Carvalho de Andrade v. Nessinger et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
RODRIGO CARVALHO DE
ANDRADE,
Petitioner,
v.
MICHAEL NESSINGER,
Warden of
Wyatt Detention Facility; DAVID T.
WESLING,
Boston Acting Field Office
Director, U.S. Immigration and
Customs Enforcement; TODD LYONS,
Acting Director, U.S. Immigration and
Customs Enforcement; and
MARKWAYNE MULLIN,
U.S.
Secretary of Homeland Security,
Respondents.
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No. 26-cv-183-JJM-AEM
MEMORANDUM AND ORDER
JOHN J. MCCONNELL, JR., United States District Court Chief Judge.
Rodrigo Carvalho de Andrade is currently in the custody of Immigration and
Customs Enforcement (“ICE”) at the Donald W. Wyatt Detention Facility in Central
Falls, Rhode Island. 	ECF No. 1. 	He brings this habeas petition under 28 U.S.C.
§ 2241, challenging his detention as unlawful and seeking immediate release from
ICE custody as well as a bond hearing before an immigration judge (“IJ”) pursuant
to 8 U.S.C. § 1226(a).
Id. at 13.
This type of petition is not uncommon these days. Like countless others, Mr.
Carvalho challenges ICE’s policy of subjecting thousands of noncitizens—even those
who have no criminal records and who have been living in the United States for years
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and 	decades—to 	mandatory 	detention 	under 	8 	U.S.C. 	§ 1225(b) 	without 	the
opportunity to seek release on bond. 	The overwhelming majority of courts—this
Court included—have found this policy to be unlawful.
	See, e.g.,
Barco Mercado v.
Francis, 811 F. Supp. 3d 487, 494 (S.D.N.Y. 2025) (explaining that similarly situated
petitioners “have prevailed, either on a preliminary or final basis, in 350 [out of 362]
cases decided by over 160 different judges sitting in about fifty different courts spread
across the United States”);
Morales v. Hyde, No. 26-cv-093-JJM-PAS, 2026 WL
508811, at *1 (D.R.I. Feb. 24, 2026) (collecting dozens of similar habeas cases from
the District of Rhode Island).1
Nevertheless, the Government returns again and again to this Court and,
much like Sisyphus, continues to push the boulder of its argument uphill with the
hope that the Court will eventually side with ICE’s position.2 	As before, this Court
declines to do so. Accordingly, for the reasons stated below, the Court GRANTS Mr.
Carvalho’s petition and ORDERS his immediate release.
1 The Court is aware of the Eighth and Fifth Circuit decisions that are to the
contrary.
	See Avila v. Bondi, No. 25-3248, --- F.4th ----, 2026 WL 819258 (8th Cir.
Mar. 25, 2026);
Buenrostro-Mendez v. Bondi, 166 F.4th 494 (5th Cir. 2026). However,
those decisions are not binding on this Court, and the Court does not find their
reasoning to be persuasive. The Court is instead persuaded by the Seventh Circuit’s
position on the issue.
	See Castanon-Nava v. U.S. Dep’t of Homeland Sec., 161 F.4th
1048, 1060-62 (7th Cir. 2025) (concluding that the Government was unlikely to
succeed on the merits of its argument that 8 U.S.C. § 1225(b) permits the mandatory
detention of any noncitizen who is unlawfully already in the United States).
2 In Greek mythology, Sisyphus is condemned to eternally roll a boulder up a
steep hill, only to have it roll down each time he reaches the top of the hill.
See Rios
Porras v. O’Neill, 	No. 25-6801, 2025 WL 3708900, at *2 (E.D. Pa. Dec. 22, 2025)
(Beetlestone, C.J.) (equating the Government’s unwavering position on mandatory
detention to Sisyphus having to continuously roll his boulder uphill) (citing Albert
Camus,
The Myth of Sisyphus (1942)).
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I. 	BACKGROUND
Mr. Carvalho is a citizen of Brazil. ECF No. 1 at 1. According to his petition,
he 	fled 	his 	home 	country 	“following 	threats 	against 	him 	for 	resisting 	gang
recruitment and multiple incidents of violent victimization by criminals.”
Id.
Mr. Carvalho entered the United States without inspection on or about
March 4, 2021.
	Id. at 2. 	U.S. Border Patrol (“USBP”) officers apprehended Mr.
Carvalho at the border and arrested him shortly thereafter.
Id.;
see also ECF No. 7-
1 at 3. 	He was later processed for expedited removal. 	ECF No. 7-1 at 3. 	Mr.
Carvalho, however, expressed a fear of returning to Brazil.
Id.
On or about March 10, 2021, ICE released Mr. Carvalho from detention on an
Order of Release on Recognizance.3 	ECF No. 1-4 at 1 (displaying ICE’s order). 	He
was placed in an Alternatives to Detention (“ATD”) program, which included regular
check-ins with ICE. 	ECF No. 1 at 9. 	Shortly after his release, Mr. Carvalho filed a
timely application for asylum and withholding of removal, 4 which remains pending
at this time.
See ECF No. 1-3 at 1. Mr. Carvalho now resides in Massachusetts with
his partner and their three-year-old son, who is a U.S. citizen. ECF No. 1 at 9.
3 This is also referred to as a Form I-220A. 	ECF No. 1-4 at 1-3;
see U.S.
Immigration and Customs Enforcement, Dep’t of Homeland Sec., Order of Release on
Recognizance, 	https://www.ice.gov/doclib/detention/checkin/I_220A_OREC.pdf
[https://perma.cc/SW7M-ZRLT] (last visited Apr. 6, 2026) (displaying Sample Form I-
220A). 4 A noncitizen seeking to apply for asylum must typically submit their asylum
application within one year of arriving in the United States. 8 U.S.C. § 1158(a)(2)(B)).
Here, there is no dispute that Mr. Carvalho filed his application within one year of
his arrival. Specifically, he arrived in the United States on or about March 4, 2021,
and U.S. Citizenship and Immigration Services (“USCIS”) notified him that it had
received his asylum application on November 19, 2021.
See ECF No. 1-3 at 1.
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On March 25, 2026, more than five years after he was released from ICE
custody, Mr. Carvalho reported for his scheduled check-in with ICE at the agency’s
Boston Field Office in Burlington, Massachusetts.
Id. at 1. During this appointment,
ICE officers arrested and re-detained him.
Id. Mr. Carvalho was later transferred to
the Donald W. Wyatt Detention Facility in Central Falls, Rhode Island, where he
currently remains detained.
Id. at 2.
Mr. Carvalho filed the present petition on March 30, 2025, seeking release
from ICE custody or, in the alternative, a bond hearing. 	ECF No. 1 at 13. 	The
Government opposes the petition and argues that it should be denied. 	ECF No. 7
at 1-2.
II. 	DISCUSSION
The Government’s power to detain a noncitizen must be grounded in a specific
provision of the Immigration and Nationality Act (“INA”).
Gonzalez Lopez v. Wesling,
No. 26-cv-047-JJM-AEM, --- F. Supp. 3d ----, 2026 WL 309607, at *1 (D.R.I. Feb. 5,
2026);
Hechavarria v. Sessions, 891 F.3d 49, 54 (2d Cir. 2018). The question in this
case then is the following: Which provision governs Mr. Carvalho’s detention?
A. 	Legal Framework
1. 	Detention Authority Under Section 1225
8 	U.S.C. 	§ 1225 	of 	the 	INA 	(“Section 	1225”) 	applies 	to 	“applicants 	for
admission” who are generally encountered “at the Nation’s borders and ports of
entry.”
Jennings v. Rodriguez, 583 U.S. 281, 287 (2018). An “applicant for admission”
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is defined as a noncitizen “who ‘arrives in the United States,’ or ‘is present’ in this
country but ‘has not been admitted.’”
Id. (quoting 8 U.S.C. § 1225(a)(1)).
The Supreme Court has recognized two types of applicants for admission:
“those covered by § 1225(b)(1) and those covered by § 1225(b)(2).”
	Id. 	As relevant
here, noncitizens covered by Section 1225(b)(1) are normally subject to expedited
removal proceedings, meaning they are “ordered removed ‘without further hearing or
review.’”
Id. (quoting 8 U.S.C. § 1225(b)(1)(A)(i)).
Section 1225(b)(1) primarily applies to those noncitizens who are deemed
“inadmissible due to fraud, misrepresentation, or lack of valid documentation.”
	Id.
(citing 8 U.S.C. § 1225(b)(1)(A)(i) (citing 8 U.S.C. §§ 1182(a)(6)(C), (a)(7)). 	It also
applies to certain other noncitizens designated by the Secretary of the Department of
Homeland Security (“DHS”) in her discretion.5
	Id.;
see also Dep’t of Homeland Sec.
v. Thuraissigiam, 591 U.S. 103, 109 (2020). One such designation extended expedited
removal to “persons who, within fourteen days of arriving in the United States, are
encountered within 100 air miles of a land border.”
	Make the Road N.Y. v. Noem,
No. 25-5320, 2025 WL 3563313, at *2 (D.C. Cir. Nov. 22, 2025) (per curiam);
see
Designating Aliens for Expedited Removal, 69 Fed. Reg. 48877, 48879 (Aug. 11,
2004)). By contrast, Section 1225(b)(2) “serves as a catchall provision that applies to
5 Though the statute refers to the “discretion of the Attorney General,” this
authority now belongs to the DHS Secretary.
	Thuraissigiam, 591 U.S. at 109 n.3
(explaining that 6 U.S.C. § 251(2) transferred the authority over “[t]he detention and
removal program” to DHS).
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all applicants for admission not covered by § 1225(b)(1).”
	Jennings, 583 U.S. at 287
(citing 8 U.S.C. §§ 1225(b)(2)(A), (B)).
Both Section 1225(b)(1) and Section 1225(b)(2) authorize the detention of
certain applicants for admission.
	Id. 	Detention under these statutory provisions is
mandatory,
id. at 299, 302, and they do not guarantee any right to a bond hearing.
Id. at 297 (“[N]either § 1225(b)(1) nor § 1225(b)(2) says anything whatsoever about
bond hearings.”). 	However, this detention authority is limited in scope and applies
specifically 	to 	those 	noncitizens 	“
seeking 	admission 	into 	the 	country 	under
§§ 1225(b)(1) and (b)(2).”
	Id. at 289 (emphasis added). 	In addition, despite its
mandatory detention provisions, Section 1225(b) provides a narrow exception by
which an applicant for admission “may be temporarily released on parole ‘for urgent
humanitarian reasons or significant public benefit.’”
	Id. at 288 (quoting 8 U.S.C.
§ 1182(d)(5)(A));
see also 8 C.F.R §§ 212.5(b), 235.3.
2. 	Detention Authority Under Section 1226
A separate provision of the INA, 8 U.S.C. § 1226 (“Section 1226”), authorizes
the Government “to detain certain [noncitizens]
already in the country pending the
outcome of removal proceedings . . . .”
	Jennings, 583 U.S. at 289 (emphasis added).
This provision is often referred to as the “discretionary detention provision” because
it permits—but does not require—the Government to arrest and detain a noncitizen
“[o]n a warrant issued by the [DHS Secretary] 6 . . . pending a decision on whether the
6 Again, the Attorney General is substituted for the DHS Secretary.
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[noncitizen] is to be removed from the United States.” 	8 U.S.C. § 1226(a);
see
Hernandez-Lara v. Lyons, 10 F.4th 19, 26 (1st Cir. 2021).7
Noncitizens detained under Section 1226(a) may be released on bond or
conditional parole. 	8 U.S.C. § 1226(a)(2). 	Indeed, Section 1226(a) detainees have a
due process right to request a bond hearing at the outset of their detention at which
the burden is on the Government to prove that their detention must continue either
because they pose a danger to the community by clear and convincing evidence or
because they pose a flight risk by a preponderance of the evidence.
Hernandez-Lara
v. Lyons, 10 F.4th 19, 41 (1st Cir. 2021);
see also Jennings, 583 U.S. at 306 (citing 8
C.F.R. §§ 236.1(d)(1), 1236.1(d)(1)).
B. 	Mr. Carvalho’s Detention
Here, the Government asserts that Mr. Carvalho is subject to mandatory
detention under Section 1225(b)(1) and is not entitled to a bond hearing. ECF No. 7
at 1-2. 	This is in spite of the fact that Mr. Carvalho has been peacefully living and
working in the United States since ICE released him from detention five years.
According to the Government, the Court should pay no mind to the circumstances
surrounding Mr. Carvalho’s Order of Release on Recognizance, and its attention
should instead be on whether he remains an “applicant for admission.” 	ECF No. 7
at 4 (“The statutory scheme instead turns on the individual’s status as an applicant
7 There is another provision within Section 1226, 8 U.S.C. § 1226(c), that
mandates the detention of noncitizens who have been convicted of specified crimes.
Hernandez-Lara, 10 F.4th at 35. However, this provision is not at issue here because
Mr. Carvalho has not been convicted of a crime.
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for admission—not on whether DHS temporarily released him.”). This position is not
well taken—the Court cannot simply focus on one while ignoring the other. In fact,
the Order of Release on Recognizance provides critical insight into whether ICE has
the authority to re-detain Mr. Carvalho at all.
As a preliminary matter, there is no dispute that Mr. Carvalho entered the
country without inspection on or about March 4, 2021. ECF No. 1 at 2; ECF No. 7-1
at 2. 	He was arrested and detained by USBP officers shortly after his entry and,
pursuant to the DHS Secretary’s designation, Mr. Carvalho was deemed “amenable
to expedited removal . . . because he was apprehended within fourteen days of his
illegal entry into the United States and within one hundred air miles of a United
States land border.” 	ECF No. 7-1 at 3;
see Make the Road N.Y., 2025 WL 3563313,
at *2. Thus, at the time of his entry, Mr. Carvalho’s status was that of an applicant
for admission who was lawfully held by ICE under Section 1225(b)(1).
Jennings, 583
U.S. at 287.
On or about March 10, 2021, Mr. Carvalho’s circumstances changed. 	He was
released by ICE on an Order of Release on Recognizance. 	This was done “[i]n
accordance with section 236 [Section 1226] . . . provided [he] complied with [specified]
conditions.” ECF No. 1-4 at 1. The Government submits that Mr. Carvalho’s “release
on recognizance is properly understood as analogous to parole.” ECF No. 7 at 4. But
recall that there are two different types of parole, each contained within a distinct
INA statutory provision.
	De Andrade v. Moniz, 802 F. Supp. 3d 325, 330 (D. Mass.
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2025) (“Notably, conditional parole under § 1226(a) is distinct from ‘humanitarian’ or
‘significant public benefit’ parole into the United States under § 1182(d)(5)(A).”).
Conditional parole under Section 1226(a) “‘releases a non-citizen already in the
country from domestic detention’ pending the normal removal process.”
Id. at 330-31
(quoting
Martinez v. Hyde, 792 F. Supp. 3d 211, 215 (D. Mass. 2025)). By contrast,
humanitarian or significant public health parole—which is the limited exception to
Section 	1225(b)’s 	mandatory 	detention 	provision—“‘permits 	a 	non-citizen 	to
physically enter the country, subject to a reservation of rights by the Government
that it may continue to treat the non-citizen’ as an applicant for admission in
expedited removal proceedings.”
Id. at 331 (quoting
Martinez, 792 F. Supp. 3d at 215
(citing 8 U.S.C. § 1182(d)(5)(A))).
Importantly, Mr. Carvalho’s Order of Release on Recognizance expressly
references Section 1226(a), not Section 1225(b).
See ECF No. 1-4 at 1 (“In accordance
with section 236 [Section 1226] . . . you are being released on your own recognizance
provided you comply with [specified] conditions.”). 	His order then is properly
understood as a grant of conditional parole, not a grant of humanitarian parole or
significant public health parole.
	See Ortega-Cervantes v. Gonzales, 501 F.3d 1111,
1115 (9th Cir. 2007) (“It is apparent that the INS 8 used the phrase ‘release on
recognizance’ as another name for ‘conditional parole’ under § 1226(a).”). 	“This
8 “INS” refers to the Immigration and Naturalization Service, which previously
exercised immigration-related authority until Congress abolished it and transferred
its authority to DHS.
	See Homeland Security Act of 2002, Pub. L. No. 107-296, 116
Stat. 2135, 2205 (2002).
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distinction reflects more than an officer’s choice of paperwork . . . .”
Martinez, 792 F.
Supp. 3d at 215.
As other courts within this circuit have recognized, “[b]y releasing petitioner
under conditional parole, the government failed to reserve its right to treat petitioner
‘in the same manner as that of any other applicant for admission to the United
States.’”
	De Andrade, 802 F. Supp. 3d at 332 (quoting 8 U.S.C. § 1182(d)(5)(A));
see
also Loja v. FCI Berlin, Warden, 808 F. Supp. 3d 227, 229-30 (D.N.H. 2025) (same).
“Congress provided a mechanism for paroling applicants for admission into the
United States without changing their status.”
	De Andrade, 802 F. Supp. 3d at 332
(citing 8 U.S.C. § 1182(d)(5)(A)). “The government elected not to use that mechanism.
It cannot now turn back the clock, and neither can the Court.”
Id. at 332-33.
So too here. As of 2021, Mr. Carvalho has been granted conditional parole into
the United States. This act has “extinguished the legal fiction” that he is physically
present in the country without having effected an entry.
	De Andrade, 802 F. Supp.
3d at 332. 	Contrary to what the Government says, now that he has entered, Mr.
Carvalho can no longer be treated as an “applicant for admission” subject to expedited
removal and mandatory detention under Section 1225(b)(1).
	Id. 	Instead, he “must
be treated like any other unlawfully ‘present’ non-citizen—and the lawfulness of his
detention is governed by 8 U.S.C. § 1226.”
Id.
Because Mr. Carvalho cannot be detained under Section 1225(b)(1), and the
Government has not established an alternative authority for detention, the Court
concludes that his detention is governed by Section 1226(a). 	As such, Mr. Carvalho
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has a constitutional right to a bond hearing before an IJ where the Government bears
the burden of proving either: (1) “by clear and convincing evidence that [he] poses a
danger to the community” or (2) “by a preponderance of the evidence that [he] poses
a flight risk.”
Hernandez-Lara, 10 F.4th at 41.
This Court has ordered the immediate release of individuals who have been
detained subject to Section 1226(a) while they await their bond hearings.
	Gonzalez
Lopez, 2026 WL 309607, at *7 (collecting cases). 	Given that he too is subject to
Section 	1226(a), 	the 	Court 	finds 	that 	Mr. 	Carvalho’s 	immediate 	release 	is
appropriate.
III. 	CONCLUSION
For the reasons stated, the Court GRANTS Mr. Carvalho’s habeas petition.
ECF No. 1. 	The Government is hereby ORDERED to provide Rodrigo Carvalho de
Andrade with a bond hearing before an IJ under 8 U.S.C. § 1226(a) within ten (10)
days of the date of this order. 	Should it choose to pursue Mr. Carvalho’s continued
detention, the Government must show why less restrictive alternatives to detention
would be inadequate for it to achieve its goals.
	See Higiro v. Nessinger, No. 26-cv-
105-JJM-AEM, 2026 WL 710297, at *8 (D.R.I. Mar. 13, 2026) (finding that due
process requires IJs to consider alternatives to detention at bond hearings to ensure
that detention is not arbitrarily imposed and bears a reasonable relation to the
Government’s interests). 	The IJ shall consider any alternatives to detention before
making a finding as to flight risk or dangerousness.
	See Brito v. Garland, 22 F.4th
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240, 254 (1st Cir. 2021) (noting that to require otherwise would be “to put the cart
before the horse”).
The Government is also ORDERED to release Rodrigo Carvalho de Andrade
immediately pending the bond hearing. Per its request, the Government is permitted
to transfer Mr. Carvalho to ICE’s Boston Field Office in Burlington, Massachusetts
for the sole purpose of processing his release and allowing for any return of property.
ECF No. 7 at 1 n.1. 	However, the Court DENIES the Government’s additional
request to place “any monitoring equipment deemed appropriate.”
	Id. 	Because the
Government did not have the lawful authority to detain Mr. Carvalho in the first
place, the Court will not permit the Government to keep him “in custody” through the
use of monitoring equipment pending the bond hearing.
	See Morales, 2026 WL
508811, at *3-4 (denying similar request from the Government because “[i]t does not
follow … that ICE gets to keep [the petitioner] ‘in custody’ once he leaves the Wyatt
Detention Facility”). Effectuating Mr. Carvalho’s transfer to Burlington shall not in
any way impede his immediate release.
Finally, the Court ORDERS the Government to file a status report within five
(5) days of Mr. Carvalho’s bond hearing, stating whether he has been granted bond.
If Mr. Carvalho’s request for bond is denied, the Government shall state the reason
for that denial and whether Mr. Carvalho has been re-detained by ICE.
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IT IS SO ORDERED.
s/John J. McConnell, Jr.
_________________________________
JOHN J. MCCONNELL, JR.
Chief Judge
United States District Court
April 6, 2026
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