Cruz Herrera v. Nessinger et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
AUGUSTO CRUZ HERRERA,
Petitioner,
v.
MICHAEL NESSINGER,
Superintendent, Donald W. Wyatt
Detention Facility; DAVID T.
WESLING,
Acting Field Office
Director, U.S. I.C.E.; TODD M.
LYONS,
Senior Official Performing the
Duties of the Director, U.S. I.C.E.;
MARKWAYNE MULLIN,
Secretary of
Homeland Security; and TODD
BLANCHE,
Acting Attorney General of
the United States,
Respondents.
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No. 26-cv-237-JJM-PAS
ORDER
Augusto Cruz Herrera 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 or given a bond
hearing before an immigration judge (“IJ”) pursuant to 8 U.S.C. § 1226(a). ECF No. 1
at 7-8. 	Mr. Cruz Herrera also contends that he is a member of the class (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 2-3;
see Guerrero Orellana v. Moniz, 813 F.
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Supp. 3d 185 (D. 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.
In its Response, the Government states that the legal issues presented in this
case are like those recently addressed by this Court in
Tomas Elias v. Hyde, No. 25-
cv-540-JJM-AEM, 2025 WL 3004437 (D.R.I. Oct. 27, 2025). 	ECF No. 4 at 1-2.
Though 	the 	Government 	notes 	some 	disagreement 	with 	that 	decision,1 	it
1 Specifically, the Government cites recent decisions from the Eighth and Fifth
Circuits that are to the contrary.
See Avila v. Bondi, 170 F.4th 1128 (8th Cir. 2026);
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acknowledges that should the Court follow its reasoning in
Tomas Elias, it would
likely reach the same result in Mr. Cruz Herrera’s case.
Id. at 1-2.
With respect to Mr. Cruz Herrera’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. 4 at 1-2;
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. Cruz Herrera’s detention is unlawful, and
Buenrostro-Mendez v. Bondi, 166 F.4th 494 (5th Cir. 2026). Of course, those decisions
are not binding on this Court, and the Court does not find them to be persuasive. The
Court is instead persuaded by the Seventh Circuit’s position on the issue.
	See
Castanon-Nava v. U.S. Dep’t of Homeland Sec., 161 F.4th 1048, 1060-62 (7th Cir.
2025) (concluding that the Government was unlikely to succeed on the merits of its
argument that 8 U.S.C. § 1225(b)(2)(A) permits the mandatory detention of any
noncitizen who is unlawfully already in the United States).
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that he is entitled to immediate release and a bond hearing before an IJ. In addition,
for the same reasons stated by Judge Saylor, the Court finds that Mr. Cruz Herrera
is a member of the
Guerrero Orellana class.
See Martins de Oliveira, 2026 WL 74111,
at *2. Mr. Cruz Herrera’s petition is therefore GRANTED. ECF No. 1.
The Government is hereby ORDERED to release Augusto Cruz Herrera
immediately. 	Per its request, the Government is permitted to transfer Mr. Cruz
Herrera 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. 4
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. Cruz Herrera 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 v. Hyde, No. 26-cv-
093-JJM-PAS, 2026 WL 508811, at *3-4 (D.R.I. Feb. 24, 2026) (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. Cruz Herrera’s transfer to Burlington shall not in any way impede
his immediate release.
The Government is also ORDERED to provide Augusto Cruz Herrera 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. Cruz Herrera’s continued detention, the
Government must show why less restrictive alternatives to detention would be
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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. Cruz Herrera’s bond hearing, stating whether he has been granted
bond. 	If Mr. Cruz Herrera’s request for bond is denied, the Government shall state
the reason for that denial and whether Mr. Cruz Herrera 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
April 27, 2026
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