Ephor Isidor v. Nessinger et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
LUIS ANDRE EPHOR ISIDOR,
Petitioner,
v.
MICHAEL NESSINGER; DAVID T.
WESLING,
Boston Field Office
Director Boston Field Office, U.S.
Immigration and Customs
Enforcement; DAVID VENTURELLA,
Acting Director Immigration and
Customs Enforcement, MARKWAYNE
MULLIN,
U.S. Secretary of Homeland
Security; TODD BLANCHE,
Attorney
General of the United States.
Respondents.
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C.A. No. 26-727-MSM-AEM
ORDER
MARY S. MCELROY, United States District Judge.
Before the Court is Luis Andre Ephor Isidor’s Petition for Writ of Habeas
Corpus under 28 U.S.C. § 2241. ECF No. 1. The Petitioner is a native of Haiti who
entered the United States around June 1998 on a visitor visa and has remained in
the United States continuously since that time, despite having been subject to a final
order of removal since 2007.
	See ECF No. 4-3 at 3. 	He claims that his current
detention, which began when U.S. Immigration and Customs Enforcement (“ICE”)
officers arrested him on September 29, 2026, violates his rights under the Due
Process Clause of the Fifth Amendment. 	Respondents disagree, arguing that the
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Petitioner’s detention is authorized by 8 U.S.C. § 1231 and is otherwise lawful.
	See
ECF No. 4. 	For the following reasons, the Court agrees with the Petitioner, and
GRANTS his Petition for Writ of Habeas Corpus.
Section 1231 of the Immigration and Naturalization Act (“INA”) authorizes the
Department of Homeland Security (“DHS”) to detain noncitizens who have been
“ordered removed.”
	Johnson v. Arteaga Martinez, 596 U.S. 573, 575 (2022) (quoting
8 U.S.C. § 1231(a)). “After the entry of a final order of removal against a noncitizen,
the Government generally must secure the noncitizen’s removal during a 90-day
‘removal period.’”
	Id. (quoting 8 U.S.C. § 1231(a)(1)(A)). The removal period begins
on 	the 	latest 	of 	three 	dates: 	(1) 	“[t]he 	date 	the 	order 	of 	removal 	becomes
administratively final”; (2) “[i]f the removal order is judicially reviewed and if a court
orders a stay of the removal of the [noncitizen], the date of the court’s final order”; or
(3) “if the [noncitizen] is detained or confined (except under an immigration process),
the date the [noncitizen] is released from detention or confinement.” 	8 U.S.C. §
1231(a)(1)(B). 	“During the removal period, detention is mandatory.”
	Johnson v.
Guzman Chavez, 594 U.S. 523, 528 (2021) (citing 8 U.S.C. § 1231(a)(2)).
Once the removal period expires, the Government “may” detain only four
categories of noncitizens: “(1) those who are ‘inadmissible’ on certain specified
grounds; (2) those who are ‘removable’ on certain specified grounds; (3) those it
determines ‘to be a risk to the community’; and (4) those it determines to be ‘unlikely
to comply with the order of removal.’”
Arteaga-Martinez, 596 U.S. at 578–79 (quoting
8 U.S.C. § 1231(a)(6)). 	Unlike other provisions of the INA, Section 1231(a) does not
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require the Government to provide a noncitizen with a bond hearing before an
Immigration Judge where the Government bears the burden of justifying the
noncitizen's continued detention.
	Id. at 581;
Hernandez-Lara v. Lyons, 10 F.4th 19,
39 (1st Cir. 2021). 	Instead, ICE officials themselves are responsible for making
decisions regarding continued detention and supervised release.
Two regulations primarily govern their decision-making: 8 C.F.R. § 241.4 and
8 C.F.R. § 241.13.
	See Rombot v. Souza, 296 F. Supp. 3d 383, 387 (D. Mass. 2017);
Santamaria Orellana v. Baker, No. 25-1788-TDC, 2025 WL 2444087, at *4 (D. Md.
Aug. 25, 2025). 	The procedures set forth under these regulations “are intended to
provide noncitizens with fundamental due process protections that courts have found
to be constitutionally required.”
	Bulle v. Wesling, No. 26-CV-019-JJM-AEM, 2026
WL 183840, at *2 (D.R.I. Jan. 23, 2026). “Therefore, ICE violates a noncitizen's due
process rights when the agency re-detains them and fails to comply with these
revocation procedures.”
Id.
The governing regulations differ in a few important respects. 8 C.F.R. § 241.4
specifically applies to noncitizens who are detained beyond the 90-day removal period
(also known as the “post-removal-period”).
	Guzman Chavez, 594 U.S. at 529 (citing
8 C.F.R. § 241.4). 	Under this provision, if ICE wishes to continue detaining a
noncitizen beyond the post-removal-period, then ICE must conduct an individualized
“custody review.”
	Cruz v. Bondi, No. 25-cv-262-JJM-PAS, 2025 WL 3295485, at *2
(D.R.I. Nov. 26, 2025) (citing 8 C.F.R. § 241.4). 	ICE must follow several key
procedures, 	including: 	(1) 	conducting 	the 	initial 	custody 	review 	“prior 	to 	the
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expiration of the removal period” or “as soon as possible thereafter,”
id. 	(citing 8
C.F.R. §§ 241.4(h)(1), (k)(1)(i), (k)(2)(iv)); (2) “provid[ing] written notice to the
detainee about 30 days in advance of the pending records review” so that they may
submit information in support of their release,
id. (citing 8 C.F.R. § 241.4(h)(2)); and
(3) “forward[ing] by regular mail a copy of any notice or decision that is being served”
on the noncitizen to the noncitizen’s attorney, if they are represented,
id.
8 C.F.R. § 241.13 establishes “special review procedures” for a noncitizen
detained under Section 1231(a) after the removal period lapses who “has provided
good reason to believe there is no significant likelihood of removal . . . in the
reasonably foreseeable future.” 	8 C.F.R. § 241.13(a). The procedures begin once the
noncitizen “submits a written request providing reasons why there is no significant
likelihood the Government will remove him or her.”
	E.M.M. v. Almodovar, No. 25-
CV-08212 (MMG), 2025 WL 3077995, at *3 (S.D.N.Y. Nov. 4, 2025) (citing 8 C.F.R. §
241.13(d)(1)). 	“The written request triggers a formal review by the Headquarters
Post-Order Detention Unit (‘HQPDU’).”
	Id. (citing 8 C.F.R. §§ 241.13(e), (f)). “Once
the review concludes, the HQPDU issues a ‘written decision’ regarding ‘whether there
is a significant likelihood that the [noncitizen] will be removed in the reasonably
foreseeable future under the circumstances.’”
	Id. (quoting 8 C.F.R. § 241.13(g)). 	“If
that likelihood is low or not significant,” then the noncitizen is released subject to an
Order of Supervision.
Id. (citing 8 C.F.R. § 241.13(h))
Here, the Respondents have submitted no evidence that the Petitioner falls
within one of the four categories of noncitizens described in 8 U.S.C. § 1231(a)(6) or
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that they complied with their own regulations under either 8 C.F.R. § 241.4 or 8
C.F.R. § 241.13 before detaining him. 	Instead, they primarily argue that the
Petitioner’s current detention does not violate his due process rights because it has
not yet exceeded six months, which the Supreme Court found to be a “presumptively
reasonable” in
Zadvydas v. Davis, 533 U.S. 678, 701 (2001). 	But unlike
Zadvydas,
which involved the reasonableness of a noncitizen’s continued detention immediately
following 	his 	ordered 	removal, 	this 	case 	involves 	the 	reasonableness 	of 	the
Petitioner’s sudden detention
nineteen years after his final order of removal. The six-
month presumption—to the extent that it could be construed as superseding the due
process protections provided by ICE’s own regulations—is inapplicable here.
	Cf.
Nguyen v. Lyons, No. 25-CV-631-MSM-PAS, 2026 WL 125093, at *2 (D.R.I. Jan. 16,
2026);
Bulle, 2026 WL 183840, at *5;
Hall v. Nessinger, No. 25-CV-667-JJM-PAS,
2026 WL 18583, at *6 (D.R.I. Jan. 2, 2026).
The Respondents also invoke 8 U.S.C. § 1231(a)(1)(C) to contend that the
original 90-day period of the Petitioner’s detention may somehow be extended here.
That provision provides that “[t]he removal period shall be extended beyond a period
of 90 days and the alien may remain in detention during such extended period if the
alien fails or refuses to make timely application in good faith for travel or other
documents necessary to the alien’s departure or conspires or acts to prevent the
alien’s removal subject to an order of removal.” 8 U.S.C. § 1231(a)(1)(C). Respondents
do not explain why this provision applies here, given that the Petitioner’s removal
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period lapsed nineteen years ago without any attempt by DHS to extend it at that
time.
The 	Respondents 	have 	also 	failed 	to 	demonstrate, 	in 	response 	to 	the
Petitioner’s allegations to the contrary,
see ECF No. 1 ¶ 9, 39, his removal is
significantly likely in the reasonably foreseeable future. 	Instead, the Respondents
offer the threadbare assertion that “ICE has now arranged for his immediate removal
from the country.” ECF No. 4 at 4. But that assertion lacks any evidentiary support,
and is in fact undermined by one of the Respondents’ own exhibits, which instructs
the Petitioner to “[a]pply for a travel document/passport” from Haiti, implying that
such a document is not currently in ICE’s custody.
Given the above, the Court concludes that ICE failed to comply with its own
regulations in detaining the Petitioner, and that it consequently violated his rights
under the Due Process Clause. 	The Court therefore GRANTS the Petitioner’s
Petition for Writ of Habeas Corpus, ECF No. 1. 	Respondents are ORDERED to
immediately release the Petitioner, subject to reasonable conditions of supervision.
IT IS SO ORDERED.
_________________________________
Mary S. McElroy
United States District Judge
October 16, 2026
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