Espana v. Nessinger et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
FABRICIO GIL ESPAÑA,
Petitioner,
v.
MICHAEL NESSINGER,
Warden,
Wyatt Detention Facility; DAVID
WESLING,
Acting Field Office
Director; MICHAEL KROL,
HSI New
England Special Agent in Charge;
TODD LYONS,
Acting Director U.S.
Immigration and Customs
Enforcement; and MARKWAYNE
MULLIN, 1
U.S. Secretary of Homeland
Security,
Respondents.
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No. 26-cv-014-JJM-PAS
MEMORANDUM AND ORDER
JOHN J. MCCONNELL, JR., United States District Court Chief Judge.
Fabricio Gil España is an asylum-seeker from El Salvador who arrived in the
United States in 2014. ECF No. 1 at 1. Earlier this year, Immigration and Customs
Enforcement (“ICE”) officers took Mr. España into custody when he appeared for his
asylum interview with U.S. Citizenship and Immigration Services (“USCIS”).
	Id.
at 1-2. While in custody, Mr. España filed a habeas petition, which this Court later
granted.
See Text Order (Jan. 16, 2026). The Court found Mr. España’s detention to
1 Pursuant to Fed. R. Civ. P. 25(d), Markwayne Mullin has been substituted
for Kristi Noem as Secretary of the Department of Homeland Security in this action.
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be unlawful and ordered that he be immediately released and provided with a bond
hearing before an immigration judge (“IJ”) pursuant to 8 U.S.C. § 1226(a).
Id.
At Mr. España’s bond hearing, the IJ denied bond after finding that he posed
a danger to the community.
	See ECF No. 8 at 1. 	Notably, ICE officers did not
immediately take Mr. España back into custody or impose any other restrictions on
him following the bond hearing.
	See ECF No. 12 at 1-2. 	Instead, Mr. España
remained at liberty for nearly two months.
Then, on March 13, 2026, ICE officers re-detained Mr. España outside of his
residence as he was on his way to work. 	ECF No. 16 at 2. 	Now pending before the
Court is Mr. España’s Renewed Motion to Enforce Judgment. 2 	ECF No. 16. 	He
argues that the bond hearing provided to him by the Government pursuant to this
Court’s order failed to comport with the requirements of due process.
Id. at 1, 3. The
Government objects to Mr. España’s Motion. ECF Nos. 17, 18.
For the reasons stated, the Court GRANTS Mr. España’s Motion and ORDERS
the 	Government 	to 	immediately 	release 	him 	under 	reasonable 	conditions 	of
supervision.
2 After he was released, Mr. España filed an initial Motion to Enforce
Judgment, seeking to prevent ICE from re-detaining him. ECF No. 11. However, the
Court found that it was without authority to grant this motion because Mr. España
was no longer “in custody” within the meaning of 28 U.S.C. § 2241(c)(3).
	See ECF
No. 15 at 2 (“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.’”).
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I. 	BACKGROUND
Mr. España is a citizen of El Salvador. ECF No. 1 at 1. According to his initial
petition, he entered the United States in or about September 2014 after “fleeing gang
attacks and the complete failure of Salvadoran police to protect him after he
attempted to report a crime.”
	Id. He later filed a timely application for asylum and
withholding of removal, which remains pending at this time.
Id.;
see also ECF No. 10
at 3. He has since resided in Massachusetts. ECF No. 1 at 1.
On January 7, 2026, Mr. España attended his asylum interview at the USCIS
Field Office in Boston, Massachusetts.
	Id. At the end of the interview, ICE officers
arrested Mr. España.
	Id. at 2. 	According to the Government, one of the officers
served Mr. España with an arrest warrant 3 and a Notice to Appear, charging him
with being removable under 8 U.S.C. § 1182(a)(6)(A)(i) 4 and 212(a)(7)(A)(i)(I).5 ECF
3 An ICE arrest warrant is “different from a judicial arrest warrant.”
	Aditya
W. H. v. Trump, 782 F. Supp. 3d 691, 699 n.3 (D. Minn. 2025). This type of warrant
is administrative in nature and is issued as a Form I-200 by an ICE officer based on
their “own determination of probable cause that a noncitizen is removable from the
United States.”
	Id. (citing
Abel v. United States, 362 U.S. 217, 233 (1960)). “The I-
200 warrant is a fascinating tool that is all but self-executing, issued to ICE agents
by ICE agents without a neutral third-party to review its integrity.”
	Rodrigues De
Oliveira v. Joyce, No. 2:25-cv-00291-LEW, 2025 WL 1826118, at *4 (D. Me. July 2,
2025). 4 This provision of the Immigration and Nationality Act (“INA”) renders a
noncitizen removable if they are “present in the United States without being admitted
or paroled.”
	López-Pérez v. Garland, 26 F.4th 104, 109 (1st Cir. 2022) (quoting 8
U.S.C. § 1182(a)(6)(A)(i)).
5 This provision of the INA renders a noncitizen removable if they are “not in
possession of a valid entry document.”
	Gonzalez-Arevalo v. Garland, 112 F.4th 1, 6
(1st Cir. 2024) (citing 8 U.S.C. § 1182(a)(7)(A)(i)(I)).
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No. 10 at 2. 	Mr. España denies this, however, stating that his arrest took place
without a warrant and without service of the Notice to Appear. ECF No. 1 at 10.
Following his arrest, Mr. España was briefly detained at ICE’s Boston Field
Office in Burlington, Massachusetts. 	ECF No. 10 at 2. 	However, ICE officers later
transferred him to the Donald W. Wyatt Detention Facility in Central Falls, Rhode
Island. ECF No. 1 at 2.
While 	in 	custody, 	Mr. 	España 	filed 	a 	habeas 	petition 	with 	this 	Court,
challenging the legality of his detention.
Id. On January 16, 2026, the Court granted
the petition and ordered the Government to immediately release Mr. España from
detention and provide him with a bond hearing before an IJ pursuant to 8 U.S.C.
§ 1226(a).
	See Text Order (Jan. 16, 2026). 	The Government complied and released
Mr. España that same day.
See ECF No. 12 at 1.
Pursuant to this Court’s order, the Government provided Mr. España with a
bond hearing before the Chelmsford Immigration Court on January 22, 2026. 	ECF
No. 11 at 2. Prior to the hearing, Mr. España, through his attorney (“BM”), submitted
several pieces of evidence in support of his request for bond.
	Id. 	Conversely, the
attorney representing the Department of Homeland Security (“DHS”) entered into
the record a Form I-213. 6
	Id.;
see also ECF No. 9 at 1. 	This was the only piece of
evidence submitted by DHS.
6 A Form I-213 is “a standard government form that documents biographical
and factual information about a deportable or inadmissible [noncitizen].”
	Garcia-
Aguilar v. Lynch, 806 F.3d 671, 673 (1st Cir. 2015).
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Mr. 	España 	attended 	the 	bond 	hearing 	virtually 	from 	his 	home 	in
Massachusetts. During the hearing, the following conversation7 ensued:
IJ: Alright, so the court sees the habeas order in this case from the
District of Rhode Island, indicating [Mr. España] must be released or
given a bond hearing before an immigration judge.
***
IJ: Alright, so we are going to hold a bond hearing. 	So that District
Court order will be Exhibit 1. 	Exhibit 2 will be evidence filed by [Mr.
España] on 1/21/26. Exhibit 3 will be evidence filed by [Mr. España] on
1/22/26, today. And the I-213 will be Exhibit 4.
***
IJ: And I’ll hear argument from [DHS] first, please, on danger or flight
or any, anything else [DHS] would like to raise.
DHS: Thank you, your honor. 	[DHS] is arguing [Mr. España] holds a
danger and a flight risk. I would note that [Mr. España’s] evidence, um,
that we have filed is a I-213. Within that I-213, um, there is information
regarding [Mr. España’s], um, being, with [Mr. España] being charged
in 2011 in El Salvador with illicit associations and robbery. Um, I would
further note that he also has a conviction in the United States, um, in
the Cambridge District Court for operating under the influence of
alcohol, and that evidence that was produced by El Salvador, um, while
[DHS] admits that this attorney is not in receipt of that evidence, it did
not file it with the court, um, ERO wrote within this report that evidence
produced 	by 	the 	El 	Salvadorian 	National 	Police 	proved 	gang
membership of the 18th Street Gang, um, for [Mr. España]. 	And, as
such, [DHS] is arguing that [Mr. España] is a danger. In terms of flight
risk, I would just note that, um, there appears to be, um, some level of
criminal activity in El Salvador, or at least contact with the criminal
system, um, as well as, um, the representation that he is a, a gang
member, and that any relief in his case would be speculative.
IJ: Alright, thank you. Counsel, I’d like to hear from you on the issue of
danger first, given the, uh, fairly serious criminal history.
7 This conversation is taken from the audio recording of the January 22, 2026
bond hearing, which the Government submitted pursuant to this Court’s Text Order.
See Text Order (Jan. 23, 2026); ECF No. 9 at 1. The transcript is unofficial and is a
copy prepared by the Court. 	Neither of the parties dispute that this is a fair and
accurate account of events that transpired during the bond hearing.
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FGE: Oh, your honor, first as, as counsel said, uh, I have not received
this evidence that ERO claims to have regarding, uh, gang membership.
All we have is an accusation. 	Um, similar, on the I-213, I, I see a
mention of charges, uh, from 2011. 	You know, we, as we submitted in
our evidence, we conducted our own search, um, in El Salvador and were
not able to find any of these charges. Um, I, I certainly see no evidence
of any convictions, um, and so I would say that the, you know, the DHS
position on the gang membership appears right now to be a purely
unsupported accusation. 	Um, as far as, you know, [Mr. España] has
been in the U.S. since 2014. 	Uh, he has a clean CORI check. 	There,
there is the matter of the OUI. He did undergo treatment. He, in our,
in our submission, supplemental 2, exhibit M, we do have a letter, um,
a 	psychiatric 	evaluation, 	a 	nonpartial 	psychiatric 	evaluation, 	um,
indicating that he has not had any drinks, uh, since 2020, um, and that
he is a low risk of recidivism. 	I, I would submit to the court that his
record is, is actually fairly clean, uh, for the last, you know, decade plus.
IJ: Thank you. Alright, the court does find that [Mr. España] is a danger
to the community by clear and convincing evidence, and so the court is
denying bond. Counsel, reserve appeal on this?
FGE: Yes.
IJ: Alright. Appeal date is February 23, 2026. We’ll be adjourned.
Bond Hearing, at 00:55-5:20, Chelmsford Immigr. Ct. (recorded Jan. 22, 2026)
(hereinafter “Bond Hearing”).
Due to the IJ’s finding that he posed a danger to the community, Mr. España’s
request for bond was denied.8 	ECF No. 9 at 1. 	Nevertheless, ICE officers did not
immediately take Mr. España back into custody following the hearing, nor does the
8 Neither of the parties submitted the IJ’s order itself. 	However, there is no
dispute between the parties that this is what occurred.
	See ECF No. 8 at 1
(displaying the Government’s status report, which states that Mr. España’s “request
for a change in custody status was denied based on the Immigration Court’s
conclusion that he presents a danger to the community by clear and convincing
evidence”); ECF No. 11 at 2 (“The Immigration Judge denied [Mr. España’s] bond,
stating in an order that he was a danger to the community.”).
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record suggest that they placed any monitoring devices or conditions of release on
him.
See ECF No. 12 at 1-2.
In response to a text order asking him how he would like to proceed with his
habeas petition,
see Text Order (Feb. 2, 2026), Mr. España filed a Motion to Enforce
Judgment on February 6, 2026. ECF No. 11. He primarily sought an order from the
Court, preventing ICE from re-detaining him in the future based on the IJ’s denial of
bond.
See ECF No. 12 at 2-3; ECF No. 14 at 3.
The Court denied Mr. España’s Motion without prejudice. 	ECF No. 15 at 3;
see also España v. Nessinger, No. 26-cv-014-JJM-PAS, 2026 WL 507403, at *2 (D.R.I.
Feb. 23, 2026). 	The Court found that it could not grant Mr. España the relief he
sought because he was no longer “in custody” within the meaning of 28 U.S.C.
§ 2241(c)(3).
	España, 2026 WL 507403, at *1. 	However, the order made clear that
“[s]hould 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.”
Id. at 2.
On March 13, 2026, almost two months after this Court had ordered his
release, ICE officers showed up at Mr. España’s residence and re-arrested him as he
was on his way to work. 	ECF No. 16 at 2. 	Mr. España is now detained at the
Plymouth County Correctional Facility in Plymouth, Massachusetts. 	ECF No. 18-1
at 2; ECF No. 19 at 1.
Mr. España has now filed a Renewed Motion to Enforce Judgment, arguing
that the bond hearing that the Government provided him failed to comport with due
process requirements.
Id. The Government objects to this motion, asserting that the
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Court is without jurisdiction to consider this type of claim and that Mr. España
should be required to exhaust his administrative remedies before proceeding with his
claim in federal court. ECF Nos. 17, 18.
II. 	DISCUSSION
A. 	Jurisdiction
1. 	Section 1226(e)
Before reaching the merits of Mr. España’s motion, the Court must first assure
itself of its jurisdiction. The Government’s primary argument in its opposition to Mr.
España’s motion is that 8 U.S.C. § 1226(e) deprives this Court of jurisdiction to review
an IJ’s bond determination. ECF No. 17 at 1-2.
This Court has already held several times that Section 1226(e) does not deprive
it of subject-matter jurisdiction to consider the type of claim that Mr. España
presents.
See, e.g.,
Garcia v. Hyde, No. 25-cv-585-JJM-PAS, --- F. Supp. 3d ----, 2025
WL 3466312, at *5 (D.R.I. Dec. 3, 2025);
Mavungo-Raymond v. Nessinger, No. 26-cv-
013-JJM-AEM, 2026 WL 161358, at *8 (D.R.I. Jan. 21, 2026);
Picado v. Hyde, No. 26-
cv-065-JJM-PAS, 2026 WL 352691, at *4-5 (D.R.I. Feb. 9, 2026);
Higiro v. Nessinger,
No. 26-cv-105-JJM-AEM, 2026 WL 710297, at *4 (D.R.I. Mar. 13, 2026).
To reiterate, Section 1226(e) provides that “[t]he [Secretary of Homeland
Security’s]9 discretionary judgment regarding the application of this section shall not
9 The language of the statute refers to the “Attorney General’s discretionary
judgment.” 	8 U.S.C. § 1226(e). 	However, following the lead of the Supreme Court,
the Court replaced the Attorney General with the Secretary of Homeland Security
because “Congress has empowered the Secretary to enforce the Immigration and
Nationality Act.”
	Nielsen v. Preap, 586 U.S. 392, 397 n.2 (2019) (citing 8 U.S.C.
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be subject to review,” and that “[n]o court may set aside any action or decision by the
[Secretary] under this section regarding the detention of any [noncitizen] or the
revocation or denial of bond or parole.” 	8 U.S.C. § 1226(e). 	The Government
continues to insist that, through this provision of the Immigration and Nationality
Act (“INA”), “Congress has specifically stripped district courts of jurisdiction to review
bond decisions.” ECF No. 17 at 2. Not so.
As the Supreme Court has explained, if Congress intended to bar review of
all
bond decisions by the district courts, it would have written the text of the statute to
apply to “
any judgment” by the IJ.
	Patel v. Garland, 596 U.S. 328, 341 (2022)
(emphasis 	in 	original). 	Instead, 	Congress 	“limit[ed] 	the 	jurisdictional 	bar 	to
‘
discretionary judgments.’”
	Id. at 341-42 (emphasis added) (distinguishing between
different provisions of the INA that bar review of “discretionary judgments” as
opposed to those that bar review of “any judgment”).
Section 1226(e) therefore only bars review of an IJ’s “discretionary judgment.”
Saint Fort v. Ashcroft, 329 F.3d 191, 200 (1st Cir. 2003). 	This of course begs the
question: What is a discretionary judgment? The Supreme Court has recognized that
an 	IJ’s 	“underlying 	factual 	determination[s]” 	are 	discretionary 	and 	therefore
unreviewable. 10
	Wilkinson v. Garland, 601 U.S. 209, 222 (2024). 	“For instance, an
§ 1101
et seq.);
see also id. at 401 (replacing “Attorney General” with “Secretary” for
the purposes of Section 1226(e)).
10 This point was made within the context of a different INA provision, 8
U.S.C. § 1252(a)(2)(B), 	which 	“strips 	courts 	of 	jurisdiction 	over 	‘judgment[s]
regarding the granting of [discretionary] relief . . . .’”
Wilkinson v. Garland, 601 U.S.
209, 218 (2024) (quoting 8 U.S.C. § 1252(a)(2)(B)). However, the Supreme Court has
compared this provision to Section 1226(e) because both bar judicial review of
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IJ’s factfinding on credibility, the seriousness of a family member’s medical condition,
or the level of financial support a noncitizen currently provides” are all unreviewable
discretionary judgments.
	Id. at 225. In the bond hearing context, the Ninth Circuit
has recognized that an IJ’s decision to “set an excessively high bond amount” is an
unreviewable discretionary judgment under Section 1226(e).
	See Prieto-Romero v.
Clark, 534 F.3d 1053, 1068 (9th Cir. 2008).
By contrast, Section 1226(e) does
	not preclude “habeas jurisdiction over
constitutional claims or questions of law.”
Hernandez v. Sessions, 872 F.3d 976, 987
(9th Cir. 2017) (quoting
Leonardo v. Crawford, 646 F.3d 1157, 1160 (9th Cir. 2011));
see also Hernandez-Lara v. Lyons, 10 F.4th 19, 34 (1st Cir. 2021) (“[O]ur decision
cabins the discretion granted by section 1226(a) through the constitutional restraints
applicable to all government action.”);
Quinteros v. Warden Pike Cnty. Corr. Facility,
784 F. App’x 75, 77 (3d Cir. 2019) (holding that, Section 1226(e) notwithstanding,
courts sitting in habeas “retain the power to review the legal standard underlying
immigration officials’ actions and to evaluate legal and constitutional claims on that
basis”);
Al–Siddiqi v. Achim, 531 F.3d 490, 494 (7th Cir. 2008) (holding that Section
1226(e) does not deprive courts sitting in habeas of “authority to review statutory and
constitutional challenges”).
In 	fact, 	where 	a 	“bond 	denial 	is 	challenged 	as 	legally 	erroneous 	or
unconstitutional,” a district court sitting in habeas retains jurisdiction over that
“discretionary judgments.”
Patel, 596 U.S. at 341-42 (discussing similarities between
the language contained in Section 1252(a)(2)(B) and Section 1226(e)).
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challenge.
	Mayancela Mayancela v. FCI Berlin, Warden, No. 25-cv-348-LM-TSM,
2025 WL 3215638, at *6 (D.N.H. Nov. 18, 2025);
Singh v. Holder, 638 F.3d 1196, 1202
(9th Cir. 2011) (“[C]laims that the discretionary process itself was constitutionally
flawed are cognizable in federal court on habeas because they fit comfortably within
the scope of § 2241.” (internal citations and quotations omitted)));
see also Miranda
v. Garland, 34 F.4th 338, 373 n.1 (4th Cir. 2022) (Urbanski, J., concurring) (“Whether
noncitizens receive due process ‘is not a matter of discretion’ and is subject to judicial
review.”);
R.I.L-R v. Johnson, 80 F. Supp. 3d 164, 176 (D.D.C. 2015) (“[I]t is not within
DHS’s discretion to decide whether it will be bound by the law.” (quotation omitted)).
As relevant here, an IJ’s determination at a bond hearing that a noncitizen
poses a danger to the community is not a decision that is shielded entirely from
judicial review, as made clear by recent developments at the Supreme Court and the
Ninth Circuit. To start, the Ninth Circuit previously held in a 2022 case that Section
1226(e) deprived district courts of jurisdiction to review an IJ’s dangerousness
determination because it was “discretionary” in nature.
	See Martinez v. Clark, 36
F.4th 1219, 1228 (9th Cir. 2022),
cert. granted, judgment vacated, ––– U.S. ––––, 144
S. Ct. 1339 (2024). 	However, the Supreme Court later vacated that ruling and
remanded the case “for further consideration in light of
Wilkinson v. Garland, 601
U.S. 209 (2024).”11
Martinez v. Clark, ––– U.S. ––––, 144 S. Ct. 1339 (2024) (mem.).
11
	Wilkinson 	helped 	to 	clarify 	the 	distinction 	between 	unreviewable
“discretionary judgments” and reviewable “questions of law.” 	601 U.S. 209 (2024).
The Supreme Court made clear that “[t]he application of a statutory legal standard .
. . to an established set of facts is a quintessential mixed question of law and fact.”
Id. at 212. 	Then, relying on an earlier case, the Court concluded that “mixed
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On 	remand, 	the 	Ninth 	Circuit 	reasoned 	that, 	after
	Wilkinson, 	the
determination 	over 	whether 	a 	noncitizen 	is 	“dangerous” 	for 	the 	purposes 	of
immigration detention is “a mixed question of law and fact and is reviewable as a
‘question of law.’”
	Martinez v. Clark, 124 F.4th 775, 779 (9th Cir. 2024);
see also id.
at 783 (“
Wilkinson compels the conclusion that application of the ‘dangerousness’
standard is a reviewable mixed question.”). 	More specifically, the dangerousness
determination is a finding based on the application of a statutory legal standard to
an established set of facts, which is a reviewable “question of law” not barred by
Section 1226(e).
See Wilkinson, 601 U.S. at 212, 225;
Martinez, 124 F.4th at 779.
Thus, Mr. España is not challenging the IJ’s discretionary judgment. Rather,
his challenge is constitutional in nature because he contends that the IJ at his bond
hearing failed to apply the legal standard that due process requires.
See ECF No. 11
at 3 (citing
Hernandez-Lara, 10 F.4th at 41);
see also ECF No. 16 at 3. 	He also
asserts that the IJ erred as a matter of law in determining that he poses a danger to
the community. ECF No. 11 at 3-4. As mentioned, these claims are reviewable by a
court sitting in habeas, such as this one.
Moreover, Mr. España has filed a motion to enforce this Court’s prior habeas
order. 	As various courts of appeals have recognized, a district court retains
jurisdiction to ensure compliance with its earlier order granting a petitioner habeas
relief.
	See, e.g.,
Leonardo, 646 F.3d at 1161 (“[T]he district court ha[s] authority to
questions of law and fact” are reviewable as “questions of law.”
	Id. at 225;
see also
Guerrero-Lasprilla v. Barr, 589 U.S. 221, 228 (2020).
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review compliance with its earlier order conditionally granting habeas relief.”);
Gentry v. Deuth, 456 F.3d 687, 692 (6th Cir. 2006) (holding that a district court
retains jurisdiction to determine whether a party has complied with the terms of a
conditional order in a habeas case);
Phifer v. Warden, U.S. Penitentiary, 53 F.3d 859,
865 (7th Cir. 1995) (“When a habeas petitioner alleges noncompliance with a
conditional order, jurisdiction exists for the purpose of determining whether the
[Government] acted in accordance with the court’s mandate.”);
see also Shillitani v.
United States, 384 U.S. 364, 370 (1966) (“[C]ourts have inherent power to enforce
compliance with their lawful orders . . . .”).
Section 1226(e) is no impediment to this endeavor either because a district
court has the authority to determine whether all of the conditions contained in its
previous habeas order were followed—that is, whether the petitioner received the due
process to which they were entitled.
	See Hechavarria v. Whitaker, 358 F. Supp. 3d
227, 235-36 (W.D.N.Y. 2019) (rejecting the Government’s argument that Section
1226(e) precluded the court from entertaining a motion to enforce its previous habeas
order);
Mathon v. Searls, 623 F. Supp. 3d 203, 213 (W.D.N.Y. 2022) (same).
The Court is therefore satisfied that Section 1226(e) does not divest it of
subject-matter jurisdiction to review Mr. España’s claim.
2. 	Personal Jurisdiction and Venue Considerations
There is one more wrinkle that the Court must address, which relates to the
fact that Mr. España is no longer detained in the District of Rhode Island. Instead,
he is currently being held in ICE custody in the District of Massachusetts.
See ECF
No. 18-1 at 2. 	This development implicates “a rather complicated area of habeas
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jurisdictional jurisprudence.”
	Williams v. Warden, FCI Berlin, 786 F. Supp. 3d 436,
444 (D.N.H. 2025).
As a threshold matter, a habeas petition brought under 28 U.S.C. § 2241 must
“allege . . . the name of the person who has custody over” the petitioner. 	28 U.S.C.
§ 2242;
see also 28 U.S.C. § 2243 (“The writ . . . shall be directed to the person having
custody 	of 	the 	person 	detained.”). 	The 	Supreme 	Court 	has 	referred 	to 	this
requirement as the “immediate custodian rule.”
	Rumsfeld v. Padilla, 542 U.S. 426,
434-35 (2004). 	This rule provides that in cases in which a petitioner challenges the
legality of their present physical confinement within the United States (so-called
“core challenges”), the petitioner must name their “immediate custodian” as the
respondent.
	Id. 	Generally, the petitioner’s immediate custodian is the warden or
superintendent of the facility in which they are being held, “not the Attorney General
or some other remote supervisory official.”
	Id. at 435;
see also Vasquez v. Reno, 233
F.3d 688, 691 (1st Cir. 2000).
Two more rules are relevant here. 	First, the “territorial jurisdiction rule”
requires the court issuing the writ of habeas corpus “‘to have jurisdiction over the
custodian.’”
Padilla, 542 U.S. at 442 (quoting
Braden v. 30th Jud. Cir. Ct. of Ky., 410
U.S. 484, 495 (1973)). 	This is so because “[d]istrict courts are limited to granting
habeas relief ‘within their respective jurisdictions.’”
Id. (quoting 28 U.S.C. § 2241(a)).
It is the custodian “who holds [the petitioner] in what is alleged to be unlawful
custody” 	and 	who 	can 	ultimately 	be 	compelled 	to 	“‘release 	[the 	petitioner’s]
constraint.’”
Braden, 410 U.S. at 494-95 (first citing
Wales v. Whitney, 114 U.S. 564,
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574 (1885); then quoting
In re Jackson, 15 Mich. 417, 439-40 (1867)). 	Second and
relatedly, the “district of confinement rule” provides that a petitioner must file their
habeas petition in their “district of confinement.”
	Padilla, 542 U.S. at 447. In cases
where 	the 	immediate 	custodian 	rule 	applies, 	“the 	district 	of 	confinement 	is
synonymous with the district court that has territorial jurisdiction over the proper
respondent.”
Id. at 444 (emphasis in original).
Unlike the Section 1226(e) challenge, the immediate custodian, territorial
jurisdiction, and district of confinement rules do not implicate the Court’s subject-
matter jurisdiction.
Id. at 434 n.7 (noting that the word “jurisdiction” is used “in the
sense that it is used in the habeas statute, 28 U.S.C. § 2241(a), and not in the sense
of subject-matter jurisdiction of the District Court”). Rather, these rules are treated
functionally as matters of personal jurisdiction and venue.
	See id. at 451 (Kennedy,
J., concurring) (“In my view, the question of the proper location for a habeas petition
is best understood as a question of personal jurisdiction or venue.”);
see also Vasquez,
233 F.3d at 690 (“[T]he court issuing the writ must have personal jurisdiction over
the person who holds the petitioner in custody.”);
Ozturk v. Trump, 779 F. Supp. 3d
462, 475 (D. Vt. 2025).
Notably, the Government did not raise a personal jurisdiction or venue
challenge in its response in opposition to Mr. España’s motion to enforce. 	ECF
Nos. 17, 18. 	Rule 12(h)(1) of the Federal Rules of Civil Procedure provides that a
defendant who wishes to raise a defense of lack of personal jurisdiction or improper
venue “must do so in their first defensive move, be it a Rule 12 motion or a responsive
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pleading.”
	Glater v. Eli Lilly & Co., 712 F.2d 735, 738 (1st Cir. 1983) (citing Fed. R.
Civ. P. 12(h)(1)). Failure to raise these issues results in waiver of the defenses.
	See
Uffner v. La Reunion Francaise, S.A., 244 F.3d 38, 40-41 (1st Cir. 2001) (citing Fed.
R. Civ. P. 12(h)(1)(A)). These principles apply with full force in the civil immigration
context, and the Court therefore finds any objections based on personal jurisdiction
or venue grounds to be waived.
See Padilla, 542 U.S. at 452 (Kennedy, J., concurring)
(“Because 	the 	immediate-custodian 	and 	territorial-jurisdiction 	rules 	are 	like
personal-jurisdiction or venue rules, objections to the filing of petitions based on those
grounds can be waived by the Government.”);
see also Mendez v. Martin, No. 15-
408ML, 2016 WL 2849598, at *5 n.7 (D.R.I. Apr. 19, 2016).
In any event, even if such challenges had been raised, this Court has personal
jurisdiction over Mr. España’s custodian, and venue is likely proper in the District of
Rhode Island. 	A well-established exception to the immediate custodian, territorial
jurisdiction, and district of confinement rules is that “jurisdiction attaches on the
initial filing for habeas corpus relief, and it is not destroyed by a transfer of the
petitioner and the accompanying custodial change.”
	Francis v. Rison, 894 F.2d 353,
354 (9th Cir. 1990) (quoting
Santillanes v. U.S. Parole Comm’n, 754 F.2d 887, 888
(10th Cir. 1985));
see also McClure v. Hopper, 577 F.2d 938, 939-40 (5th Cir. 1978).
Indeed, as the Supreme Court has recognized, the district court in which the habeas
petition 	was 	filed 	retains 	jurisdiction, 	even 	after 	the 	Government 	moves 	the
petitioner out of the district, so long as there is a respondent within the court’s
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jurisdiction who has the legal authority to effectuate the petitioner’s release.
Padilla,
542 U.S. at 441 (citing
Ex parte Endo, 323 U.S. 283, 304-05 (1944)).
In this case, Mr. España named Michael Nessinger, the Warden of the Wyatt
Detention Facility, as a respondent, along with: David Wesling, the Acting Director
of ICE’s Boston Field Office; Michael Krol, the New England Special Agent in Charge
of Homeland Security Investigations (“HSI”); Todd Lyons, ICE’s Acting Director; and
Kristi Noem,12 the then U.S. Secretary of Homeland Security.
See ECF No. 1. At the
time he filed his petition, he named his immediate custodian, Mr. Nessinger, and he
filed it in the District of Rhode Island, his district of confinement. This Court granted
Mr. España’s petition while he was still in Mr. Nessinger’s custody within the District
of Rhode Island.
	See Text Order (Jan. 16, 2026) (granting habeas petition). For the
purposes of this Motion to Enforce, the Court continues to retain jurisdiction over Mr.
España’s claim, even though he is now detained in the District of Massachusetts and
is in the custody of a different custodian.
See Padilla, 542 U.S. at 441.
Moreover, the remaining respondents, Mr. Wesling, Mr. Krol, Mr. Lyons, and
Secretary Mullin, fall within this Court’s jurisdiction and have the legal authority to
effectuate Mr. España’s release.
	See, e.g.,
Kaliku v. U.S. Immigr. & Customs Enf’t,
No. 24-3144-JWL, 2024 WL 4854523, at *2 (D. Kan. Nov. 21, 2024) (observing that
the 	United 	States 	Attorney 	and 	the 	named 	ICE 	officials 	“are 	responsible 	for
complying with this Court’s directives”);
Shonhai v. Lowe, No. 3:24-229, 2026 WL
538865, at *5 (M.D. Pa. Feb. 26, 2026) (“ICE and the United States Attorney must
12 Now Secretary Markwayne Mullin.
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comply 	with 	this 	Court’s 	orders.”);
	cf. 	Mendez, 	2016 	WL 	2849598, 	at 	*6
(recommending that habeas petition be dismissed because petitioner who had been
transferred from Rhode Island to Pennsylvania had only named the Warden of Wyatt
Detention Facility and no other respondent). Accordingly, the immediate custodian,
territorial jurisdiction, and district of confinement rules do not foreclose this Court’s
review of Mr. España’s motion.
B. 	Exhaustion
Aside from the jurisdictional argument, the Government mounts an additional
challenge to Mr. España’s claim, asserting that he should be required to exhaust his
administrative remedies before pursuing relief in this Court. 	ECF No. 17 at 7-9.
That argument is unavailing for multiple reasons.
First, no statute requires exhaustion under the present circumstances.
	See
Garcia, 2025 WL 3466312, at *6. 	Instead, this case is governed by the “more
permissive” common-law exhaustion standard.
	Brito v. Garland, 22 F.4th 240, 256
(1st 	Cir. 	2021). 	Under 	this 	standard, 	the 	Court 	may 	find 	exhaustion 	to 	be
unnecessary where “a particular plaintiff may suffer irreparable harm if unable to
secure immediate judicial consideration of his claim.”
	Portela-Gonzalez v. Sec’y of
the Navy, 109 F.3d 74, 77 (1st Cir. 1997) (citing
McCarthy v. Madigan, 503 U.S. 140,
147 (1992));
see also Bois v. Marsh, 801 F.2d 462, 468 (D.C. Cir. 1986) (“[E]xhaustion
might not be required if [the petitioner] were challenging her incarceration ... or the
ongoing deprivation of some other liberty interest.”).
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As this Court has found repeatedly, the loss of liberty endured by a noncitizen
in ICE custody is a “severe form of irreparable injury.”
Garcia, 2025 WL 3466312, at
*6 (quoting
Ferrara v. United States, 370 F. Supp. 2d 351, 360 (D. Mass. 2005));
see
also Tomas Elias v. Hyde, No. 25-cv-540-JJM-AEM, 2025 WL 3004437, at *3 (D.R.I.
Oct. 27, 2025). As an individual detained under Section 1226(a), the exact length of
Mr. España’s detention “is impossible to predict” and will likely be “quite lengthy.”
Hernandez-Lara, 10 F.4th at 29. 	This is so because detention under this statute
“‘continues until all proceedings and appeals are concluded . . . even where an
individual has prevailed and the Government appeals.’”
	Id. (quoting
Velasco Lopez
v. Decker, 978 F.3d 842, 852 (2d Cir. 2020)). As such, this Court will not require Mr.
España to sit in an ICE detention facility while this protracted process plays out.
Second, exhaustion is inappropriate when “further agency proceedings would
be 	futile.”
	Portela-Gonzalez, 	109 	F.3d 	at 78. 	The 	Government 	argues 	that
“exhaustion is not futile” in Mr. España’s case,
see ECF No. 17 at 8, but the Court
struggles to see how that is so. By regulation, a noncitizen typically has thirty days
to appeal an IJ’s bond denial to the BIA.
	See 8 C.F.R. § 1003.38(b); 8 C.F.R.
§ 1003.1(b)(7);
see also Matter of Liadov, 23 I&N Dec. 990, 993 (BIA 2006) (observing
that the thirty-day filing deadline is “strictly enforced”). 	Because the IJ in his case
denied his request for bond on January 22, 2026, Mr. España had until February 23,
2026 to appeal that adverse decision.
See Bond Hearing, at 05:13-05:19 (“Appeal date
is February 23, 2026.”).
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That 	window 	to 	appeal 	has 	long 	passed, 	which 	the 	Government 	itself
acknowledges in a supplemental declaration.
	See ECF No. 18-1 at 3 (“Appeals are
generally due within thirty days of the [IJ’s] orders. 	To date, no appeal of the [IJ’s]
bond order appears to have been filed with the [BIA]. The [IJ’s] bond order is now a
final order.”). It would therefore be futile to require Mr. España to go before the BIA
because his appeal would almost certainly be dismissed as being untimely filed.
Accordingly, any exhaustion requirement is hereby waived, and the Court will
now proceed to the merits of Mr. España’s claim.
C. 	The Merits
1. 	Standard of Review
As mentioned, in cases involving challenges to IJs’ bond determinations,
federal courts retain “habeas jurisdiction over constitutional claims or questions of
law.”
	Hernandez, 872 F.3d at 987. 	Importantly, the First Circuit has held that
placing the burden on noncitizens to prove at their bond hearings that they do not
present a danger to the community or pose a flight risk is a violation of the Fifth
Amendment’s Due Process Clause.
Hernandez-Lara, 10 F.4th at 39, 41. Instead, the
Government bears the burden of proving “by clear and convincing evidence that [the
noncitizen] poses a danger to the community,” or “by a preponderance of the evidence
that [the noncitizen] poses a flight risk.”
Id. at 41.
Thus, “to obtain habeas relief, the noncitizen must show that the IJ ‘failed to
place the burden of proof on the Government’ to either show dangerousness by clear
and convincing evidence or flight risk by a preponderance of the evidence.”
	Picado,
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2026 WL 352691, at *6 (quoting
Mayancela Mayancela, 2025 WL 3215638, at *5).
The noncitizen can make this showing either by: (1) demonstrating that the IJ erred
because the evidence itself could not, as a matter of law, have supported the IJ’s
decision to deny bond; or (2) pointing to the IJ’s opinion itself and showing that the
IJ failed to apply the correct standard to the facts.
	Garcia, 2025 WL 3466312, at *7
(citing
Hechavarria, 358 F. Supp. 3d at 240).
The Court is of course mindful of the need “to afford a degree of deference to
the IJ’s findings of fact and weighing of evidence.”
	Picado, 2026 WL 352691, at *6
(citing
Hechavarria, 358 F. Supp. 3d at 240);
see also United States v. Tortora, 922
F.2d 880, 882 (1st Cir. 1990). That being said, “[m]erely stating the proper standard
does not discharge the obligation to correctly apply the standard.”
	Akinsanya v.
Garland, 125 F.4th 287, 297 (1st Cir. 2025).
2. 	Analysis
The question at the center of the Court’s inquiry is the following: Could the
evidence that the IJ relied on at Mr. España’s bond hearing establish—as a matter of
law—that he posed a danger to the community? 13 A careful review of the record leads
to the conclusion that the answer to that question is no.
At first glance, the reasoning behind the IJ’s decision to deny Mr. España’s
request for bond is not entirely clear. 	Generally, IJs must sufficiently explain their
reasoning to permit appellate or judicial review of their decisions.
See Barnica-Lopez
v. Garland, 59 F.4th 520, 530 (1st Cir. 2023). Of course, the IJ need not “discuss ad
13 The IJ at Mr. España’s bond hearing did not make a finding as to flight risk.
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nauseam every piece of evidence,”
see Pan v. Gonzales, 489 F.3d 80, 87 (1st Cir. 2007),
or “spell out every last detail of [her] reasoning,”
see Rivera-Medrano v. Garland, 47
F.4th 29, 39 (1st Cir. 2022). However, at the very least, “the logical underpinnings”
of the IJ’s reasoning must be clear from the record in order to “provide [for] intelligent
review.”
	López-Gómez v. Bondi, 154 F.4th 1, 4 (1st Cir. 2025) (first quoting
Rivera-
Medrano, 47 F.4th at 39; then quoting
Tillery v. Lynch, 821 F.3d 182, 185 (1st Cir.
2016)).
The IJ did not issue a written decision in this case.14 	Instead, she rendered
her decision orally, stating simply: “Alright, the court does find that [Mr. España] is
a danger to the community by clear and convincing evidence, and so the court is
denying bond.” Bond Hearing, at 05:04-5:10. The IJ did not provide any explanation
to support this conclusion.
Though the IJ did not state the reasoning for her denial, the audio recording
of the bond hearing seems to suggest that she relied entirely on representations made
by DHS in the I-213 form that the agency itself had created for Mr. España.
See ECF
No. 9 at 1 (“Respondents file with . . . the I-213 form cited by government counsel
during the bond hearing in support of the government’s contentions that [Mr. España]
14 In its briefing, the Government explains that, per the U.S. Department of
Justice’s Executive Office for Immigration Review (“EOIR”), the IJ is not required to
write “reasoned analysis” to explain her reasoning “until [Mr. España] appeals the
IJ’s decision to the BIA.” ECF No. 17 at 6;
see also Executive Office for Immigration
Review, 	U.S. 	Dep’t 	of 	Justice, 	OCIJ 	Immgr. 	Ct. 	Prac. 	Manual 	§ 8.3,
https://www.justice.gov/eoir/policy-manual-eoir/part-II/icpm/chapter-8-3
[https://perma.cc/F6Y5-FNHS] (last visited Mar. 25, 2026) (explaining that the IJ’s
decision is usually rendered orally, but if either party appeals, the IJ “prepares a
written decision based on notes from the hearing”).
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presented a danger to the community.”);
see also Bond Hearing, at 03:27-03:34
(stating that the IJ wanted to hear from Mr. España’s attorney on the “issue of
danger” given the “fairly serious criminal history” contained in the I-213). This is not
inherently 	improper, 	as 	8 	C.F.R. 	§ 1003.19(d) 	expressly 	provides 	that 	“[t]he
determination of the Immigration Judge as to custody status or bond may be based
upon any information that is available to the Immigration Judge or that is presented
to him or her by the [noncitizen] or [DHS].” 8 C.F.R. § 1003.19(d). It is important to
note, however, that the Government presented no other evidence against Mr. España.
According to the attorney for DHS, the I-213 served as conclusive “evidence” of
Mr. España: (1) being charged in 2011 in El Salvador with “illicit associations and
robbery”; (2) being convicted in Massachusetts of operating a vehicle under the
influence of alcohol (“OUI”); and (3) being a member of the 18th Street Gang. Bond
Hearing, at 02:21-03:07. The I-213 here, however, exhibits several shortcomings that
undermine the form’s reliability.
This Court has previously held that an uncorroborated police report cannot, by
itself, establish dangerousness as a matter of law.
See, e.g.,
Picado, 2026 WL 352691,
at *7 (“Without more, an uncorroborated police report is simply not clear and
convincing evidence sufficient for a finding of dangerousness.”);
Rosa Pineda v.
Nessinger, No. 25-cv-522-MSM-AEM, 2025 WL 3267328, at *1 (D.R.I. Nov. 24, 2025)
(“[A]n uncorroborated police report cannot, alone, be ‘clear and convincing evidence
sufficient for a finding of dangerousness.’”);
Alvarez Puerta v. Nessinger, No. 25-cv-
108-JJM-AEM, slip op. at 1 (D.R.I. June 17, 2025) (finding that an uncorroborated
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police 	report 	is 	not 	clear 	and 	convincing 	evidence 	sufficient 	for 	a 	finding 	of
dangerousness).
An I-213 form is nothing more than a police report15 created by a DHS officer.
See 	Garcia-Aguilar, 	806 	F.3d 	at 	673 	(observing 	that 	an 	I-213 	is 	a 	standard
government form created by an ICE agent that documents biographical and factual
information about a noncitizen);
see also Jianli Chen v. Holder, 703 F.3d 17, 23 n.4
(1st Cir. 2012) (noting that an I-213 is “the form customarily prepared by border
patrol agents incident to [a noncitizen’s] apprehension at the border”). 	It may refer
to criminal charges that a noncitizen is alleged to have committed, but it is not
evidence of those criminal charges themselves.
See Olivas-Motta v. Holder, 746 F.3d
907, 918 (9th Cir. 2013) (Kleinfeld, J., concurring) (“It has long been clear that police
reports are not generally ‘reasonable, substantial, and probative evidence’ of what
someone did.”).
Statements contained in Mr. España’s I-213 suggesting that he is a gang
member with criminal charges lodged against him would ordinarily be regarded as
hearsay. 	However, “immigration proceedings are not governed by the rules of
evidence.”
Andrade-Prado v. Garland, 64 F.4th 386, 394 (1st Cir. 2023) (citing
Yongo
v. I.N.S., 355 F.3d 27, 30 (1st Cir. 2004));
see also Arias-Minaya v. Holder, 779 F.3d
49, 54 (1st Cir. 2015) (“[I]t is settled beyond hope of contradiction that . . . immigration
15 Immigration law scholar Mary Holper has referred to the I-213 as the “police
report of immigration law.”
	See Mary Holper,
The Beast of Burden in Immigration
Bond Hearings, 67 Case W. Rsrv. L. Rev. 75, 118-19 (2016);
see also Mary Holper,
Confronting Cops in Immigration Court, 23 Wm. & Mary Bill Rts. J. 675, 695 (2015)
(describing the use of I-213 forms in immigration court).
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courts may consider police reports even when they rest largely on hearsay.”). “There
are, of course, limits—but those limits are generally satisfied as long as the trier first
determines that the report is reliable and that its use would not be fundamentally
unfair.”
	Arias-Minaya, 779 F.3d at 54 (citing
Matter of Teixeira, 21 I&N Dec. 316,
321 (BIA 1996);
Matter of Grijalva, 19 I&N Dec. 713, 721-22 (BIA 1988)).
In 	the 	context 	of 	the 	I-213, 	BIA 	precedent 	provides 	that 	“[a]bsent 	any
indication that a Form I-213 contains information that is incorrect . . ., that document
is inherently trustworthy. . . .”
Matter of Barcenas, 19 I&N Dec. 609, 611 (BIA 1988).
If evidence is introduced in the record indicating that the I-213 is incorrect, then the
form is no longer considered “inherently trustworthy.”
	Andrade-Prado, 64 F.4th
at 394. 	The form also loses trustworthiness if the information contained within it
was obtained by someone other than the noncitizen who is the subject of the form.
See Pouhova v. Holder, 726 F.3d 1007, 1013 (7th Cir. 2013);
Rosendo-Ramirez v.
I.N.S., 32 F.3d 1085, 1088 (7th Cir. 1994) (“Since the I-213 is supposed to be a record
of a conversation with [a noncitizen], courts have evaluated its probative value by
considering whether there is evidence that the form is inaccurate or that the
information recorded in it was obtained by someone other than the [noncitizen]
himself.”).
In Mr. España’s case, there are several indications that the I-213 used against
him at his bond hearing contains incorrect information. First, the attorney for DHS
told the IJ that, according to the I-213, Mr. España had been charged in El Salvador
in 2011 with “illicit associations and robbery.” 	Bond Hearing, at 02:27-02:40. 	Mr.
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España’s attorney submitted evidence to the contrary, informing the IJ that his own
search turned up no charges in El Salvador against Mr. España.
	Id. at 03:57-04:05.
The IJ did not even acknowledge this potentially exculpatory evidence.16
Second, the DHS attorney declared to the IJ that the I-213 listed Mr. España’s
state court conviction on an OUI charge.
Id. at 02:27-02:46 (“Within that I-213 there
is information regarding . . . [Mr. España’s] conviction in the United States in the
Cambridge District Court for operating under the influence of alcohol.”). 	However,
the I-213 states no such thing: while it reports that Mr. España was arraigned on an
OUI charge, the form itself says that “[t]he Cambridge (MA) District Court issued a
Continuance Without a Finding against GIL ESPANA.” ECF No. 10 at 2-3. Indeed,
Mr. España’s attorney promptly informed the IJ of this discrepancy. Bond Hearing,
at 03:51-04:08 (“On the I-213 . . . I certainly see no evidence of any convictions.”). He
also informed the IJ that Mr. España has a clean CORI check.17
Id.
16 Even assuming there are pending criminal charges against Mr. España, this
Court has previously observed that BIA precedent requires IJs to consider the
recency
of those charges in their bond determinations.
Garcia, 2025 WL 3466312, at *10;
see
Matter of Guerra, 24 I&N Dec. 37, 40 (BIA 2006) (instructing IJs to look to, among
other things, “the
recency of such [criminal] activity”) (emphasis added). 	In any
event, 	courts 	have 	found 	that 	presuming 	dangerousness 	based 	on 	criminal
convictions alone, particularly those that are over a decade old, does not satisfy due
process.
	See Chi Thon Ngo v. Immigr. & Naturalization Serv., 192 F.3d 390, 398-99
(3d Cir. 1999) (relating to “nearly ten-year old convictions”);
Judulang v. Chertoff,
562 F. Supp. 2d 1119, 1127 (S.D. Cal. 2008) (relating to a nearly twenty-year-old
conviction). 	As relevant here, a decade-old criminal charge from another country
arguably merits even less reliance by an IJ.
	Cf. Garcia, 2025 WL 3466312, at *11
(finding that a Guatemalan warrant issued for a noncitizen’s arrest more than ten
years ago could not, without more, support a present finding of flight risk).
17 “CORI” stands for “Criminal Offender Record Information,” and it is the
system used in Massachusetts to list an individual’s court appearances and criminal
convictions.
McCambridge v. Hall, 266 F.3d 12, 20-21 (1st Cir. 2001).
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There are several other inconsistencies in the I-213. 	It lists Mr. España’s
initial arrest date by ICE as January 6, 2026,
see ECF No. 10 at 3, even though his
arrest occurred the next day, on January 7, 2026.
	See ECF No. 1 at 1; ECF No. 16
at 1. The form further states that upon his arrest, an ICE officer served Mr. España
with an arrest warrant and a Notice to Appear and explained the circumstances
surrounding the arrest.
	See ECF No. 10 at 2. 	Mr. España disputes this, asserting
that he was served with neither a warrant nor a Notice to Appear, and that at no
time was it made clear to him on which grounds he was being arrested. 	ECF No. 1
at 9-10.
Perhaps the claim deserving of the most scrutiny is the allegation contained in
the I-213 that Mr. España is a member of the 18th Street Gang. 	Notably, this
information was not obtained from Mr. España himself but was allegedly “produced
by the El Salvadorian National Police.” 	ECF No. 10 at 4. 	At the bond hearing, the
DHS attorney asserted that Mr. España’s purported gang membership made him a
danger to the community. Bond Hearing, at 02:50-03:06. The DHS attorney conceded
that she had not filed any evidence with the immigration court to support this
accusation.
	Id. 	Even so, the DHS attorney asked that she be taken at her word
because the I-213 simply spoke for itself.
Id.
That DHS could not be bothered to introduce evidence to substantiate this
allegation of gang membership is baffling considering that the agency claims in the
I-213 to be in possession of such evidence.
See ECF No. 10 at 4 (“Evidence produced
by the El Salvadorian National Police prove gang membership with the 18th Street
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Gang.”). Indeed, Mr. España’s attorney aptly characterized DHS’s position as resting
on nothing more than “a purely unsupported accusation” of gang membership. Bond
Hearing, at 04:10-04:18.
Given its numerous inconsistencies and the fact that it contains critical
information not obtained from Mr. España himself, the I-213 in Mr. España’s case
cannot fairly be considered “inherently trustworthy.”
	See, e.g.,
Matter of Barcenas,
19 I&N Dec. at 611;
Andrade-Prado, 64 F.4th at 394;
Pouhova, 726 F.3d at 1013;
Rosendo-Ramirez, 32 F.3d at 1088. 	By the BIA’s own standards, in the absence of
any additional evidence to corroborate an unreliable police report, the report may not
be given substantial weight.
	See In re Arreguin De Rodriguez, 21 I&N Dec. 38, 42
(BIA 1995) (“[W]e are hesitant to give substantial weight to an arrest report, absent
a conviction or corroborating evidence of the allegations contained therein. Here, the
applicant conceded that the arrest took place but admitted to no wrongdoing.
Considering that prosecution was declined and that there is no corroboration, from
the applicant or otherwise, we give the apprehension report little weight.”);
see also
Rosa v. Garland, 114 F.4th 1, 17 (1st Cir. 2024) (holding that the BIA “may not give
‘substantial weight’ to a police report in the absence of ‘a conviction or corroborating
evidence of the allegations contained’ in the report”).
Therein lies the problem with the sole piece of evidence that the Government
presented—and the IJ relied on—to prove dangerousness at Mr. España’s bond
hearing. 	Recall 	that 	to 	prove 	dangerousness, 	due 	process 	requires 	that 	the
Government satisfy the “clear and convincing evidence” standard.
	Hernadez-Lara,
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10 F.4th at 41. 	This is an “intermediate” standard of proof—somewhere between a
preponderance of the evidence and beyond a reasonable doubt—that the Supreme
Court has mandated in civil commitment proceedings, which implicate “a significant
deprivation of liberty that requires due process protection.”
Addington v. Texas, 441
U.S. 418, 424, 425 (1979);
see also Santosky v. Kramer, 455 U.S. 745, 756 (1982).
According to the Supreme Court, the clear and convincing standard is met by
proving that a factual contention is “highly probable.”
	Colorado v. New Mexico, 467
U.S. 310, 316 (1984). Likewise, the BIA has defined the standard as “‘that degree of
proof though not necessarily conclusive, which will produce in the mind of the court
a firm belief or conviction, or as that degree of proof which is more than a
preponderance but less than beyond a reasonable doubt.’”
	Matter of Patel, 19 I&N
Dec. 774, 783 (BIA 1998) (quoting
Matter of Carrubba, 11 I&N Dec. 914, 917 (BIA
1966)).
The Government believes that it can detain—or, more accurately, re-detain—
Mr. España for an unspecified period of time based on nothing more than its own say-
so. 	The Government is wrong. 	Due process demands more. 	An unreliable,
uncorroborated I-213 form simply cannot, by itself, serve as clear and convincing
evidence sufficient for a finding of dangerousness.
Cf. Picado, 2026 WL 352691, at *7
(reaching the same result with regard to an uncorroborated police report);
Rosa
Pineda, 2025 WL 3267328, at *1 (same);
Alvarez Puerta, slip op. at 1 (same).
The Court therefore finds that it was legal error for the IJ to conclude that the
Government had satisfied its evidentiary burden.
	See Enoh v. Sessions, No. 16-CV-
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85(LJV), 2017 WL 2080278, at *10 (W.D.N.Y. May 15, 2017) (“Rubber stamping a
prior 	determination 	with 	the 	words 	‘clear 	and 	convincing 	evidence’ 	is 	simply
insufficient.”). Here, the evidence that the IJ relied on could not have, as a matter of
law, supported her decision to deny Mr. España’s bond request.
See Garcia, 2025 WL
3466312, at *7;
Hechavarria, 358 F. Supp. 3d at 240.
3. 	Remedy
Given the due process violations implicated in this case, the Court finds that
Mr. España’s immediate release from detention is the appropriate remedy.
	See
Morrissey v. Brewer, 408 U.S. 471, 481 (1972) ( “It has been said so often by this
Court and others as not to require citation of authority that due process is flexible
and calls for such procedural protections as the particular situation demands.”). Mr.
España’s immediate release shall be subject to reasonable conditions of supervision.
See Hechavarria, 358 F. Supp. 3d at 243-44 (ordering similar relief);
Enoh, 2017 WL
2080278, at *10-11 (same);
Garcia, 2025 WL 3466312, at *11 (same);
Picado, 2026 WL
352691, at *7 (same).
III. 	CONCLUSION
For the reasons stated, the Court GRANTS Mr. España’s Renewed Motion to
Enforce. ECF No. 16. The Government is hereby ORDERED to release Fabricio Gil
España immediately under reasonable conditions of supervision.
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IT IS SO ORDERED.
s/John J. McConnell, Jr.
_________________________________
JOHN J. MCCONNELL, JR.
Chief Judge
United States District Court
March 25, 2025
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