MAKUIZA v. STAMPER et al

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
FRANCOISE MAKUIZA, 	)
)
Petitioner 	)
)
v. 	) 	No. 2:26-cv-000044-LEW
)
DAVID WESLING, Acting Director 	)
of U.S. Immigration and Customs 	)
Enforcement Boston Field Office, 	)
TODD LYONS, Acting Director of 	)
U.S. Customs and Immigration 	)
Enforcement, et al., 	)
)
Respondents 	)
ORDER ON PETITION FOR WRIT OF HABEAS CORPUS
Before the Court is Petitioner Francoise Makuiza’s Petition for Writ of Habeas
Corpus (ECF No. 1). 	Petitioner seeks release from immigration detention. 	The federal
respondents oppose the Petition. For the following reasons, the Petition is granted.
BACKGROUND
Petitioner is a national of the Democratic Republic of Congo. She was admitted to
the United States in 2011 and overstayed her visa by more than 13 years. 	However,
Petitioner applied for asylum in 2016 and received work authorization in 2024. 	In June
2025, Petitioner received notice to attend an asylum interview in Boston, in July 2025.
Clearly, Petitioner is not “in the wind” and has an established place of residence in Maine,
where she lives with her husband and son.
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On the morning of January 23, 2026, Immigration and Customs Enforcement
(“ICE”) detained Petitioner while her husband was driving her to work in Portland, Maine.
According to ICE’s Assistant Field Office Director in Burlington, Massachusetts, “ICE
encountered Petitioner at or near Portland, Maine” and “[d]uring this encounter Petitioner
admitted that she overstayed her visa and did not have lawful status to be in the United
States.” Chan Decl. ¶ 9 (ECF No. 9-1). ICE took Petitioner into immediate custody and
transported her to Burlington, though it will have some difficulty locating a suitable facility
in which to house her due to the lack of bed space for female immigration detainees. Id.
¶¶ 10, 14.
Also on January 23, 2026, Petitioner filed in this Court her Petition for Writ of
Habeas Corpus, at approximately 4:30 p.m., and the Court issued, at approximately 5:00
p.m., its Emergency Order (ECF No. 4) staying her transfer out of the State of Maine.
Additionally, on January 24, the Court issued an Order to Show Cause (ECF No. 5) that
directed the Respondents to address the merits of the Petition no later than 5:00 p.m. on
January 27. 	See 28 U.S.C. § 2243. 	Respondents requested a one-day extension, which
was granted.
DISCUSSION
In their Return and Response (ECF No. 9), Respondents observe that due to the lack
of detention housing for female detainees in Maine, ICE loaded Petitioner for transport to
Burlington, Massachusetts, at approximately 4:30 p.m., and delivered her into custody in
Burlington, at approximately 6:15 p.m., where she remains today. See also Chan Decl. ¶
10. 	Respondents state that Petitioner is entitled to a bond hearing but has yet to request
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one through administrative channels. Chan Decl. ¶ 12 (“Petitioner is detained under § 1226
. . . and is bond eligible.”). 	However, Respondents also acknowledge that “ICE has
discretion to release ‘provided that the alien must demonstrate to the satisfaction of the
officer that such release would not pose a danger to property or persons, and that the alien
is likely to appear for any future proceeding.’” Return & Response at 4 (emphasis added)
(quoting 8 C.F.R. § 236.1(c)(8)). 	If ICE1 is not persuaded by Petitioner that her release
would not pose a danger to property or persons (there is no evidence that she has ever
presented such a danger), and that she would likely appear for future proceedings (she has
initiated her own asylum proceeding in the past and maintains a household in Maine), ICE
will maintain custody and deny Petitioner release on bond or conditional parole. 	If ICE
denies release, then Petitioner may request, orally or in writing, a review of ICE’s custody
determination by an immigration judge. 8 C.F.R. § 1003.19(a) & (b). If the immigration
judge denies relief, then Petitioner may appeal that determination to the Board of
Immigration Appeals. Id. § 1003.19(f).
The statute and the regulations cited by Respondents indicate the need for an arrest
warrant. See 8 U.S.C. § 1226(a) (“On a warrant issued by the Attorney General, an alien
may be arrested and detained pending a decision on whether the alien is to be removed
from the United States.”). 	However, Respondents make no mention of the requirement.
1 Technically, according to the INA, it is the Attorney General who may continue to detain, or release, a
noncitizen currently in custody, though this authority may be delegated. 8 U.S.C. § 1226(a). See also 8
C.F.R. §§ 236.1(c)(8), (d)(1) (“Any officer authorized to issue a warrant of arrest may, in the officer’s
discretion, release an alien … provided that the alien must demonstrate to the satisfaction of the officer
that such release would not pose a danger to property or persons, and that the alien is likely to appear for
any future proceeding.” (emphasis added)).
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Nor have they supported their Return and Response by filing any arrest warrant issued
either pre- or post-arrest. For reference, the regulation governing “apprehension, custody,
and detention” states:
(b) Warrant of arrest –
(1) In general. At the time of issuance of the notice to appear, or at any time
thereafter and up to the time removal proceedings are completed, the
respondent may be arrested and taken into custody under the authority of
Form I–200, Warrant of Arrest. A warrant of arrest may be issued only by
[certain] immigration officers . . . and may be served only by [certain]
immigration officers . . . .
8 C.F.R. § 236.1 (cross-referencing 8 C.F.R. § 287.5(e)(2) & (e)(3)). Although the list of
officers who can issue a warrant is long, on-the-ground ICE agents do not have the
authority to issue on-the-spot warrants unless someone higher up with authority has
authorized or delegated that authority. 8 C.F.R. § 287.5(e)(2).
When it comes to warrantless arrests, the INA does not inherently empower any and
all ICE officers to arrest without a warrant every noncitizen encountered in the course of
dragnet operations that target people based exclusively on alienage status. 	See 8 U.S.C.
§ 1357(a); 8 C.F.R. §§ 287.3(b), 287.8(c). 	But authorized officers2 can “interrogate any
alien or person believed to be an alien” concerning that person’s “right to be or to remain
in the United States,” and can arrest that person “if [the officer] has reason to believe that
the [person] . . . is in the United States in violation of any . . . law or regulation [regulating
the admission, exclusion, expulsion, or removal of aliens] and is likely to escape before a
2 The Court lacks information concerning the identities of the arresting officers or their training or
authorization to make arrests.
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warrant can be obtained for his arrest,” in which case the arrested individual must “be taken
without unnecessary delay for examination before an officer of the Service having
authority to examine aliens as to their right to enter or remain in the United States.” 	8
U.S.C.A. § 1357(a)(1), (2). 3 	But when arrests are made without a warrant, a custody
determination must ordinarily be made within 48 hours, accompanied by a notice to appear,
and in the case of continued custody a warrant will be issued post hoc. 8 C.F.R. § 287.3(d).4
The lawfulness of immigration detention is subject to review by, and unlawful
detention is subject to remedy in, a United States District Court under 28 U.S.C. § 2241.
The exercise of jurisdiction over this matter is proper because it presents a challenge to the
lawfulness of detention rather than the lawfulness of removal proceedings.5 See Demore
v. Kim, 538 U.S. 510, 516-17 (2003); Kong v. United States, 62 F.4th 608, 614 (1st Cir.
2023) (quoting Aguilar, 510 F.3d at 11); Hernandez-Lara v. Lyons, 10 F.4th 19, 33 (1st
3 This is the general authority to make a warrantless arrest of someone with Petitioner’s status. 	Other
provisions of the statute authorize warrantless arrests on other grounds.
4 In relation to taking the arrestee before an officer with the authority to “examine” aliens, presumably that
officer must evaluate the propriety of the warrantless arrest, including the assessment that the arrestee is
likely to escape in the absence of a post-hoc warrant and custody determination.
5 Habeas petitions are subject to a rule that the proper respondent is the person with custody of the
petitioner’s person, and generally the District Courts will have jurisdiction to grant habeas relief when a
petition is filed while the petitioner is in the respondent’s custody and within a court’s respective
jurisdiction. See Rumsfeld v. Padilla, 542 U.S. 426, 434-35 (2004) (explaining that the proper respondent
is the person having “immediate custody” of the petitioner, with the power produce the petitioner upon
order of the habeas court). 	Here, among the named respondents are persons with authority over ICE
operations in both Maine and Massachusetts. 	Furthermore, the record indicates that Petitioner was in
Maine, albeit in transit, when the Petition was filed, as it takes close to 45 minutes to travel overland from
Scarborough to Portsmouth, New Hampshire. This fact supports a finding that this Court has jurisdiction
to award relief in this matter. See Padilla, 542 U.S. at 441 (recognizing that a district court can retain
jurisdiction despite a transfer that occurs after filing); Ozturk v. Hyde, 136 F.4th 382, 392 (2d Cir. 2025);
Munoz-Saucedo v. Pittman, 789 F. Supp. 3d 387, 393 (D.N.J. 2025); Van Tran v. Hyde, No. 25-cv-12546,
2025 WL 3171210, at *4 (D. Mass. Nov. 13, 2025); Adriana M.Y.M. v. Easterwood, No. 26-cv-00213,
2026 WL 184721, at *2 (D. Minn. Jan. 24, 2026).
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Cir. 2021). The petitioner must prove illegal detention by a preponderance of the evidence.
See Aditya W.H. v. Trump, 2025 WL 1420131, at *7 (D. Minn. 2025) (collecting authority).
Based on the factual assertions contained in both the Petition and the Return and
Response, I find that Petitioner is entitled by the INA to be processed for detention purposes
under 8 U.S.C. § 1226(a). 	Respondents challenge the appropriateness of habeas relief,
however, because Petitioner “is free to seek a bond hearing at any time while in ICE
custody.” Return & Response at 7 (citing 8 C.F.R. § 1003.19). They argue that it would
be inappropriate for the Court to issue an order compelling relief that is available and has
not been denied administratively, and that the statutory scheme must be allowed to operate
in the first instance. Id. They cite Aguilar v. U.S. Immigration and Customs Enforcement,
510 F.3d 1 (1st Cir. 2007), and quote the following language:
[I]t is Congress—not the judiciary—that has the responsibility of prescribing
a framework for the vindication of [inalienable rights]. 	When Congress
speaks 	clearly 	and 	formulates 	a 	regime 	that 	satisfies 	constitutional
imperatives, the courts must follow Congress’s lead. 	In that sense, it does
not matter whether a court approves or disapproves of an agency’s modus
operandi.
Id. at 24. 6
6 Respondents are, in effect, advancing an administrative exhaustion challenge. Return & Response at 7. I am not
persuaded based on the presentation offered by their declarant, which fail to divulge appropriate action on a warrant.
“Although exhaustion of administrative remedies is absolutely required if explicitly mandated by
Congress, courts have more latitude in dealing with exhaustion questions when Congress has
remained silent.” Portela–Gonzalez v. Secretary of the Navy, 109 F.3d 74, 77 (1st Cir.1997) (internal
citation omitted).
Where the courts have latitude, a court may hear unexhausted claims in “ ‘circumstances in which
the interests of the individual weigh heavily against requiring administrative exhaustion.’ ” Id.
(quoting McCarthy v. Madigan, 503 U.S. 140, 145, 146 (1992)).
Flores-Powell v. Chadbourne, 677 F. Supp. 2d 455, 463 (D. Mass. 2010).
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I have no difficulty appreciating that the Department of Homeland Security or
Immigration and Customs Enforcement should be permitting to effectuate the orderly
application of federal immigration law prescribed by Congress. However, I question the
notion that the activities that have brought Petitioner and others to court via habeas
petitions have generally born the hallmark of orderliness or meticulous observation of
statutory details. 	Here, for example, 8 U.S.C. § 1226 establishes that Petitioner should
have been arrested “on a warrant,” even if that warrant issued after the fact. See Matter of
Yajure Hurtado, 29 I&N Dec. 216, 218-19 (BIA 2025); 8 U.S.C. § 1226(a) (“On a warrant
issued by the Attorney General, an alien may be arrested and detained pending a decision
on whether the alien is to be removed from the United States.”). Congress did not state in
the INA that an alien may be arrested and detained pending removal based exclusively on
alienage or noncitizen status. 	Furthermore, to the extent there is discretion to arrest and
detain a noncitizen pending removal proceedings, based on considerations of danger and
flight risk, an officer with authority needs to exercise that authority. Instead, these officers
appear to have deferred making a decision, and as a result, detainees occupy increasingly
hard-to-find bed spaces and then file habeas corpus petitions in the Unites States District
Courts based on the ambiguity of their detention status, a lack of timely and forthright
action on the part of those with authority to issue warrants and make front-line custody
determinations, and an administrative pattern and practice of transferring noncitizens to
detention facilities remote from their residences.
Petitioner has now been in custody for a week, and an authorized ICE officer should
have by now issued and served an arrest warrant based on an affirmative determination that
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ongoing detention is warranted, or else determined that release is appropriate and released
Petitioner. As a general proposition, detention without a warrant for in excess of 48 hours
is, minimally, problematic or suspect, and is, in any event, contrary to presumptions set out
in agency regulations. See 8 C.F.R. § 287.3(d); cf. Cnty. of Riverside v. McLaughlin, 500
U.S. 44, 56-57 (1991) (holding that jurisdictions that afford probable cause determinations
within 48 hours of an arrest will, as a general matter, comply with the Fourth Amendment,
and placing the burden on the Government to justify longer detentions).
The Fifth Amendment provides that “[n]o person shall be . . . deprived of life,
liberty, or property, without due process of law.” 	U.S. Const. am. V. 	The Fifth
Amendment applies to aliens facing removal proceedings. Reno v. Flores, 507 U.S. 292,
306 (1993). In Hernandez-Lara v. Lyons, the First Circuit held that “due process requires
the government to either (1) prove by clear and convincing evidence that [an alien] poses
a danger to the community or (2) prove by the preponderance of the evidence that she poses
a flight risk” in order to impose detention throughout the period of removal proceedings,
including appeals. 10 F.4th 19, 41 (1st Cir. 2021). That conclusion rested on a Mathews v.
Eldridge due process analysis for a non-criminal alien who unlawfully entered the United
States without being processed at the border. Id. at 27-35.
Petitioner entered the Unites States lawfully but remained longer than her visa
authorized. She is now plainly subject to a discretionary detention regime, as Respondents
admit. 	To determine whether civil detention violates a detainee’s Fifth Amendment due
process rights, courts apply the three-part test in Mathews v. Eldridge, 424 U.S. 319 (1976).
See Hernandez-Lara, 10 F.4th at 27-35. Under Mathews, courts weigh the following three
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factors: (1) “the private interest that will be affected by the official action;” (2) “the risk of
an erroneous deprivation of such interest through the procedures used, and the probable
value, if any, of additional or substitute procedural safeguards;” and (3) “the Government's
interest, including the function involved and the fiscal and administrative burdens that the
additional or substitute procedural requirement would entail.” 424 U.S. at 335.
The first factor supports relief. “The interest in being free from physical detention”
is “the most elemental of liberty interests.” Hamdi v. Rumsfeld, 542 U.S. 507, 529, 531
(2004). 	So does the second factor. 	An ICE officer with authority needs to step up and
assess the cause for the warrantless arrest and, if appropriate, issue an arrest warrant and
facilitate a prompt bond hearing. 	That is what the regulations call for, and that process
needed to be effectuated within the appropriate timeframe. The third factor also justifies
relief. 	The Government by regulation has assumed the burden of justifying its arrest
decisions and has simply neglected to do so in this case. Petitioner is not trying to burden
Respondents with any obligations not already placed on them by agency regulations.
In summary, although the Petition is drawn in terms of an entitlement to a bond
hearing under Hernandez-Lara, and demands such a hearing as a condition to ongoing
detention, see Petition ¶¶ 22, 23, 31 & Counts I–IV, in fact Petitioner is entitled to have an
authorized officer who works for ICE make a preliminary call as to the existence of cause
for her detention (without the need for recourse to an immigration judge), and, if detention
is deemed appropriate, to issue the missing warrant. That was supposed to have transpired
within 48 hours by regulation. See 8 C.F.R. § 287.3(d). It has now been a week and the
Respondents 	have 	offered 	nothing 	to 	support 	a 	finding 	of 	anything 	other 	than
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administrative indecision—and perhaps indifference—in that timeframe. 	Given the
circumstances, I grant habeas relief without a hearing, because Respondents have made no
effort whatsoever to provide a factual justification for Petitioner’s ongoing detention. Nor
have they articulated why additional time would be reasonable under the circumstances.7
Because Petitioner’s detention in excess of 48 hours violates the INA and governing
regulations absent a demonstration of reasonable cause for it, and because Petitioner’s
expectations are consistent with existing procedures from the standpoint of the Mathews v.
Eldridge factors, she should be released from custody.
CONCLUSION
For the foregoing reasons, the Petition for a writ of habeas corpus is GRANTED
(ECF No. 1). 	It is HEREBY ORDERED that Respondents will release Petitioner from
custody and confirm her release with the Court within two hours of her release.
This order has no effect on any decision to institute removal proceedings by proper
notice or, if the determination is based on valid ground in the future, to arrest and detain
Petitioner pursuant to legitimate process.
Petitioner’s Motion for Temporary Restraining Order (ECF No. 2) is DISMISSED
AS MOOT.
SO ORDERED.
Dated this 30th day of January, 2026.
/s/ Lance E. Walker
Chief U.S. District Judge
7 This case also arises in the context of a line of recent habeas corpus cases in which this Court has identified the
absence of a warrant as a ground for release when 8 U.S.C. § 1226(a) is at play. It is, therefore, to be expected that a
warrant would be filed in support of a return and response.
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