Cos Castro v. Wesling et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
CATARINO COS CASTRO,
Petitioner,
v.
DAVID T. WESLING,
Field Office
Director of Enforcement and Removal
Operations, Boston Field Office,
Immigration and Customs
Enforcement; MARKWAYNE
MULLIN,
Secretary, U.S. Department
of Homeland Security; TODD
BLANCHE,
Acting U.S. Attorney
General; MICHAEL NESSINGER,
Warden of Wyatt Detention Facility;
and TODD LYONS,
Acting Director of
U.S. Immigration and Customs
Enforcement,
Respondents.
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No. 26-cv-274-JJM-PAS
MEMORANDUM AND ORDER
JOHN J. MCCONNELL, JR., United States District Court Chief Judge.
Catarino Cos Castro brings this habeas petition under 28 U.S.C. § 2241,
arguing that Immigration and Customs Enforcement (“ICE”) acted unlawfully when
the agency revoked his Order of Supervision (“OSUP” or “supervised release”) and re-
detained him at the Donald W. Wyatt Detention Facility in Central Falls, Rhode
Island. ECF No. 1. He seeks immediate release from ICE custody, as well as an order
restoring him to his prior OSUP.
Id. at 12. The Government opposes Mr. Cos Castro’s
petition, claiming that ICE properly revoked his OSUP. ECF No. 5. For the reasons
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that 	follow, 	the 	Court 	GRANTS 	Mr. 	Cos 	Castro’s 	petition 	and 	ORDERS 	his
immediate release, subject to the conditions of his preexisting OSUP.
I. 	BACKGROUND
Mr. Cos Castro is a citizen of Guatemala. ECF No. 1 at 2. He first arrived in
the United States in 2010, but he was apprehended at the southern border by
immigration authorities, detained for about a week, and then put in expedited
removal proceedings. 1
	Id. at 5. 	He was removed from the United States on
September 27, 2010. ECF No. 5-1 at 2.
Mr. Cos Castro then returned to the United States on or about April 25, 2019,
at which point he was detained again. 	ECF No. 1 at 5; ECF No. 5-1 at 2. 	Officials
from the Department of Homeland Security (“DHS”) issued Mr. Cos Castro a Notice
of Intent/Decision to Reinstate Prior Order, which reinstated his 2010 Expedited
Removal Order.
	See ECF No. 5-1 at 2. However, on April 27, 2019, Mr. Cos Castro
was released from custody on an Order of Supervision.
Id. at 3.
Mr. Cos Castro remained on supervised release for the next seven years. ECF
No. 1 at 5. 	During that time, Mr. Cos Castro complied with all of the conditions of
his release and attended regular check-ins with ICE.
Id.
1 Noncitizens who, within fourteen days of arriving in the United States, are
encountered by immigration officials within 100 air miles of a land border are subject
to expedited removal.
	See Carvalho de Andrade v. Nessinger, No. 26-cv-183-JJM-
AEM, 2026 WL 925648, at *3 (D.R.I. Apr. 6, 2026). This means that they are “ordered
removed ‘without further hearing or review.’”
Jennings v. Rodriguez, 583 U.S. 281,
287 (2018) (quoting 8 U.S.C. § 1225(b)(1)(A)(i)).
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Then, on April 28, 2026, Mr. Cos Castro appeared for a check-in at ICE’s
Boston Field Office in Burlington, Massachusetts.
	Id. at 1. 	During that check-in,
ICE officers informed Mr. Cos Castro that his supervised release had been revoked,
and they took him into custody.
Id. at 5. He was later transferred to the Donald W.
Wyatt Detention Facility in Central Falls Rhode Island, where he currently remains
detained.
Id. at 1.
Mr. Cos Castro filed the instant petition on May 4, 2026.
Id. He requests that
the Court order his immediate release on the grounds that ICE failed to comply with
its own regulations and violated his due process rights in the process of revoking his
supervised release.
	Id. at 10-12. 	The Government objects to Mr. Cos Castro’s
petition, arguing that his supervised release was properly revoked. ECF No. 5 at 4-
8.
II. 	DISCUSSION
As noted, Mr. Cos Castro is subject to a reinstated order of removal.
See ECF
No. 5-1 at 2 (displaying Mr. Cos Castro’s “Notice of Intent/Decision to Reinstate Prior
Order”). 	Under 8 U.S.C. § 1231(a), “Congress has created an ‘expedited removal
process’ for noncitizens who reenter the United States unlawfully after having
previously 	been 	removed.”
G.P. 	v. 	Garland, 	103 	F.4th 	898, 	900 	(1st 	Cir.
2024) (citing
Johnson v. Guzman Chavez, 594 U.S. 523, 529-30 (2021). This provision
of the Immigration and Nationality Act (“INA”) authorizes DHS to reinstate a prior
order of removal against a noncitizen who has been found to have reentered the
United States without authorization after having previously been removed pursuant
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to a removal order.
	See 8 U.S.C. § 1231(a)(5);
see also Cruz v. Bondi, No. 25-cv-262-
JJM-PAS, 2025 WL 3295485, at *1 (D.R.I. Nov. 26, 2025). Once the prior order has
been reinstated, DHS must remove the noncitizen within a 90-day “removal period.”2
Guzman Chavez, 594 U.S. at 528 (citing 8 U.S.C. § 1231(a)(1)(A)).
Generally, if the noncitizen is not removed during the 90-day removal period,
then they “shall” be released “subject to supervision under regulations prescribed by
the [DHS Secretary].”3 	8 U.S.C. § 1231(a)(3). 	There are two regulations, 8 C.F.R
§ 241.4(
l) and 8 C.F.R. § 241.13(i), that “govern ICE’s decision to revoke supervised
release once it has been issued.”
Bulle v. Wesling, No. 26-cv-019-JJM-AEM, 2026 WL
183840, at *1 (D.R.I. Jan. 23, 2026).
The Government contends that ICE followed the procedures set forth in 8
C.F.R § 241.4(
l) when the agency revoked Mr. Cos Castro’s supervised release.
	See
ECF No. 5 at 6. However, this regulation “appl[ies] only where release was based on
a determination ‘that the [noncitizen] would not pose a danger to the public or a risk
of flight' rather than ‘the likelihood of the [noncitizen’s] removal in the reasonably
foreseeable future.’”
	Phommachak v. Wesling, 816 F. Supp. 3d 201, 213 (D. Mass.
2026) (quoting 8 C.F.R. § 241.13(b)(1)).
2 Noncitizens are typically subject to mandatory detention during the 90-day
removal period.
	See Guzman Chavez, 594 U.S. at 528 (citing 8 U.S.C. § 1231(a)(2)).
In this case, it is not clear why DHS chose to release Mr. Cos Castro from detention
on April 27, 2019, which is the same day he was issued his reinstated order of
removal.
See ECF No. 5-1 at 2-3.
3 Though the statute refers to the “regulations prescribed by the Attorney
General,” this authority now belongs to the DHS Secretary.
	See Dep’t of Homeland
Sec. v. Thuraissigiam, 591 U.S. 103, 109 n.3 (2020) (explaining that 6 U.S.C. § 251(2)
transferred the authority over “[t]he detention and removal program” to DHS).
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It is unclear from the record whether Mr. Cos Castro’s release on an OSUP was
based on a determination that he would not pose a flight or danger risk, or if it was
instead based on his removal being unlikely to occur in the reasonably foreseeable
future.4 	In any event, this Court has previously held that 8 C.F.R. § 241.13(i)
specifically applies to those noncitizens who have been re-detained by ICE “after they
have been ‘issued a final order of removal, detained, and subsequently released on an
OSUP.’”
	Bulle, 2026 WL 183840, at *1 (quoting
Nguyen v. Hyde, 788 F. Supp. 3d
144, 149 (D. Mass. 2025));
see also Deng v. Nessinger, No. 26-cv-113-JJM-AEM, 2026
WL 643198, at *3 (D.R.I. Mar. 9, 2026). The Court assumes that 8 C.F.R. § 241.13(i)
also applies to Mr. Cos Castro as a noncitizen who has been issued a reinstated order
of removal.
	See Lattab v. Ashcroft, 384 F.3d 8, 14 (1st Cir. 2004) (“[A]n order
reinstating a prior removal order is ‘the functional equivalent of a final order of
removal.’” (quoting
Arevalo v. Ashcroft, 344 F.3d 1, 9 (1st Cir. 2003))).
8 C.F.R. § 241.13 provides that ICE may revoke a noncitizen’s supervised
release if “on account of changed circumstances, [ICE] determines that there is a
significant likelihood that the [noncitizen] may be removed in the reasonably
foreseeable future.” 8 C.F.R. § 241.13(i)(2).5 The First Circuit has provided ICE with
4 Neither of the parties have submitted the OSUP itself. 	It looks something
like this.
	See Dep’t of Homeland Sec., U.S. Immigr. & Customs Enf’t, Order of
Supervision, 	https://www.ice.gov/doclib/detention/checkin/I_220B_OSUP.pdf
[https://perma.cc/BFX6-QHW8] (last visited May 8, 2026).
5 Another regulation permits ICE to revoke a noncitizen's supervised release if
he “violates any of the conditions of release.” 	8 C.F.R. § 241.13(i)(1). 	However, the
Government does not contend that Mr. Cos Castro violated any of the conditions of
his release. Indeed, Mr. Cos Castro was brought into custody as he was fulfilling one
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four key elements that it must meet in order to re-detain a noncitizen, like Mr. Cos
Castro, pursuant to this regulation: “(1) an individualized determination (2) by ICE
that, (3) based on changed circumstances, (4) removal has become significantly likely
in the reasonably foreseeable future.”
	Kong v. United States, 62 F.4th 608, 619-20
(1st Cir. 2023) (citing 8 C.F.R. § 241.13(i)(2)).
A reviewing court, such as this one, is not permitted to make the individualized
finding in the first instance; rather, it must review the finding “in light of the
regulations instructing ICE on how it should make such a determination.”
Id. at 620
(citing 8 C.F.R. §§ 241.13(f), (i)(2)). 	The burden is on the Government to show that
the noncitizen’s removal is significantly likely to occur in the reasonably foreseeable
future.
See Hall v. Nessinger, No. 25-cv-667-JJM-PAS, 2026 WL 18583, at *7 (D.R.I.
Jan. 2, 2026) (collecting cases).
It is clear from the facts of this case that ICE has failed to meet this burden.
In its Notice of Revocation of Release, the only justification that ICE gave for revoking
Mr. Cos Castro’s supervised release was that: “It is appropriate to enforce the removal
order entered against [Mr. Cos Castro] as ICE has the ability and means to effectuate
[Mr. Cos Castro’s] removal.” 	ECF No. 5-1 at 3. 	One would assume that, once ICE
has promised that it “has the ability and the means to effectuate” a noncitizen’s
removal from the United States, that it would be ready to do just that and that it
would be capable of assuring a reviewing court that its process is complete.
of the conditions of his release, which was appearing for a check-in with ICE.
	See
ECF No. 1 at 1.
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But in the very next line of its Notice, ICE concedes that it “is seeking a travel
document to effect [Mr. Cos Castro’s] expeditious removal to Guatemala.”
	Id. That
ICE is still seeking6 this document but has not actually obtained it is ultimately fatal
to the Government’s case.
For one thing, this fails to show the Court that Mr. Cos Castro’s “removal has
become significantly likely in the reasonably foreseeable future.”
	Kong, 62 F.4th
at 619-20. The Government has given the Court absolutely nothing by which to gauge
how long the travel-document process will take and, consequently, how long Mr. Cos
Castro will have to sit in an ICE detention facility while he waits for that travel
document to arrive.
See, e.g.,
Deng, 2026 WL 643198, at *4;
Nguyen v. Lyons, No. 25-
cv-631-MSM-PAS, 2026 WL 125093, at *4 (D.R.I. Jan. 16, 2026) (“The Respondents
have presented nothing from which this Court can even begin to estimate the length
6 Over the past few months, much ink has been spilled by the federal courts of
appeals 	over 	the 	precise 	definition 	of 	the 	word 	“seeking,” 	particularly 	in 	the
immigration context.
See, e.g.,
Buenrostro-Mendez v. Bondi, 166 F.4th 494, 502 (5th
Cir. 2026);
Avila v. Bondi, 170 F.4th 1128, 1134 (8th Cir. 2026);
Cunha v. Freden,
No. 25-3141-pr, --- F.4th ----, 2026 WL 1146044, at *6 (2d Cir. Apr. 28, 2026);
Castañon-Nava v. U.S. Dep’t of Homeland Sec., No. 25-3050, --- F.4th ----, 2026 WL
1223250, at *11-12 (7th Cir. May 5, 2026);
Hernandez Alvarez v. Fed. Det. Ctr. Mia.,
Nos. 25-14065, 25-14075, --- F.4th ----, 2026 WL 1243395, at *7 (11th Cir. May 6,
2026). 	However, at least three of those courts agree that the word “seeking” is a
present participle that implies that the person doing the seeking is actively engaged
in that activity.
	Cunha, 2026 WL 1146044, at *6 (explaining that “seeking” is the
present participle form of “seek,” which means,
inter alia, “to try to acquire or gain;
aim at” or “to make an attempt”);
Castañon-Nava, 2026 WL 1223250, at *11-12
(defining “seeking” as the present participle form of “seek,” which means,
inter alia,
“to make an attempt,” “to try to obtain,” or “to make an inquiry”);
Hernandez Alvarez,
2026 WL 1243395, at *7 (defining “seeking” as the present participle form of “seek,”
which “underscores that it is describing some active and temporally ongoing step or
process”).
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of time the document processing may take.”);
Hoac v. Becerra, No. 2:25-cv-01740-DC-
JDP, 2025 WL 1993771, at *4 (E.D. Cal. July 16, 2025) (“Respondents’ intent to
eventually complete a travel document request for Petitioner does not constitute a
changed circumstance.”).
That Mr. Cos Castro’s removal remains a work in progress also falls woefully
short of constituting “changed circumstances” so as to justify the revocation of his
supervised 	release 	and 	subsequent 	re-detention.
	Kong, 	62 	F.4th 	at 619-20.
“Preparing to change circumstances is different from ‘changed circumstances.’”
Nguyen, 2026 WL 125093, at *4;
see also Bulle, 2026 WL 183840, at *8 (finding the
Government’s assertion that it is “actively working to obtain travel papers” for a
noncitizen’s removal to a third country to be insufficient to justify his re-detention);
Lu v. Joyce, No. 2:26-cv-00041-SDN, 2026 WL 352447, at *3 (D. Me. Feb. 9, 2026)
(finding 	insufficient the 	Government’s 	assertion 	that 	a 	noncitizen’s 	“document
request is pending with the Chinese government” so as to constitute “changed
circumstances”);
Aguilar v. Noem, No. 25-cv-03463-NYW, 2025 WL 3514282, at *6 (D.
Colo. Dec. 8, 2025) (rejecting the Government’s claim of “changed circumstances” on
the mere basis that ICE is “pursuing third country removal options”).
As such, the Court finds that ICE has failed to comply with 8 C.F.R.
§ 241.13(i)(2). 	The agency cannot point to any changed circumstances in Mr. Cos
Castro’s case, and it has not established that his removal is significantly likely to
occur in the reasonably foreseeable future.
See Kong, 62 F.4th at 619-20.
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The Court therefore finds ICE’s revocation of Mr. Cos Castro’s supervised
release and his subsequent re-detention to be unlawful. 	Mr. Cos Castro shall be
immediately released from custody, subject to the conditions of his preexisting Order
of Supervision.
	See Nguyen, 788 F. Supp. 3d at 153 (ordering similar relief);
Hall,
2026 WL 18583, at *9 (same);
Bulle, 2026 WL 183840, at *9 (same);
Deng, 2026 WL
643198, at *5 (same).
III. 	CONCLUSION
For these reasons, the Court GRANTS Mr. Cos Castro’s habeas petition. ECF
No. 1. 	The 	Government 	is 	hereby 	ORDERED 	to release 	Catarino 	Cos 	Castro
immediately, and he shall be subject to the conditions of his preexisting Order of
Supervision.
Per its request, the Government is permitted to transfer Mr. Cos Castro 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. 5 at 8 n.33.
The Government also asks the Court to permit it to place “any monitoring equipment
deemed appropriate.”
	Id. Because Mr. Cos Castro is subject to the conditions of his
preexisting OSUP, and there is no indication that monitoring equipment was placed
on him as part of that preexisting OSUP, this part of the Government’s request is
DENIED. Effectuating Mr. Cos Castro’s transfer to Burlington shall not in any way
impede his immediate release.
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IT IS SO ORDERED.
s/John J. McConnell, Jr.
_________________________________
JOHN J. MCCONNELL, JR.
Chief Judge
United States District Court
May 8, 2026
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