Espana v. Nessinger et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
FABRICIO GIL ESPAÑA,
Petitioner,
v.
MICHAEL NESSINGER,
Acting Field
Office Director; MICHAEL KROL,
HIS
New England Special Agent in Charge;
TODD LYONS,
Acting Director U.S.
Immigration and Customs
Enforcement; and KRISTI NOEM,
U.S.
Secretary of Homeland Security,
Petitioners.
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No. 26-cv-014-JJM-PAS
ORDER
Last month, on January 7, 2026, Immigration and Customs Enforcement
(“ICE”) officers arrested and detained Fabricio Gil España, a citizen of El Salvador,
when 	he 	appeared 	for 	his 	asylum 	interview 	with 	the 	U.S. 	Citizenship 	and
Immigration Services (“USCIS”) in Boston, Massachusetts. 	ECF No. 1 at 9. 	Mr.
España was transferred to the Donald W. Wyatt Detention Facility in Central Falls,
Rhode Island, and he subsequently filed a petition for a writ of habeas corpus in which
he challenged the legality of his detention.
Id. at 10-13.
Finding his detention to be unlawful, the Court granted Mr. España’s petition
and ordered that the Government immediately release him from detention and
provide him with a bond hearing before an Immigration Judge (“IJ”).
See Text Order
(Jan. 16, 2026). Mr. España’s bond hearing was conducted on January 22, 2026, and
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the IJ denied his request for release on bond after finding that he presented a danger
to the community by clear and convincing evidence.
	See ECF No. 8 at 1. 	Notably,
ICE officials did not take Mr. España back into custody following the hearing.
	See
ECF No. 12 at 1-2. 	Nor does the record suggest that ICE placed any monitoring
devices or conditions of release on Mr. España.
Now pending before the Court is Mr. España’s Motion to Enforce the judgment
entered by this Court in his favor. ECF No. 11. He seeks relief that is prospective in
nature, that is, an order preventing ICE from re-detaining him in the future based
on the IJ’s bond denial. ECF No. 12 at 2-3; ECF No. 14 at 3.
The Court cannot grant Mr. España the relief he seeks. 	In order to grant a
habeas petition under 28 U.S.C. § 2241, a petitioner must be “
in custody in violation
of the Constitution or laws or treaties of the United States.” 	28 U.S.C. § 2241(c)(3)
(emphasis added). It is true that “custody” is not limited to physical imprisonment.
See Jones v. Cunningham, 371 U.S. 236, 239 (1963) (“[I]n the United States the use
of habeas corpus has not been restricted to situations in which the applicant is in
actual, physical custody.”). Indeed, in the immigrant context, courts have found the
“in custody” requirement to be met where, even though ICE has released the
noncitizen 	from 	detention, 	the 	agency 	has 	still 	subjected 	them 	to 	monitoring
measures or other conditions of release.1
	See, e.g.,
Orellana Juarez v. Moniz, 788 F.
1 Conditions of release can include but are not limited to: (1) requiring the
noncitizen to wear a GPS ankle monitor; (2) requiring the noncitizen to report for
regular check-ins with ICE; (3) allowing ICE to enter the noncitizen’s residence for
home 	visits; 	(4) 	imposing 	a 	curfew 	on 	the 	noncitizen; 	and 	(5) 	geographically
restricting where the noncitizen can travel.
	See Orellana Juarez v. Moniz, 788 F.
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Supp. 3d 61, 67-68 (D. Mass. 2025);
Hogarth v. Santacruz, No. 5:25-cv-09472-SPG-
MAR, 2025 WL 3211461, at *13 (C.D. Cal. Oct. 23, 2025);
Khabazha v. U.S. Immigr.
& Customs Enf’t, No. 25-cv-5279 (JMF), 2025 WL 3281514, at *3 (S.D.N.Y. Nov. 25,
2025);
A.B.D. v. Wamsley, No. 6:25-cv-02014-AA, 2026 WL 178306, at *8 (D. Or. Jan.
22, 2026).
In this case, ICE has released Mr. España from custody and has not—as far as
the Court is aware—imposed any monitoring measures or other conditions of release
on him. Should ICE take him back into custody or place any other restrictions on his
liberty, Mr. España is free to pursue appropriate relief in this Court. 	For now,
however, the Court is constrained in the relief it can grant Mr. España.
For these reasons, the Court will DENY Mr. Espana’s Motion to Enforce
without prejudice. ECF No. 11.
IT IS SO ORDERED.
s/John J. McConnell, Jr.
_________________________________
JOHN J. MCCONNELL, JR.
Chief Judge
United States District Court
February 23, 2026
Supp. 3d 61, 67-68 (D. Mass. 2025);
see also Ali v. Napolitano, No. 12-cv-11384, 2013
WL 3929788, at *4 (D. Mass. July 26, 2013).
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