Pereira v. Nessinger et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
GILBERTO JUNIO PEREIRA,
Petitioner,
v.
MICHAEL NESSINGER, Warden,
Donald W. Wyatt Detention Facility;
PATRICIA HYDE, Field Office
Director, ICE; TODD M. LYONS,
Acting Director of ICE; and KRISTI
NOEM, Secretary of Homeland
Security,
Respondents.
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C.A. No. 26-cv-109-MRD-PAS
ORDER
Before the Court is Petitioner Gilberto Junio Pereira’s Petition for Writ of
Habeas Corpus Pursuant to 28 U.S.C. § 2241. ECF No. 1. Petitioner claims that the
Respondents violated his due process rights and the Immigration and Nationality Act
when they detained him on or about February 10, 2026 as he is not the individual
listed on the Notice of Revocation of Release.
	Id. ¶¶ 13, 26, 28. 	The Government
responds that this is not a case of mistaken identity and that Petitioner’s re-detention
is justified by changed circumstances. ECF No. 7.
Petitioner claims the Notice of Revocation of Release lists a Gilberto Junio
Pereira Vicente, which he asserts is a different person with a different date of birth.
ECF No. 1 at 4 ¶¶ 14-16. The Notice lists the subject as having a 1988 birth year and
the passport Petitioner submitted in support of his Petition reflects Petitioner’s birth
year is 1991.
	Compare ECF No. 1-1 at 2
with ECF No. 1-3 at 3. 	The Government
does not address this discrepancy in its response to the Petition though the Court
notes that Exhibit 2 to the Government’s response (ECF No. 7-2) indicates that the
Alien number reflected in the other documents submitted by the parties in this case
is associated with both a Gilberto Junio Pereira-Vicente and a Gilberto Junio Pereira
and associated birth years of 1920, 1988, and 1991.
Regardless of whether this Petitioner was the intended target of the Notice,
the regulations governing revocation of a noncitizen’s release from detention pending
removal are clear about what ICE needs to do and show prior to effectuating the
revocation of release.
See 8 C.F.R. §§ 241.13(f), (i)(2);
Kong v. United States, 62 F.4th
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608, 619–20 (1st Cir. 2023);
see also Thai v. Hyde, 788 F. Supp. 3d 57, 61 (D. Mass.
2025). The Government’s response to the Petition does not demonstrate that ICE
followed or met the standard set out in § 241.13(i) when it detained Petitioner on
February 10. ECF No. 7 at 5-6. 	In addition, the Government has failed to provide
this Court with a travel document or any information relating to any request to obtain
travel documents for Petitioner. While the Notice of Revocation of Release indicates
that there are changed circumstances, it fails to include anything more than this
generalized statement. 	ECF No. 7-1 at 1. 	The lack of information and evidence
presented in response to the Petition is woefully insufficient to satisfy this Court that
ICE, on or before February 10, had made an individualized determination that there
was a change in circumstances for this Petitioner and that there was a “significant
likelihood that [Petitioner] may be removed in the reasonably foreseeable future.”
Kong, 62 F.4th at 620 (quoting § 241.13(i)(2)). This Court may not make this finding
in the first instance.
	Id. 	Therefore, the petition for writ of habeas corpus is
GRANTED. 	The Respondents shall release Petitioner TODAY, February 26, 2026.
The Court modifies its Order in ECF No. 5 only to allow Respondents to transfer
Petitioner to the ICE Field Office in Burlington, Massachusetts to effectuate his
release. Petitioner is expected to comply with the same conditions as those imposed
in the order of supervision under which Petitioner has been placed since his release
in 2019.
See ECF No. 1-3.
While Petitioner is on supervised release, there is nothing in this Order to
prevent Respondents from both confirming Petitioner’s identity and, if warranted,
requesting the Government of Brazil to accept Petitioner’s return and securing travel
documents to effectuate the same. 	If ICE secures a travel document for Petitioner,
then ICE may re-detain him for removal.
See Kong, 62 F.4th at 619–20.
IT IS SO ORDERED.
_________________________________
Melissa R. DuBose
United States District Judge
02/26/2026
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