Higiro v. Nessinger et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
FRANK HIGIRO,
Petitioner,
v.
MICHAEL NESSINGER,
Warden,
Wyatt Detention Facility; DAVID
WESLING,
Field Office Director, U.S.
Immigration and Customs
Enforcement, New England Field
Office; TODD M. LYONS,
Director,
U.S. Immigration and Customs
Enforcement; KRISTI NOEM,
Secretary of the U.S. Department of
Homeland Security; and PAMELA J.
BONDI,
Attorney General of the
United States,
Respondents.
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No. 26-cv-105-JJM-AEM
MEMORANDUM AND ORDER
JOHN J. MCCONNELL, JR., United States District Court Chief Judge.
Frank 	Higiro 	is 	currently 	in 	the 	custody 	of 	Immigration 	and 	Customs
Enforcement (“ICE”) officials at the Donald W. Wyatt Detention Facility in Central
Falls, Rhode Island. ECF No. 1 at 2. He brings this habeas petition under 28 U.S.C.
§ 2241, seeking immediate release from ICE custody or, in the alternative, a new bond
hearing before an immigration judge (“IJ”).
	Id. at 10. 	Mr. Higiro challenges the
constitutionality of his initial bond hearing at which the presiding IJ failed to
consider alternatives to detention before denying his request for release on bond.
Id.
at 8-10. 	The Government opposes Mr. Higiro’s petition, primarily arguing that this
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Court lacks jurisdiction to review the IJ’s decision under 8 U.S.C. § 1226(e). 	ECF
No. 5 at 10-14.
As explained below, the Court finds that Section 1226(e) does not preclude
review of Mr. Higiro’s claim. Further, the Court finds that Mr. Higiro did not receive
the due process he was owed at his bond hearing. As such, the Court GRANTS Mr.
Higiro’s petition and ORDERS that the Government provide him with a new bond
hearing at which the IJ shall consider alternatives to detention.
I. 	BACKGROUND
Mr. Higiro is a citizen of Rwanda who came to the United States in August
2015 on a student visa. ECF No. 1-1 at 241 ; ECF No. 5 at 3. Within a few months of
entering the country, Mr. Higiro filed an application for asylum and withholding of
removal with U.S. Citizenship and Immigration Services (“USCIS”).
See ECF No. 1-
1 at 90 (displaying Mr. Higiro’s application).
Since 2023, Mr. Higiro has had three encounters with law enforcement. First,
Mr. Higiro was arrested in Gorham, Maine for operating a vehicle under the influence
(“OUI”).
See ECF No. 1-1 at 176-78 (displaying arrest report). This charge was later
dismissed, and Mr. Higiro paid a ticket for the traffic violation of “imprudent speed.”
ECF No. 6-2 at 2.
A few days later, Merrimack, New Hampshire police officers arrested Mr.
Higiro and charged him with the offense of prohibited sales of alcohol to a minor.
See
1 All page numbers correspond with those listed at the top of each individual
ECF filing.
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ECF No. 6-3 at 8-25 (displaying police arrest and incident reports). 	After failing to
appear for his arraignment, Mr. Higiro was charged with disorderly conduct, an
offense for which he was convicted.
	See ECF No. 1-1 at 161-62. 	However, the
prohibited sales charge was later dismissed via
nolle prosequi,2 and the disorderly
conduct conviction has since been annulled.3
Finally, a year and a half later, Mr. Higiro was arrested in Brunswick, Maine
and charged with assault, criminal restraint, and furnishing liquor to a minor.
	See
ECF No. 1-1 at 149-54 (displaying arrest report). Brunswick Police later closed this
case after being unable to reach the alleged assault victim.
	Id. at 154. 	The police
have said that they will continue to attempt to contact her and reopen the case once
she is located.
Id.
On February 20, 2025, ICE officers took Mr. Higiro into custody at his
residence. 	ECF No. 1 at 5; ECF No. 1-1 at 167. 	The Department of Homeland
Security (“DHS”) formally initiated removal proceedings against him on February 27,
2025, 	and 	the 	agency 	charged 	him 	as 	being 	removable 	under 	8 	U.S.C.
§ 1227(a)(1)(C)(i).4 ECF No. 1 at 5;
see also ECF No. 1-1 at 166-68.
2
Nolle prosequi is a Latin phrase meaning “does not wish to prosecute.”
Zinicola v. Mott MacDonald, LLC, No. 16-cv-542-JL, 2018 WL 1832408, at *4 n.64
(D.N.H. Apr. 17, 2018). Under New Hampshire law, “[t]he entry of a nolle prosequi
serves as the functional equivalent of a dismissal.”
Id. (citing
State v. Allen, 837 A.2d
324, 326 (N.H. 2003)).
3 Under New Hampshire law, an individual whose “record of arrest, conviction,
and sentence” has been annulled “shall be treated in all respects as if he or she had
never been arrested, convicted, or sentenced.”
Wolfgram v. N.H. Dep’t of Safety, 140
A.3d 517, 520 (N.H. 2016) (quoting N.H. Rev. Stat. § 651:5(X)(a)).
4 Under this provision of the Immigration and Nationality Act (“INA”),
noncitizens who fail to maintain the terms or conditions of the status under which
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For a while, ICE held Mr. Higiro at the Cumberland County Jail in Portland,
Maine. 	ECF No. 1-1 at 146. 	However, he was later transferred to the Donald W.
Wyatt Detention Facility in Central Falls, Rhode Island, where he remains detained
today. ECF No. 1 at 5.
While in custody, Mr. Higiro requested a bond hearing before an IJ. ECF No. 1
at 6. 	Pursuant to 8 U.S.C. § 1226(a), a hearing was held in the Chelmsford
Immigration Court.
	Id. 	After the hearing, the IJ denied Mr. Higiro’s request for
release on bond, finding him to pose a danger to the community. ECF No. 1-1 at 68
(displaying IJ’s order).
In a memorandum, the IJ explained that she based her bond decision on the
three encounters Mr. Higiro has had with law enforcement since 2023.
	See ECF
No. 1-1 at 54-57. 	She found the police reports related to those encounters to be
“sufficiently reliable to show a concerning and escalating pattern of [Mr. Higiro]
engaging in dangerous and violent actions.”
Id. at 56. She concluded that, “based on
the totality of the circumstances, including the nature, seriousness, and recency of
[Mr. Higiro’s] police encounters, … DHS met its burden to show by clear and
convincing evidence that [Mr. Higiro] poses a danger to the community.”
Id. at 57.
Mr. Higiro appealed this decision to the Board of Immigration Appeals (“BIA”).
ECF No. 1 at 6. 	However, the BIA affirmed the IJ’s decision and dismissed Mr.
Higiro’s appeal. 	ECF No. 1-1 at 1-5. 	The BIA agreed that “DHS met its burden of
they were admitted (i.e., student status) can be ordered removed.
	See Badose v.
Garland, 125 F.4th 1, 3 (1st Cir. 2024) (citing 8 U.S.C. § 1227(a)(1)(C)(i)).
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proving by clear and convincing evidence that [Mr. Higiro’s] release would pose a
danger to the community” and “discerned no clear error” in the IJ’s finding to that
effect.
Id. at 1-2.
The IJ then issued another order in which she denied Mr. Higiro’s application
for asylum and withholding of removal, and she ordered him removed to Rwanda.
ECF No. 5-1 at 1-4 (displaying IJ’s removal order). Mr. Higiro timely appealed that
decision to the BIA, and that appeal remains pending at this time. ECF No. 1 at 6.
Mr. Higiro filed the instant petition, almost one year after he was first detained
by ICE. ECF No. 1. The Government objects to Mr. Higiro’s petition. ECF No. 5.
II. 	STANDARD OF REVIEW
Under Section 2241, federal courts may grant habeas relief to individuals who
are “in custody in violation of the Constitution or laws or treaties of the United
States.” 28 U.S.C. § 2241(c)(3). “The burden of proof of showing deprivation of rights
leading to unlawful detention is on the petitioner.”
	Espinoza v. Sabol, 558 F.3d 83,
89 (1st Cir. 2009) (citing
Walker v. Johnston, 312 U.S. 275, 286 (1941)).
III. 	DISCUSSION
A. 	Mr. Higiro’s Detention Under Section 1226(a)
The parties do not dispute that Mr. Higiro is detained under 8 U.S.C. § 1226(a).
See ECF No. 1 at 7; ECF No. 5 at 6. 	This provision of the Immigration and
Nationality Act (“INA”) permits DHS “to detain certain [noncitizens] already in the
country pending the outcome of removal proceedings.”
	Jennings v. Rodriguez, 583
U.S. 281, 289 (2018) (citing 8 U.S.C. § 1226(a)). 	In Mr. Higiro’s case, though an IJ
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has ordered him removed to Rwanda,
see ECF 5-1 at 3, this decision has not yet
become a final order of removal because the BIA has yet to rule on Mr. Higiro’s appeal
of that decision.
See 8 C.F.R. § 1241.1(a) (explaining that “[a]n order of removal made
by the immigration judge … shall become final … [u]pon dismissal of an appeal by
the Board of Immigration Appeals”).
As such, the outcome of Mr. Higiro’s removal proceedings remains pending.
Jennings, 583 U.S. at 289. In fact, the outcome has remained pending for over a year,
since DHS initiated removal proceedings against Mr. Higiro on February 27, 2025.
ECF No. 1 at 5; ECF No. 1-1 at 166-68. 	Mr. Higiro still awaits a decision on his
appeal of his removal order, which he filed with the BIA nearly nine months ago.
ECF No. 1 at 6.
The 	First 	Circuit 	has 	previously 	recognized 	that, 	although 	“removal
proceedings have an end point,” the exact length of detention for those detained under
Section 1226(a) “is impossible to predict and can be quite lengthy.”
Hernandez-Lara
v. Lyons, 10 F.4th 19, 29 (1st Cir. 2021). 	“Moreover, ‘[d]etention under § 1226(a) is
frequently prolonged because it 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)).
Importantly, this statutory scheme does not leave noncitizens without means
by which to challenge their detention. 	The Fifth Amendment’s Due Process Clause
provides noncitizens subject to detention under Section 1226(a) with the right to seek
review of their custody decision at a bond hearing (also known as a “custody
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redetermination hearing”) before an IJ.
	Hernandez-Lara, 10 F.4th at 41. 	At that
hearing, the Government bears the burden of proving either: (1) “by clear and
convincing evidence that [the noncitizen] poses a danger to the community” or (2) “by
a preponderance of the evidence that [the noncitizen] poses a flight risk.”
	Id. If the
Government fails to meet this burden, then bond or conditional parole must be
granted.
Gomes v. Hyde, 804 F. Supp. 3d 265, 269 (D. Mass. 2025). If, however, the
Government does meet its burden and the IJ determines that the noncitizen must
remain in custody, then the noncitizen may further appeal that decision to the BIA.
Hernandez-Lara, 10 F.4th at 26 (citing 8 C.F.R. § 236.1(d)(3)).5
Since he was first detained, Mr. Higiro has already gone through the typical
bond procedures contemplated by the court in
Hernandez-Lara: (1) he sought review
of his custody decision before an IJ; (2) the IJ opted to continue Mr. Higiro’s detention
because she found that the Government had met its burden of proving that he posed
a danger to the community; and (3) Mr. Higiro appealed that decision, but the BIA
affirmed the IJ and left the bond denial in place.
	See ECF No. 1 at 6. 	So, what
recourse is available to Mr. Higiro, if any?
B. 	Whether the IJ’s Bond Decision Was “Legally Insufficient”
5 Notably, this BIA bond decision may not be further appealed to the relevant
court of appeals.
	See Romero v. Hyde, 795 F. Supp. 3d 271, 278 (D. Mass. 2025).
Rather, “a petition for a writ of habeas corpus, filed in the appropriate district court,
is the only mechanism by which a noncitizen may seek judicial review of an IJ’s bond
decision.”
	Mayancela Mayancela v. FCI Berlin, No. 25-cv-348-LM-TSM, 2025 WL
3215638, at *4 (D.N.H. Nov. 18, 2025) (citing
Gudiel Polanco v. Garland, 839 F. App’x
804, 805 (4th Cir. 2021) (per curiam);
Ben Halim v. Ashcroft, 107 F. App’x 1, 6 (7th
Cir. 2004)).
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Mr. Higiro argues, among other things,6 that the IJ’s bond decision was “legally
insufficient” because she failed to consider alternatives to detention before denying
his request for release on bond. 	ECF No. 1 at 8-10. 	However, before it can proceed
to the merits, the Court must take a brief detour to address the Government’s
contention that 8 U.S.C. § 1226(e) deprives the Court of jurisdiction to consider Mr.
Higiro’s claim. ECF No. 5 at 10-14.
1. 	Jurisdiction
This Court has already held that Section 1226(e) does not deprive it of
jurisdiction to consider the type of claim that Mr. Higiro presents.
	See 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).
To 	reiterate, 	Section 	1226(e) 	provides 	that 	“[t]he 	Attorney 	General’s
discretionary judgment regarding the application of this section shall not be subject
to review,” and that “[n]o court may set aside any action or decision by the Attorney
General under this section regarding the detention of any [noncitizen] or the
revocation or denial of bond or parole.” 	8 U.S.C. § 1226(e). 	“[T]his provision of the
INA only bars ‘review of the Attorney General’s discretionary judgment.’”
	Picado,
6 Mr. Higiro also argues that the IJ legally erred in concluding that he posed a
danger to the community. 	ECF No. 1 at 8-10. 	Because the Court ultimately
concludes that the IJ should have considered alternatives to detention
before making
a determination as to dangerousness, the Court need not address Mr. Higiro’s other
argument.
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2026 WL 352691, at *4 (quoting
Saint Fort v. Ashcroft, 329 F.3d 191, 200 (1st Cir.
2003)). “It does not preclude, however, ‘habeas jurisdiction over constitutional claims
or questions of law.’”
Id. (quoting
Hernandez v. Sessions, 872 F.3d 976, 987 (9th Cir.
2017));
see also 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”). 	Indeed, “district courts have jurisdiction to review [an] Immigration
Judge’s discretionary bond denial only ‘where that bond denial is challenged as
legally erroneous or unconstitutional.’”
	Garcia, 2025 WL 3466312, at *5 (quoting
Mayancela Mayancela v. FCI Berlin, Warden, No. 25-cv-348-LM-TSM, 2025 WL
3215638, at *6 (D.N.H. Nov. 18, 2025)).
Here, Mr. Higiro does
not challenge the IJ’s discretionary judgment. 	Rather,
he argues that the IJ violated his Fifth Amendment Due Process rights by failing to
consider “less restrictive alternatives” to detention “before imposing ongoing jail-like
civil confinement.” 	ECF No. 1 at 9-10. 	This is precisely the type of constitutional
claim that belongs in federal court.
See Hernandez, 872 F.3d at 987;
Quinteros, 784
F. App’x at 77;
Al –Siddiqi, 531 F.3d at 494. Assured of its jurisdiction, the Court will
next turn to standing and exhaustion, two doctrinal points that the First Circuit has
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instructed district courts to consider when evaluating “alternatives to detention”
claims.
Id. at 252-57.
2. 	Standing and Exhaustion Considerations
Although the First Circuit has not yet squarely addressed whether due process
requires an IJ to consider alternatives to detention at a noncitizen’s bond hearing,
the issue has come up quite a few times. First, in
Hernandez-Lara v. Lyons, the court
cited favorably to a procedural due process protection imposed on IJs by the Ninth
Circuit, requiring them to “consider a noncitizen’s financial circumstances and
alternative conditions of release during section 1226(a) bond hearings.” 	10 F.4th
at 45 (citing
Hernandez, 872 F.3d at 990-91). 	Next, in
Doe v. Tompkins, after a
district court ordered an IJ to conduct a new bond hearing at which the Government
bore the burden of proof, the First Circuit affirmed the decision but declined to
address the other part of the court’s ruling—which ordered the IJ to consider
alternatives to detention—because neither of the parties had raised it on appeal. 11
F.4th 1, 2 (1st Cir. 2021).
Perhaps the closest the court came to taking up this issue was in
Brito v.
Garland, 22 F.4th 240 (1st Cir. 2021). 	There, the First Circuit reviewed another
district court order that required IJs to “evaluate the [noncitizen’s] ability to pay in
setting bond above [the statutory minimum of] $1,500” and “consider alternative
conditions of release, such as GPS monitoring, that reasonably assure the safety of
the community and the [noncitizen’s] future appearances.”
	Brito, 22 F.4th at 252.
Though it did not reach the merits of this decision, the First Circuit provided guidance
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on 	threshold 	considerations 	of 	standing 	and 	exhaustion 	that 	are 	relevant 	to
“alternatives to detention” claims.
Id. at 252-57.
a. 	Standing
First, as to standing, the First Circuit acknowledged that the requirements of
“traceability and redressability” are close questions.
	Id. at 254;
see Spokeo, Inc. v.
Robins, 578 U.S. 330, 338 (2016) (explaining that, to establish standing, plaintiffs
must “clearly … allege facts demonstrating” that they: “(1) suffered an injury in fact,
(2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is
likely to be redressed by a favorable judicial decision”). The court appeared skeptical
of the Government’s argument that “an IJ ought not consider … alternatives to
detention if the IJ has determined that the noncitizen poses a danger to the
community.”
Id. at 254. This would be “to put the cart before the horse, for it is easy
to see how conditions of release might shape an IJ’s determination as to whether a
noncitizen poses a flight risk or danger to the community.”
	Id. (citing
Fernandez
Aguirre v. Barr, No. 19-cv-7048 (VEC), 2019 WL 4511933, at *5 (S.D.N.Y. Sept. 18,
2019) 	(discussing 	court’s 	earlier 	order 	that 	the 	IJ 	consider 	“whether 	non-
incarceratory measures, such as home detention, electronic monitoring, and so forth,
could mitigate any danger that [the noncitizen] posed to the safety of the community
...
before concluding that detention was appropriate” (emphasis in original))). 	The
First Circuit explained that, “[i]f due process requires an IJ to consider alternatives
to detention before making a determination about dangerousness or risk of flight, the
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IJs in the petitioners’ cases might well have reached different decisions as to …
whether to release the petitioners on bond.”
Id. at 255.
Indeed, this is exactly what happened in Mr. Higiro’s case. 	Nowhere in her
four-page memorandum explaining her bond denial decision did the IJ reference or
consider any alternatives to detention; instead, after some brief analysis, the IJ found
that the Government had met its burden of proving dangerousness. 	ECF No. 1-1
at 54-57 (displaying IJ’s memo). When Mr. Higiro appealed this decision to the BIA,
he took specific issue with the IJ failing to consider alternatives to detention.
	Id.
at 22, 28, 36-37 (displaying Mr. Higiro’s brief in bond appeal). 	However, the BIA
ultimately found no error in the IJ’s failure to consider these alternatives because, as
it flatly stated in its decision, “dangerous aliens are properly detained without bond.”7
Id. at 5 (displaying BIA’s decision).
According to the BIA, the IJ was not required to reach the “alternatives to
detention” issue because she had determined that Mr. Higiro posed a danger to the
community. But, to quote the First Circuit, this is to “put the cart before the horse.”
Brito, 22 F.4th at 254. Had she looked to alternatives to detention
first, the IJ in Mr.
Higiro’s case “might well have reached [a] different decision[ ] as to whether to release
the petitioner[ ] on bond.”
Id. at 255.
Satisfied that Mr. Higiro has alleged traceability and redressability, as well as
injury in fact,
see id. at 253 (“It is too late in the day to dispute that an individual
7 For this contention, the BIA cited to its own decision in
Matter of Urena, 25
I&N Dec. 140, 141 (BIA 2009). ECF No. 1-1 at 5.
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alleging that his detention resulted from constitutionally defective procedures has
suffered an injury in fact sufficient to support Article III standing so as to challenge
those procedures.”), the Court concludes that Mr. Higiro has standing to bring the
type of claim that he asserts.
b. 	Exhaustion
The
Brito court next addressed whether the petitioners were required to
exhaust 	their 	administrative 	remedies 	before 	pressing 	their 	“alternatives 	to
detention” claim in federal court. 22 F.4th at 255-57. There is no statute requiring
exhaustion under these circumstances.
	Id. at 255-56. Rather, “the more permissive
realm of common-law exhaustion” governs in this type of situation.
Id. at 256 (citing
Anversa v. Partners Healthcare Sys., Inc., 835 F.3d 167, 174-75 (1st Cir. 2016)).
Notably, the First Circuit found the claim to be unexhausted where “none of the
petitioners remain[ed] detained” and where the petitioners failed “to ask their own
IJs to consider alternatives to detention.”
Id.
Unlike the petitioners in
Brito, Mr. Higiro has arguably exhausted all the
administrative remedies available to him. Not only did he raise his “alternatives to
detention” claim before the IJ,
see ECF No. 1-1 at 73-74, but he also raised this claim
on appeal to the BIA.
See id. at 22, 28, 36-37. The IJ did not address this claim, and
the BIA dismissed it outright. Perhaps more importantly, Mr. Higiro remains in ICE
custody and is nearing his thirteenth month of detention. ECF No. 1 at 2 (“Petitioner
has been in ICE custody since February 20, 2025.”).
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Even if Mr. Higiro’s claim were found to be “unexhausted,” 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.”
	Brito, 22
F.4th at 256 (quoting
Portela-Gonzalez v. Sec’y of the Navy, 109 F.3d 74, 77 (1st Cir.
1997));
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.”). And, of course, 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).
Thus, the Court is also convinced that exhaustion does not foreclose its
consideration of Mr. Higiro’s claim.
3. 	The Merits of Mr. Higiro’s Due Process Claim
The Fifth Amendment’s Due Process Clause prevents the Government from
depriving any person of “life, liberty, or property, without due process of law.” 	U.S.
Const. 	amend. 	V. 	“Freedom 	from 	imprisonment—from 	government 	custody,
detention, or other forms of physical restraint—lies at the heart of the liberty that
[the Due Process] Clause protects.”
	Zadvydas v. Davis, 533 U.S. 678, 690 (2001). It
is well established that due process protections extend to all individuals in the United
States, regardless of citizenship status.
	Id. at 693;
see also Reno v. Flores, 507 U.S.
292, 306 (1993).
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Turning to the substance of Mr. Higiro’s due process claim, this Court need not
write on a blank slate. 	As mentioned, several other courts within the First Circuit
have required IJs to consider alternatives to detention as part of their assessment of
danger and flight risk at bond hearings.
	See Doe v. Tompkins, No. 18-12266, 2019
WL 8437191, at *2 (D. Mass. Feb. 12, 2019),
aff’d, 11 F.4th 1 (1st Cir. 2021) (“The
immigration court shall properly allocate the burden of proof and consider alternative
methods to ensure the safety of the community and Doe’s future appearances like
GPS monitoring.”);
cf. Reid v. Donelan, 390 F. Supp. 3d 201, 225 (D. Mass. 2019),
aff’d
in part, vacated in part, 17 F.4th 1 (1st Cir. 2021) (requiring IJs in Section 1226(c)
cases to consider both a noncitizen’s “ability to pay in setting the bond amount and
alternative conditions of release”).
Going one step further, Judge Patti B. Saris held in a 2021 decision that, with
respect to noncitizens detained under Section 1226(a), due process required the IJs
conducting their bond hearings to have considered both the detainees’ “ability to pay
in setting the bond amount and alternative conditions of release, such as GPS
monitoring, that reasonably assure the safety of the community and the [detainee’s]
future appearances.”
Brito v. Barr, 415 F. Supp. 3d 258, 267 (D. Mass. 2021),
aff’d in
part, vacated in part sub nom.,
Brito v. Garland, 22 F.4th 240 (1st Cir. 2021). More
recently, Judge Angel Kelley held the same.
See Costa v. McDonald, No. 25-cv-13469-
AK, 2026 WL 371198, at *3 (D. Mass. Feb. 10, 2026) (“[T]he Immigration Judge’s
failure to consider whether alternatives to detention or other less restrictive means
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could address the risks of danger posed by Petitioner to the community was
constitutionally deficient.”).
Indeed, 	courts 	in 	other 	circuits 	have 	also 	recognized 	this 	due 	process
requirement.
	See, e.g.,
Hernandez, 872 F.3d at 1000 (finding that plaintiffs were
likely to succeed in their argument that due process requires IJs to consider
detainees’ financial circumstances and alternative conditions of release);
Hechavarria
v. Whitaker, 358 F. Supp. 3d 227, 242 (W.D.N.Y. 2019) (holding that IJ was required
to consider “alternatives before resorting to detention” at due process hearing where
the Government bore the burden of proving flight risk and dangerousness);
Ousman
D. v. Decker, No. 20-9646 (JMV), 2020 WL 5587441, at *4 (D.N.J. Sept. 18, 2020)
(“Because there is no evidence that the IJ considered less restrictive alternatives to
detention – such as a release subject to specific conditions, including regular
reporting and/or monitoring – the Court finds that the bond hearing failed to comply
with due process.”);
Roman v. Decker, No. 20-cv-6752 (AJN), 2020 WL 5743522, at *4
(S.D.N.Y. Sept. 25, 2020) (“[T]he Due Process Clause requires that the IJ must
consider alternative conditions of release and the detainee’s ability to pay before
making an ultimate determination.”).
Guided by these decisions, the Court therefore agrees with Mr. Higiro that due
process required the IJ in his case to have considered alternatives to detention
before
denying him release on bond, and that the IJ’s failure to make this consideration
rendered her bond determination “legally insufficient.” ECF No. 1 at 8-10. It is not
difficult to see why. 	Detention must bear a “reasonable relation” to the purpose for
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which the individual is detained.
See Zadvydas, 533 U.S. at 690 (quoting
Jackson v.
Indiana, 406 U.S. 715, 738 (1972)). 	The Supreme Court has recognized that two
governmental interests are legitimately advanced by detention in the immigration
context: 	(1) 	ensuring 	the 	appearance 	of 	the 	noncitizen 	at 	future 	immigration
proceedings; and (2) preventing danger to the community.
	Id. 	But, with respect to
regulations that burden other constitutional rights, the Supreme Court has
also
stated that “[w]hen a plausible, less restrictive alternative is offered … it is the
Government’s obligation to prove that the alternative will be ineffective to achieve its
goals.”
United States v. Playboy Ent. Grp., Inc., 529 U.S. 803, 816 (2000).
Thus, requiring an IJ to consider alternatives to detention at a bond hearing
helps to ensure that detention is not arbitrarily imposed and that it bears a
reasonable relation to the Government’s interests. As Judge Kelley persuasively put
it, “[i]t is possible in this context that a method short of burdening Petitioner’s liberty
would suffice to address any concerns of danger, and due process requires the
Government to at least address why those alternatives might be inadequate.”
Costa,
2026 WL 371198, at *3. 	Indeed, “non-incarceratory measures, such as home
detention, electronic monitoring,8 and so forth, could mitigate any danger that
Petitioner pose[s] to the safety of the community.”
	Fernandez Aguirre, 2019 WL
4511933, at *5;
see also Brito, 415 F. Supp. 3d at 267. “[R]easonable and appropriate
conditions of supervision,” such as “in-person reporting” to ICE, may also serve this
8 Of course, the Court recognizes that electronic monitoring is not without its
own unique problems.
	See generally Mary Holper,
Immigration E-Carceration: A
Faustian Bargain, 59 San Diego L. Rev. 1 (2022).
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purpose.
	Hechavarria, 358 F. Supp. 3d at 243-44 & n.13;
see also Ousman D., 2020
WL 5587441, at *4.
Accordingly, the Court ORDERS the Government to provide Mr. Higiro with a
new bond hearing, during which the Government must show that alternatives to
detention to ensure the safety of the community would be inadequate.
	See Costa,
2026 WL 371198, at *4 (ordering similar relief). During the bond hearing, the IJ shall
consider 	whether 	alternatives 	to 	detention 	are 	warranted
	before 	making 	any
determination as to flight risk or dangerousness.
	See Brito, 22 F.4th at 254 (noting
that to require otherwise would be “to put the cart before the horse”). 9
IV. 	CONCLUSION
For the reasons stated, Mr. Higiro’s habeas petition is GRANTED. ECF No. 1.
The Government is hereby ORDERED to provide Mr. Higiro with a bond hearing
before an IJ under 8 U.S.C. § 1226(a) within ten (10) days, during which the
Government must show that alternatives to detention to ensure the safety of the
community would be inadequate. The IJ shall meaningfully consider alternatives to
detention
before making any determination as to flight risk or dangerousness. 	The
Government shall also file a status report within five (5) days of Mr. Higiro’s bond
9 The Court need not reach Mr. Higiro’s alternative “prolonged detention”
claim.
See ECF No. 1 at 7-8. Here, the Court is already ordering a new bond hearing,
and as relevant to Mr. Higiro’s other claim, “[t]he remedy for a prolonged detention
is a bond hearing before an immigration judge at which the government bears the
burden of proving that the [noncitizen] should not be released on bond.”
Mayancela,
2025 WL 3215638, at *7 (quoting
Fils-Aime v. FCI Berlin, Warden, 808 F. Supp. 3d
218, 226 (D.N.H. 2025)).
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hearing, stating whether he has been granted bond and, if his request for bond was
denied, the reason for that denial.
IT IS SO ORDERED.
s/John J. McConnell, Jr.
_________________________________
JOHN J. MCCONNELL, JR.
Chief Judge
United States District Court
March 13, 2026
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