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Case 1:26-cv-02251-EAW Document5 Filed 10/14/26 Page1of3

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

DAVID SANDZHIEV,
Petitioner, DECISION AND ORDER
Vv. 1:26-CV-02251-EAW
DAVID BANKS, Patrol Agent in Charge,
U.S. Border Patrol, Buffalo Station, et

al.,!

Respondents.

Petitioner David Sandzhiev (“Petitioner”) is a civil immigration detainee alleging
that he is being detained in United States Immigration and Customs Enforcement (“ICE”)
custody pending removal proceedings in violation of the United States Constitution. (Dkt.
1). He seeks relief under 28 U.S.C. § 2241. (/d.). Petitioner is being held at the Buffalo
Federal Detention Facility in Batavia, New York. (/d. at § 7).

The Second Circuit issued a decision in da Cunha v. Freden, 175 F.4th 61 (2d Cir.
2026), holding that noncitizens who are present in the United States after entering without
inspection and admission and who were not apprehended at or near the border at the time

of entry are not subject to mandatory detention under 8 U.S.C. § 1225(b)(2) but instead are

1 Peter Sukmanowski is the Acting Field Office Director of the Buffalo Field Office
of the United States Immigration and Customs Enforcement and thus is substituted as
Respondent in place of Philip Rhoney pursuant to Federal Rule of Civil Procedure 25(d).
The Clerk of Court is directed to update the docket to reflect this substitution.

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Case 1:26-cv-02251-EAW Document5 Filed 10/14/26 Page 2of3

subject to detention under section 1226(a). In addition, this Court issued Decisions and
Orders in Ivonin v. Rhoney, et al., No. 6:25-CV-06673 EAW, 2026 WL 199283 (W.D.N-Y.
Jan. 26, 2026) and Ab-Rahim v. Marich, No. 6:26-CV-06005-EAW, 2026 WL 279113, at
*1 (W.D.N.Y. Feb. 3, 2026), holding that the detention of noncitizens following expiration
of parole is also governed by 8 U.S.C. § 1226(a), and not § 1225(b)(2). Respondents do
not contest that the rulings in the identified cases concern the same or similar challenges to
the government policy or practice at issue in the instant petition and would direct the same
outcome in this matter entitling Petitioner to a bond hearing. (Dkt. 4).

Accordingly, for the reasons articulated in the aforementioned decisions, the petition
is granted to the extent that Petitioner seeks a bond hearing, and a bond hearing shall be
conducted in accordance with the following terms:

1. Petitioner shall be granted a bond hearing before an immigration judge (“IJ”)

on or before October 21, 2026. If Petitioner requests a continuance that results in a bond

hearing date outside this deadline, such a continuance will comply with this Order as long
as the new date falls within a reasonable time period.

2. After considering the balancing test set forth in Mathews v. Eldridge, 424
U.S. 319 (1976), the Court concludes that the government shall have the burden to
demonstrate dangerousness or flight risk by clear and convincing evidence. See Nany v.
Blanche et al., No. 1:26-CV-01187-EAW, 2026 WL 1842635, at *4-5 (W.D.N.Y. June 26,
2026) (Court’s analysis of Mathews factors under similar circumstances to this case, which
applies equally here); Lieogo v. Freden, No. 6:25-CV-06615 EAW, 2025 WL 3290694, at

*4-5 (W.D.N.Y. Nov. 26, 2025) (same). In deciding whether the government has met its

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Case 1:26-cv-02251-EAW Document5 Filed 10/14/26 Page 3of3

burden of proof, the IJ must consider whether less-restrictive alternatives to detention can
reasonably address the government’s interest in Petitioner’s continued detention. In setting
any bond, the IJ must consider Petitioner’s ability to pay.

3. Thus, in order to continue Petitioner’s detention after any bond hearing, the
IJ must find by clear and convincing evidence and make findings that no condition or
combination of conditions of release can reasonably ensure Petitioner’s appearance and the
safety of the community—that is, even with conditions, Petitioner presents an identified
and articulable risk of flight or a threat to another person or the community.

4. Respondents are directed to file a status update with the Court on or before

October 23, 2026.

SO ORDERED.

United States District Court

Dated: October 14, 2026
Rochester, New York