Macas Pacheco v. Wesling et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
WILSON MACAS PACHECO,
Petitioner,
v.
DAVID WESLING,
Acting Director of
Boston Field Office, U.S. Immigration
and Customs Enforcement; TODD M.
LYONS,
Acting Director, U.S.
Immigration and Customs
Enforcement; MARKWAYNE
MULLIN,
Secretary of the U.S.
Department of Homeland Security; and
MICHAEL NESSINGER,
Warden for
Donald W. Wyatt Detention Facility,
Respondents.
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
No. 26-cv-329-JJM-AEM
ORDER
I. 	DISCUSSION
Wilson Macas Pacheco has filed a habeas petition under 28 U.S.C. § 2241,
arguing that his arrest and continued detention by Immigration and Customs
Enforcement (“ICE”) is unlawful, and that he must be released and given a bond
hearing before an immigration judge (“IJ”) pursuant to 8 U.S.C. § 1226(a). ECF No. 1.
Mr. Macas Pacheco also contends that he is a member of the class (i.e., the “
Guerrero
Orellana class”) recently certified by Judge Patti B. Saris of the U.S. District Court
for the District of Massachusetts, and he seeks enforcement of his rights as a member
of that class.
	Id. at 6-7;
see Guerrero Orellana v. Moniz, 813 F. Supp. 3d 185 (D.
Case 1:26-cv-00329-JJM-AEM Document 6 Filed 05/26/26 Page 1 of 8 PageID #:
<pageID>

2
Mass. 2025),
appeal docketed, No. 26-1094 (1st Cir. Jan. 26, 2026). 	This class is
composed of:
All people who are arrested or detained in Massachusetts, or are
detained in a geographical area over which, as of September 22, 2025,
an Immigration Court located in Massachusetts is the administrative
control court, or who are otherwise subject to the jurisdiction of an
Immigration Court located in Massachusetts, where:
(a) 	the person is not in any Expedited Removal process under 8
U.S.C. § 1225(b)(1), does not have an Expedited Removal order
under 8 U.S.C. § 1225(b)(1), and is not currently in proceedings
before an immigration judge due to having been found to have a
credible fear of persecution under 8 U.S.C. § 1225(b)(1)(B)(ii);
(b) 	for the person’s most recent entry into the United States, the
government has not alleged that the person was admitted into the
United States and has not alleged that person was paroled into
the United States pursuant to 8 U.S.C. § 1182(d)(5)(A) at the time
of entry or after continuous detention upon arrival;
(c) 	the person does not meet the criteria for mandatory detention
pursuant to 8 U.S.C. § 1226(c);
(d) 	the person is not subject to post-final order detention under 8
U.S.C. § 1231; and
(e) 	the person is not a person whose most recent arrest occurred at
the border while they were arriving in the United States and has
been continuously detained thereafter.
Guerrero Orellana, 813 F. Supp. 3d at 198-99.
The Government’s position is that Mr. Macas Pacheco is lawfully detained
pursuant to 8 U.S.C. § 1225(b)(2). ECF No. 5 at 1. As support for this position, the
Government cites to recent decisions from the Eighth and Fifth Circuits.
	Id.;
see
Avila v. Bondi, 170 F.4th 1128 (8th Cir. 2026);
Buenrostro-Mendez v. Bondi, 166 F.4th
494 (5th Cir. 2026). These cases stand for the idea that all noncitizens present in the
United States who have not been admitted or paroled are “applicant[s] for admission”
Case 1:26-cv-00329-JJM-AEM Document 6 Filed 05/26/26 Page 2 of 8 PageID #:
<pageID>

3
that are “seeking admission” into the country, and they are thus subject to mandatory
detention.
	See 8 U.S.C. § 1225(b)(2);
	Avila, 170 F.4th at 1134-35;
	Buenrostro-
Mendez, 166 F.4th at 502.
The Government ignores the fact that this Court is not bound by decisions from
the Eighth and Fifth Circuits. 	Indeed, this Court—and the overwhelming majority
of district courts—have rejected the Government’s position.
	See, e.g.,
Morales v.
Hyde, 	No. 26-cv-093-JJM-PAS, 	2026 	WL 	508811, 	at 	*1 	(D.R.I. 	Feb. 	24, 	2025)
(collecting cases from the District of Rhode Island);
Barco Mercado v. Francis, 811 F.
Supp. 3d 487, 494 (S.D.N.Y. 2025) (explaining that similarly situated petitioners
“have prevailed, either on a preliminary or final basis, in 350 [out of 362] cases
decided by over 160 different judges sitting in about fifty different courts spread
across the United States”).
Three federal courts of appeals have also rejected the Government’s position.
See Barbosa da Cunha v. Freden, No. 25-3141-pr, --- F.4th ----, 2026 WL 1146044, at
*2 (2d Cir. Apr. 28, 2026) (holding that 8 U.S.C. § 1225(b)(2)(A) “does not apply to . .
. noncitizens, who are present in the United States after entering the country without
inspection and admission, and who were not apprehended while entering the country
or shortly thereafter”);
Hernandez Alvarez v. Warden, Fed. Det. Ctr. Mia., Nos. 25-
14065, 25-14075, --- F.4th ----, 2026 WL 1243395, at *1 (11th Cir. May 6, 2026) (“We
are unpersuaded by the Government’s re-interpretation of § 1225(b)(2)(A).”);
Lopez-
Campos v. Raycraft, Nos. 25-1965, 1969, 1978, 1982, --- F.4th ----, 2026 WL 1283891,
at *11 (6th Cir. May 11, 2026) (“We therefore find that an “applicant for admission”
Case 1:26-cv-00329-JJM-AEM Document 6 Filed 05/26/26 Page 3 of 8 PageID #:
<pageID>

4
is not necessarily ‘seeking admission.’ Because no Petitioner is alleged to be seeking
admission or lawful entry into the United States, § 1225(b)(2)(A)’s mandatory
detention scheme does not apply to them.”). 	This Court finds those decisions to be
persuasive.
Just in case it bears repeating, the Court will remind the Government that its
power to detain a noncitizen must be grounded in a specific provision of the
Immigration and Nationality Act (“INA”).
	See, e.g.,
Gonzalez Lopez v. Wesling,
No. 26-cv-047-JJM-AEM, --- F. Supp. 3d ----, 2026 WL 309607, at *1 (D.R.I. Feb. 5,
2026);
accord Hechavarria v. Sessions, 891 F.3d 49, 54 (2d Cir. 2018). 	Here, the
Government argues that 8 U.S.C. § 1225(b)(2) is the authority that gives it the power
to detain Mr. Macas Pacheco. ECF No. 4 at 1. Not so.
As this Court has stated in
Tomas Elias and the litany of cases that have
followed it, this INA provision does
not provide the Government with the legal
authority to detain individuals in Mr. Macas Pacheco’s position.
	See, e.g.,
Tomas
Elias v. Hyde, No. 25-cv-540-JJM-AEM, 2025 WL 3004437, at *2-3 (D.R.I. Oct. 27,
2025). As someone who has resided in the United States since 2021,
see ECF No. 1
at 1-2, Mr. Macas Pacheco cannot fairly be described as someone who is “seeking
admission” into the country, so 8 U.S.C. § 1225(b)(2) does not and cannot apply to
him. 	Indeed, the Government acknowledges that should the Court follow its
reasoning in
Tomas Elias, it would reach the same result in Mr. Macas Pacheco’s
case. ECF No. 5 at 2.
Case 1:26-cv-00329-JJM-AEM Document 6 Filed 05/26/26 Page 4 of 8 PageID #:
<pageID>

5
With respect to Mr. Macas Pacheco’s contention that he is a part of the
Guerrero Orellana class, the Government does not raise much of an objection and
simply states that this legal issue is like one recently addressed by Judge F. Dennis
Saylor IV of the U.S. District Court for the District of Massachusetts. ECF No. 5 at
2;
see Martins de Oliveira v. Hyde, No. 25-13940-FDS, 2026 WL 74111 (D. Mass. Jan.
9, 2026). In that case, Judge Saylor held that a noncitizen detainee belonged to the
Guerrero Orellana class because he: (1) was detained in Massachusetts; (2) was not
placed in expedited removal proceedings; (3) was neither admitted nor paroled into
the United States; (4) is not subject to mandatory detention under 8 U.S.C. § 1226(c);
(5) is not subject to post-final order detention under 8 U.S.C. § 1231; and (6) his most
recent arrest did not occur at the border when he was arriving in the United States.
Martins de Oliveira, 2026 WL 74111, at *2. Here too, the Government concedes that
should the Court apply the reasoning of
Martins de Oliveira to this case, it would
likely reach the same result as Judge Saylor. ECF No. 4 at 2.
The reasoning provided in
Tomas Elias and
Martins de Oliveira remains
correct. 	As such, the Court finds that Mr. Macas Pacheco’s detention is unlawful.
See Tomas Elias, 2025 WL 3004437, at *2-3. In addition, for the same reasons stated
by Judge Saylor, the Court finds that Mr. Macas Pacheco is a member of the
Guerrero
Orellana class.
See Martins de Oliveira, 2026 WL 74111, at *2. Mr. Macas Pacheco’s
petition is therefore GRANTED. ECF No. 1.
Case 1:26-cv-00329-JJM-AEM Document 6 Filed 05/26/26 Page 5 of 8 PageID #:
<pageID>

6
II. 	REMEDY
As for next steps, there is a dispute over what remedy is proper for Mr. Macas
Pacheco. 	The Government argues that the Court should deny Mr. Macas Pacheco’s
request for immediate release from ICE custody, and asks that he only be granted a
bond hearing. ECF No. 4 at 1 n.1.
Of course, this is completely antithetical to the Government’s original position.
The Government has consistently maintained that those who are subject to 8 U.S.C.
§ 1225(b)(2) are statutorily
ineligible for bond hearings.
See, e.g.,
Matter of Q. Li, 29
I&N Dec. 66, 69 (BIA 2025) (citing
Jennings v. Rodriguez, 583 U.S. 281, 298 (2018)).
And, in this case, the Government does not claim that it has the authority to detain
Mr. Macas Pacheco under any statute other than 8 U.S.C. § 1225(b)(2). 	But again,
this statute does not apply to Mr. Macas Pacheco’s particular circumstances.
Recall that the Government’s power to detain
must be grounded in a specific
provision of the INA. Thus, considering that the Government did not have the legal
authority to detain Mr. Macas Pacheco in the first place, and given that it fails to cite
any other authority under which he may be detained, it follows then that the proper
remedy is to order Mr. Macas Pacheco’s immediate release.
See Preiser v. Rodriguez,
411 U.S. 475, 484 (1973) (“It is clear . . . that the essence of habeas corpus is an attack
by a person in custody upon the legality of that custody, and that the traditional
function of the writ is to secure release from illegal custody.”).
The Court will also order a bond hearing for Mr. Macas Pacheco’ pursuant to 8
U.S.C. § 1226(a). At the bond hearing, the Government will be free to argue to an IJ
Case 1:26-cv-00329-JJM-AEM Document 6 Filed 05/26/26 Page 6 of 8 PageID #:
<pageID>

7
that Mr. Macas Pacheco should be detained. However, the Government will have the
burden of proving this point either by clear and convincing evidence that he poses a
danger to the community or by preponderance of the evidence that he poses a flight
risk.
See Hernandez-Lara v. Lyons, 10 F.4th 19, 41 (1st Cir. 2021).
III. 	CONCLUSION
The Court therefore GRANTS Mr. Macas Pacheco’s habeas petition. 	ECF
No. 1. 	The Government is hereby ORDERED to release Wilson Macas Pacheco
immediately. 	Per its request, the Government is permitted to transfer Mr. Macas
Pacheco 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 1 n.1. However, the Court DENIES the Government’s additional request to place
“any monitoring equipment deemed appropriate.”
	Id. Because the Government did
not have the lawful authority to detain Mr. Macas Pacheco in the first place, the Court
will not permit the Government to keep him “in custody” through the use of
monitoring equipment pending the bond hearing.
	See Morales, 2026 WL 508811, at
*3-4 (denying similar request from the Government because “[i]t does not follow . . .
that ICE gets to keep [the petitioner] ‘in custody’ once he leaves the Wyatt Detention
Facility”). Effectuating Mr. Macas Pacheco’s transfer to Burlington shall not in any
way impede his immediate release.
The Government is also ORDERED to provide Wilson Macas Pacheco with a
bond hearing before an IJ under 8 U.S.C. § 1226(a) within ten (10) days of the date of
this order. Should it choose to pursue Mr. Macas Pacheco’s continued detention, the
Case 1:26-cv-00329-JJM-AEM Document 6 Filed 05/26/26 Page 7 of 8 PageID #:
<pageID>

8
Government must show why less restrictive alternatives to detention would be
inadequate for it to achieve its goals.
	See Higiro v. Nessinger, No. 26-cv-105-JJM-
AEM, 2026 WL 710297, at *8 (D.R.I. Mar. 13, 2026) (finding that due process requires
IJs to consider alternatives to detention at bond hearings to ensure that detention is
not 	arbitrarily 	imposed 	and 	bears 	a 	reasonable 	relation 	to 	the 	Government’s
interests). The IJ shall consider any alternatives to detention
before making a finding
as to flight risk or dangerousness.
	See Brito v. Garland, 22 F.4th 240, 254 (1st Cir.
2021) (noting that to require otherwise would be “to put the cart before the horse”).
Finally, the Court ORDERS the Government to file a status report within five
(5) days of Mr. Macas Pacheco’s bond hearing, stating whether he has been granted
bond. If Mr. Macas Pacheco’s request for bond is denied, the Government shall state
the reason for that denial and whether Mr. Macas Pacheco has been re-detained by
ICE.
IT IS SO ORDERED.
s/John J. McConnell, Jr.
_________________________________
JOHN J. MCCONNELL, JR.
Chief Judge
United States District Court
May 26, 2026
Case 1:26-cv-00329-JJM-AEM Document 6 Filed 05/26/26 Page 8 of 8 PageID #:
<pageID>