-Lara to prove that she did not
pose a flight risk or a danger to the community. Id. The immigration judge concluded that
she had not carried her burden. 	Hernandez-Lara filed a habeas petition and the District
Court ruled that the immigration judge placed the burden on the wrong party. The District
Court also ruled that due process required the Government to prove dangerousness or flight
risk by clear and convincing evidence. Id. at 23-24.
On appeal, a divided panel of the First Circuit affirmed in part and reversed in part.
It held that the Due Process Clause requires the Government to bear the burden of proof at
a detention redetermination hearing (a/k/a bond hearing) but that the more likely than not
standard governs rather than the clear and convincing evidence standard. Id. at 24, 46. It
arrived at that conclusion based on a Mathews v. Eldridge analysis. 	Id. at 27-28 (citing
Mathews v. Eldridge, 424 U.S. 319, 335 (1976)).
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Before I conduct such an analysis, I set the stage with a few observations. Of special
note, Hernandez-Lara was settled in the United States for a significant duration. She was
never apprehended at the border, inspected, or administratively released. 	She also was
neither an unlawful reentrant nor someone subject to an existing order of removal. 	Also
of special note, the Hernandez-Lara Court did not address the procedural requirements for
an arrest in the wake of a removal order.4 The Court only evaluated what process is proper
for an immigration judge to observe in the context of a pre-removal bond hearing. 	And
while this District Court and others have expanded the application of Hernandez-Lara to
noncitizens seeking bond hearings who have a variety of different entry circumstances and
immigration statuses, to my knowledge this District Court has never gone so far as to
transpose the Hernandez-Lara procedure onto noncitizens who are subject to orders of
removal, let alone noncitizens who have unlawfully reentered the United States after a prior
removal and for whom Congress has specified that detention is appropriate. Nor has this
Court ordered the Attorney General or her designees to give immigration judges primacy
over post-removal-order arrest determinations.5
4 The First Circuit also did not forbid detention pending a bond hearing. See, e.g., Doe v. Tompkins, 11
F.4th 1, 2 (1st Cir. 2021) (“For the reasons stated in Hernandez-Lara v. Lyons, . . . we agree with the district
court’s conclusion that Doe is entitled to a new hearing before an IJ at which the government will bear the
burden of proving either dangerousness or flight risk in order to continue detaining Doe.” (emphasis
added)).
5 In Bermeo Sicha v. Bernal, No. 1:25-CV-00418-SDN, 2025 WL 2494530 (D. Me. Aug. 29, 2025), Judge
Neumann ruled that the Attorney General may not revoke a noncitizen’s release pursuant to a bond order
without first demonstrating a change in circumstances that justifies detention. Petitioner Bermeo Sicha was
subject to a preexisting release order. Id. at *1, *7. But he was not subject to a final order of removal. Id.
at *3. I read Bermeo Sicha as requiring a redetermination hearing before an immigration judge before a
prior bond order by an immigration judge can be overridden on order of the Attorney General in the pre-
removal context. That circumstance is not presently before me.
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Still, despite these significant differences, a Mathews v. Eldridge analysis is
appropriate. The three Mathews factors are: (1) “the private interest that will be affected
by the official action”; (2) “the risk of an erroneous deprivation of such interest through
the procedures used, and the probable value, if any, of additional or substitute procedural
safeguards”; and (3) “the Government’s interest, including the function involved and the
fiscal and administrative burdens that the additional or substitute procedural requirement
would entail.” Id. at 28 (quoting Mathews, 424 U.S. at 335). 	“The burden of proof of
showing deprivation of rights leading to unlawful detention is on the petitioner.” Espinoza
v. Sabol, 558 F.3d 83, 89 (1st Cir. 2009) (citing Walker v. Johnston, 312 U.S. 275, 286
(1941)).
1. 	The private interest
“Freedom from imprisonment—from government custody, detention, or other
forms of physical restraint—lies at the heart of the liberty that [the Due Process] Clause
protects.” Zadvydas v. Davis, 533 U.S. 678, 695 (2001) (citing Foucha v. Louisiana, 504
U.S. 71, 	80 (1992)). 	“[C]ivil 	commitment for any 	purpose constitutes a 	significant
deprivation of liberty that requires due process protections.” Addington v. Texas, 441 U.S.
418, 425 (1979). In particular, detention upon accusation, in advance of trial or hearing, is
the exception rather than the norm. Hernandez-Lara, 10 F.4th at 28 (citing United States
v. Salerno, 481 U.S. 739, 755 (1987)).
Petitioner Muilu Lukanu has been released on conditions for roughly 17 months.
She must report weekly and must observe curfew but is otherwise at liberty. As someone
who is not presently detained, her interest in freedom from imprisonment is essentially
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being honored pending her removal. She has not been subjected to a substantial deprivation
of liberty during her latest visit to the United States. At some point, it is to be anticipated,
that will change, but there is at present no cause to assume that she will experience
prolonged detention to effectuate her removal to her home nation.6 	Importantly, Petitioner
is not presently awaiting a trial or hearing concerning the appropriateness of removal.
Because she unlawfully returned within five years of her last removal, she is not entitled
to a hearing on the propriety of removal. She is subject to removal by law. Under these
circumstances, there is no cause to anticipate detention throughout the pendency of a
prolonged administrative proceeding and appeal. When the time comes for her removal, it
is to be hoped that she will receive some advance notice, but that is not what she seeks.
Instead, she seeks a procedural retooling of the administrative apparatus so that an
immigration judge rather than the Attorney General controls the issuance (and presumably
the timing) of a warrant for her arrest for removal purposes.
Petitioner’s interest is not the same as Hernandez-Lara’s. 	She falls into a special
category under which her current liberty—subject to minimal conditions—is a fortunate
status rather than a presumed entitlement.7 	And although she faces separation from her
6 Zadvydas v. Davis, 533 U.S. 678 (2001), separately affords protection against prolonged post-removal-
order detention. This case is not presently a Zadvydas case and there is no cause to anticipate it will become
one. Should it ever, a new habeas petition could remediate such a deprivation.
7 Petitioner’s status is remarkable. Presumably it is a function of the Attorney General’s failure to remove
Petitioner from the United States within 90 days of the reinstated removal order. See 8 U.S.C. § 1231(a)(3).
[Title] 8 U.S.C. § 1231, which governs noncitizens who have been charged with a final
order of removal, unequivocally mandates detention of the noncitizen during the removal
period, which is prescribed to last no more than ninety days under most circumstances. See
8 U.S.C. § 1231(a)(2)(A) (“During the removal period, the Attorney General shall detain
the alien. Under no circumstance during the removal period shall the Attorney General
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family, a consequence saddening in the extreme, that is the unavoidable consequence of
Congress’s prescribed penalty for an early, illegal reentry. Petitioner’s liberty in the United
States has been of sufficient duration to develop communal bonds and give birth to a child,
which counts in her favor in the due process calculus. But throughout that time, Petitioner
has nonetheless been subject to monitoring that serves as a constant reminder of the
pendency of her removal.
For all of these reasons, I find that the first Mathews factor, which is commonly the
most compelling factor for a noncitizen habeas petitioner, is not a compelling factor in this
case and that Petitioner has failed to carry her burden. I so find as to both the imposition
of being subject to detention for purposes of removal and the conditions of Petitioner’s pre-
removal release, which do not strike me as unconstitutionally onerous in light of
Petitioner’s status as an illegal reentrant.
2. 	The risk of error and value of additional safeguards
Procedural due process rules are designed not to prevent deprivation, but to ensure
that any deprivation of a fundamental right is justified and not mistaken. 	Hamdi v.
Rumsfeld, 542 U.S. 507, 530 (2004) (citing Carey v. Piphus, 435 U.S. 247, 259 (1978)).
On the risk of erroneous deprivation, Petitioner argues that the hearing she requests would
be of value to her. Reply at 16. However, she does not really contend with the statutory
release an alien who has been found inadmissible ....”); 8 U.S.C. § 1231(a)(1)(A) (“[W]hen
an alien is ordered removed, the Attorney General shall remove the alien from the United
States within a period of 90 days ....”).
Lison Ferro v. Hyde, 2:25-cv-00513-SDN, 2025 WL 3003708, at *2 (D. Me. Oct. 27, 2025).
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reality that detention for removal purposes, assuming it is not prolonged, would not be
“erroneous” due to her early reentry to the United States, which called for the reinstatement
of her removal order. This is not a case like Hernandez-Lara where shifting the burden of
proof yielded significant benefits in regard to the avoidance of erroneous deprivations.
Instead, in this case Petitioner seeks to reinvent the administrative rules for her convenience
rather than to promote any safeguard against error. 	Again, Petitioner fails to make a
convincing case under Mathews.
3. 	The Government’s interest
Petitioner argues that Respondents’ interest in taking her out of her home without a
hearing is low, even for purposes of effectuating a removal order. Reply at 14. She also
appears to argue that once the Government takes a lenient approach, it has no interest in
back tracking. 	Id. at 15-16. 	The Government’s interest in avoiding the procedure
Petitioner advocates is actually substantial. The administrative burdens of implementing
the INA are great as it stands. Petitioner’s proposal would require the Attorney General to
stand up additional hearings before immigration judges for the purpose of carrying out
removal orders whenever a noncitizen is not already detained. 	The immigration courts
would thereby be tasked with all manner of logistical considerations that are more
appropriately administered by the Attorney General under the statutory framework on the
INA. 	Given the administrative burden and the unlikely utility of such a procedure, I
conclude that the third Mathews factor does not commend Petitioner’s proposal.
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CONCLUSION
Petitioner’s due process challenge to her current status as an illegal reentrant with a
reinstated removal order who remains at liberty and subject to only minimal supervisory
restraints is unconvincing on all three of the Mathews v. Eldridge factors. Consequently,
her Amended Petition is DENIED (ECF No. 6) and the case is DISMISSED. The restraint
imposed on Respondents in my February 24, 2026 Order is VACATED.
SO ORDERED.
Dated this 11th day of March, 2026.
/s/ Lance E. Walker
Chief U.S. District Judge
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