Case Name in Immigration Case - Unavailable

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Juan Bautista Acero
Chuma
v. Civil No. 26-cv-159-LM-AJ
Opinion No. 2026 DNH 025 P
FCI Berlin, Acting
Warden et al.
O R D E R
Petitioner Juan Bautista Acero Chuma (“Acero”) brings this petition under 28
U.S.C. § 2241, alleging that his detention in connection with his removal
proceedings is unlawful. Specifically, he contends that the Immigration Judge (“IJ”)
who conducted his bond hearing violated his due process rights by failing to apply
the constitutionally mandated burden of proof to justify an order of detention under
8 U.S.C. § 1226(a). See Hernandez-Lara v. Lyons, 10 F.4th 19, 41 (1st Cir. 2021).
The government objects. Doc. no. 4. For the reasons that follow, and given the
highly circumscribed standard of review that this court is bound to apply in
evaluating Acero’s claim, the court must deny his petition.
STANDARD OF REVIEW
This court may grant a writ of habeas corpus to a person held “in custody in
violation of the Constitution or laws or treaties of the United States.” 28 U.S.C.
§ 2241(c)(3). The petitioner has the burden of proving that his confinement is
unlawful. Espinoza v. Sabol, 558 F.3d 83, 89 (1st Cir. 2009).
Case 1:26-cv-00159-LM-AJ Document 7 Filed 03/25/26 Page 1 of 11

2
BACKGROUND1
Acero unlawfully entered the United States in 2002. He was not apprehended
or encountered at the border. At some point, he began living in the Lowell,
Massachusetts area, where he has children, family, and friends. He also has regular
employment as a subcontractor and a stable residence.
Acero has a criminal record. He has been charged at least five times with
driving without a license or on a suspended license. See doc. no. 1-6 at 25-26. He has
missed multiple court dates in connection with these offenses, and has had bench
warrants issued as a result. Id. at 25. One of these driving charges resulted in a
sentence of probation. Acero was twice found to have violated the terms of that
probation. Acero has also been charged with assault and battery. He missed a court
date in connection with that charge as well. Finally, Acero was charged with
disturbing the peace after allegedly refusing an officer’s instruction to end a noisy
party at his residence in the early morning hours.
Immigration authorities first encountered Acero on October 9, 2012. After he
was stopped by the New Hampshire State Police for driving-related reasons and
failed to produce documents confirming his identity, the police contacted
Immigration and Customs Enforcement (“ICE”) for assistance. ICE responded and
1 The following facts are drawn from Acero’s petition and the attachments
thereto, as well as the IJ’s written memorandum of decision. See doc. nos. 1 through
1-6; doc. no. 4-1. All facts recited herein were available to the IJ at the time of the
bond hearing. See doc. nos. 1-4 through 1-6; doc. no. 4-1 at 2. They are framed in the
light most favorable to the IJ’s decision. Cf. United States v. Torres Monje, 989 F.3d
25, 27 (1st Cir. 2021) (explaining that, on a challenge to the legal sufficiency of the
evidence to support a criminal conviction, the court reviews the evidence in the light
most favorable to the verdict).
Case 1:26-cv-00159-LM-AJ Document 7 Filed 03/25/26 Page 2 of 11

3
learned from Acero that he had unlawfully entered the country and that he claimed
no right to lawfully remain in the United States. ICE therefore arrested Acero and
placed him in removal proceedings. That same month, an IJ released Acero on
bond.2
For reasons that are not clear, Acero’s removal proceedings did not conclude
until August of 2024. That month, an IJ issued an order finding Acero inadmissible
and therefore ordered him removed. The IJ also denied Acero’s request for
cancellation of removal as well as his request for voluntary departure from the
United States. Acero has appealed the removal order to the Board of Immigration
Appeals (“BIA”). That appeal remains pending.
At some point after filing his appeal to the BIA, ICE took Acero into custody.3
In December 2025, Acero requested and received a bond hearing before an IJ at
which the IJ considered his release under § 1226(a). After weighing Acero’s length
of residence in the United States, his ties to the community, and several letters of
support attesting to his good character, the IJ found based on Acero’s criminal
record and his order of removal that his release posed a risk of flight that no
amount of bond or alternative to detention could sufficiently mitigate. Therefore,
the IJ denied Acero’s request for release on bond.
2 Acero accrued several of the aforementioned criminal charges while released
on this bond.
3 The date of Acero’s incarceration is unclear from the materials submitted by
the parties to this court.
Case 1:26-cv-00159-LM-AJ Document 7 Filed 03/25/26 Page 3 of 11

4
DISCUSSION
A noncitizen who is “in the country” may be detained during the pendency of
removal proceedings pursuant to 8 U.S.C. § 1226.4 Jennings v. Rodriguez, 583 U.S.
281, 289 (2018). Unless ineligible for release under § 1226(c), the Department of
Homeland Security (“DHS”) has authority to release noncitizens facing removal
proceedings on “bond of at least $1,500” or “conditional parole.” 8 U.S.C.
§ 1226(a)(2); see id. § 1226(c) (requiring detention for noncitizens that have
committed specified criminal offenses). Alternatively, DHS may elect to detain the
noncitizen pending the outcome of removal proceedings. Id. § 1226(a).
An ICE officer “makes the initial detention determination for noncitizens
subject to detention under section 1226(a).” Hernandez-Lara, 10 F.4th at 26 (citing
8 C.F.R. § 236.1(c)(8)). Section 1226’s implementing regulations provide that, if the
noncitizen disagrees with the officer’s detention decision, he may appeal that
decision to an IJ, who may then “exercise the authority” in § 1226(a) to detain or
release the noncitizen “and determine the amount of bond, if any, under which the
[noncitizen] may be released.” 8 C.F.R. § 236.1(d)(1). Either party may appeal the
IJ’s bond determination to the BIA. Id. § 236.1(d)(3). But the BIA’s ruling may not
be further appealed to the relevant court of appeals. Romero v. Hyde, 795 F. Supp.
3d 271, 278 (D. Mass. 2025). Instead, a petition for a writ of habeas corpus, filed in
the appropriate district court, is the only mechanism by which a noncitizen may
4 Because his removal order is not yet final, Acero is not currently subject to
post-final-order detention under 8 U.S.C. § 1231(a).
Case 1:26-cv-00159-LM-AJ Document 7 Filed 03/25/26 Page 4 of 11

5
seek judicial review of an IJ’s bond decision.5 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); see also Fed. R. App. P. 22(a) (“An application for a writ of habeas
corpus must be made to the appropriate district court.”).
“Section 1226(a) is silent as to what burden of proof applies in bond hearings
and who bears that burden.” Hernandez-Lara, 10 F.4th at 26. In Hernandez-Lara,
the First Circuit held that, to detain a noncitizen under § 1226(a), “due process
requires the government to either (1) prove by clear and convincing evidence that
[the noncitizen] poses a danger to the community or (2) prove by a preponderance of
the evidence that [the noncitizen] poses a flight risk.” Id. at 41.
Although 8 U.S.C. § 1226(e) bars judicial review of an IJ’s “discretionary
judgment regarding the application of this section,” this court and many others
have recognized that IJs do not have discretion to fail to apply the burden of proof
that due process requires. Mayancela Mayancela v. FCI Berlin, Warden, Civ. No.
25-cv-348-LM-TSM, 2025 WL 3215638, at *5 (D.N.H. Nov. 18, 2025); see, e.g., Diaz-
Calderon v. Barr, 535 F. Supp. 3d 669, 676 (E.D. Mich. 2020); Rubio-Suarez v.
Hodgson, Civ. No. 20-10491-PBS, 2020 WL 1905326, at *2-3 (D. Mass. Apr. 17,
2020); see also Ozturk v. Trump, 777 F. Supp. 3d 26, 34 n.1 (D. Mass. 2025) (“[T]he
First Circuit has held that § 1226(e) does not strip district courts’ ability to review
habeas petitions challenging the constitutionality of a petitioner’s detention.” (citing
5 If the district court denies the noncitizen’s habeas petition, the noncitizen
may then appeal that denial to the relevant court of appeals. Fed. R. App. P. 22(a).
Case 1:26-cv-00159-LM-AJ Document 7 Filed 03/25/26 Page 5 of 11

6
Hernandez-Lara, 10 F.4th at 33-34)). Thus, a claim that an IJ violated a
noncitizen’s due process rights by failing to apply the constitutionally mandated
burden of proof set forth in Hernandez-Lara is cognizable in a habeas petition
despite § 1226(e). Mayancela, 2025 WL 3215638, at *5.
However, while this court has authority to consider such a claim, that
authority is “limited.” Diaz Ortiz v. Smith, 383 F. Supp. 3d 140, 143 (D. Mass.
2019). To obtain habeas relief, Acero must show that the IJ “failed to place the
burden of proof on the Government” to either show dangerousness by clear and
convincing evidence or flight risk by a preponderance of the evidence. Id. To make
this showing, Acero can either (1) demonstrate that the evidence adduced at the
bond hearing was insufficient as a matter of law for a reasonable IJ to find flight
risk by a preponderance of the evidence or (2) point to the language of the IJ’s
opinion to show that the IJ simply relied on an incorrect legal standard. Id.; accord,
e.g., Massingue v. Streeter, No. 3:19-cv-30159-KAR, 2020 WL 1866255, at *4 (D.
Mass. Apr. 14, 2020); Hechavarria v. Whitaker, 358 F. Supp. 3d 227, 240 (W.D.N.Y.
2019).
Acero fails to demonstrate that the IJ who oversaw his December 2025 bond
hearing applied an incorrect burden of proof. The IJ’s memorandum of decision
shows that, at the time of the bond hearing, she understood she had discretion to
order Acero’s release pursuant to § 1226(a). See doc. no. 4-1 at 2-3 & n.2.6 The IJ
6 After the bond hearing and based upon further review, the IJ found in her
memorandum of decision that she should have held at the December 2025 hearing
Case 1:26-cv-00159-LM-AJ Document 7 Filed 03/25/26 Page 6 of 11

7
also recognized that, to deny bond, the government “must prove by clear and
convincing evidence that the [noncitizen] poses a danger to the community or prove
by a preponderance of the evidence that the [noncitizen] poses a risk of flight.” Id. at
2 (citing Hernandez-Lara, 10 F.4th at 41). She also noted factors typically
significant in determining dangerousness and flight risk, such as the person’s ties to
the community, employment history, criminal record, and any history of flight or
past failures to appear for court proceedings. Thus, this is not a circumstance in
which it is “clear from the [IJ’s] opinion itself that [she] simply did not apply the
correct standard to the facts.”7 Massingue, 2020 WL 1866255, at *4 (quoting
Hechavarria, 358 F. Supp. 3d at 240).
that she lacked jurisdiction to consider Acero’s release pursuant to the BIA’s decision
in In re Yajure Hurtado, 29 I. & N. Dec. 216 (BIA 2025). See doc. no. 4-1 at 3 n.2.
However, her memorandum of decision memorializing her findings from the
December 2025 hearing makes clear that, at the time of the hearing, she understood
she had authority to release Acero under § 1226(a) if she found that the government
failed to demonstrate that Acero’s release would pose a risk of flight or danger to the
community. See id. at 2-3. Her memorandum also shows that she denied Acero bond
at the December 2025 hearing because she found that the government had
demonstrated by a preponderance of the evidence that Acero posed a flight risk, not
because she lacked jurisdiction to release him. Thus, the IJ’s memorandum of decision
does not show that she relied upon an incorrect legal standard at the December 2025
hearing.
7 Acero suggests in his habeas petition that the IJ may have required him to
disprove flight risk, rather than requiring the government to affirmatively prove
flight risk. The court does not understand Acero to argue that the IJ did, in fact, place
the burden of proof on him instead of the government. See doc. no. 1 at 6 (habeas
petition) (“To the extent the [IJ] placed the burden on Petitioner to demonstrate that
he is not a flight risk, rather than requiring [the government] to prove that he is, the
hearing violated the Due Process Clause as interpreted in Hernandez-Lara . . . .”); id.
at 6-7 (“If the [IJ] required Petitioner to disprove flight risk or failed to clearly require
[the government] to carry its burden, the resulting detention violates the Fifth
Case 1:26-cv-00159-LM-AJ Document 7 Filed 03/25/26 Page 7 of 11

8
Moreover, based on the totality of the evidence before the IJ, a reasonable
jurist could have concluded by a preponderance of the evidence that Mayancela
posed a flight risk. As the IJ recognized, significant considerations in evaluating
flight risk include prior instances of missed court dates and a noncitizen’s criminal
record. The IJ had evidence before her that Acero had been charged at least five
times with driving without a license or on a suspended license, and that he had
missed several court dates in connection with those charges. One of those charges
resulted in a sentence of probation, and a judicial officer twice found that Acero
violated the terms of his probation. The IJ also had evidence that Acero had been
charged with an assault, and that he also was charged with disturbing the peace
after allegedly refusing to comply with an officer’s lawful demands. Acero accrued
several of these criminal charges and failures to appear after being released on bond
by an IJ in October 2012. In short, the evidence adduced at the December 2025 bond
hearing permitted a reasonable IJ to conclude by a preponderance of the evidence
that Acero has a history of failing to appear for court proceedings and “non-
compliance with the laws of the United States.” Doc. no. 4-1 at 4.
In addition to his criminal record, the IJ highlighted that Acero was subject
to an order of removal. Although the IJ did not explicitly state the significance of
the removal order, the court draws the reasonable inference that the IJ concluded
that Acero had an incentive not to appear for future proceedings at which his
Amendment.”). To the extent Acero intended to so argue, the court disagrees with
that argument given the evidence discussed above that the IJ understood the
allocation of the burden of proof required by Hernandez-Lara.
Case 1:26-cv-00159-LM-AJ Document 7 Filed 03/25/26 Page 8 of 11

9
removal order could be effectuated or upheld. See Mayancela, 2025 WL 3215638,
at *6; cf. López-Gómez v. Bondi, 154 F.4th 1, 4 (1st Cir. 2025) (“[T]he BIA need not
spell out every last detail of its reasoning where the logical underpinnings are clear
from the record . . . .”).
To be sure, Acero presented substantial evidence that his release would pose
little flight risk.8 He presented evidence that he has two U.S.-citizen children, whom
he financially supports and sees regularly. He also presented evidence that he has a
stable career and residence, and that he is well-regarded by his employers and
landlord. Numerous family members, friends, and community members authored
letters of support attesting to Acero’s outstanding character. And, while Acero had
prior failures to appear for criminal proceedings, there was no evidence that Acero
had ever failed to appear for a hearing in connection with his removal proceedings.
Finally, Acero provided evidence of his financial means and willingness to pay a
bond, as well as a letter from a bond sponsor who pledged to ensure that Acero
attended all hearings in connection with his removal proceedings.
The question before this court is not whether it would have ordered Acero’s
release on bond had it been in the IJ’s position to apply Hernandez-Lara in the first
8 Acero asserts that the IJ failed to consider this evidence. The IJ’s
memorandum of decision does not support this assertion. Her memorandum of
decision explicitly acknowledged and discussed Acero’s evidence, noting that he “does
have a length of residence in the United States, he has a fixed address, and he has
family ties, including U.S. Citizen children,” as well as “several letters of support
attesting to his character.” Doc. no. 4-1 at 4. The IJ further explained in her
memorandum that she “weighed this” evidence against his criminal record and his
order of removal, and ultimately found that the government “met its burden to show
by a preponderance of the evidence that [Acero] poses a flight risk.” Id.
Case 1:26-cv-00159-LM-AJ Document 7 Filed 03/25/26 Page 9 of 11

10
instance. Rather, the court may only consider whether the evidence submitted at
the bond hearing was insufficient as a matter of law to find flight risk by a
preponderance of the evidence. Although there was substantial evidence before the
IJ that Acero’s release posed little flight risk (or at least that any flight risk could
have been sufficiently mitigated by a meaningful bond amount or conditions of
release), there was also legally sufficient evidence to draw the contrary conclusion.
Because a reasonable jurist could have found, based on Acero’s criminal record,
history of failure to appear for criminal proceedings, and his order of removal, that
his release posed an unacceptable risk of flight by a preponderance of the evidence,
the court is compelled to find that the IJ’s determination did not violate Acero’s due
process rights.9
9 Acero also asserts that, regardless of whether the IJ applied the required
burden of proof, her flight risk finding is simply erroneous. The government argues
that the court lacks jurisdiction to consider this claim pursuant to § 1226(e). Acero
responds that, in light of the Supreme Court’s decision in Wilkinson v. Garland, 601
U.S. 209 (2024), the court does have jurisdiction to consider his claim and that the
court should evaluate the IJ’s finding under an abuse-of-discretion standard of
review. However, Acero cites no authority in support of his contention that abuse-of-
discretion is the standard of review applicable to the IJ’s finding. This is despite the
court’s endorsed order directing the parties to brief the applicable standard of review.
See Endorsed Order of Mar. 11, 2026. The court finds that, even assuming it has
jurisdiction to consider a claim that the IJ erred in finding a flight risk regardless of
whether she applied the correct burden of proof, Acero has failed to demonstrate that
the standard of review applicable to such a claim is meaningfully different from the
standard of review applicable to his due process claim. Accordingly, the court rejects
Acero’s Wilkinson claim for the same reason it rejects his due process claim.
Case 1:26-cv-00159-LM-AJ Document 7 Filed 03/25/26 Page 10 of 11

11
CONCLUSION
Acero’s petition (doc. no. 1) is denied. The clerk is directed to enter judgment
and close the case.
SO ORDERED.
__________________________
Landya McCafferty
United States District Judge
March 25, 2026
cc: Counsel of Record
Case 1:26-cv-00159-LM-AJ Document 7 Filed 03/25/26 Page 11 of 11