Summary
The United States District Court for the Western District of New York granted Omer Arpac’s 28 U.S.C. § 2241 petition to the extent he sought a bond hearing concerning his immigration detention. The Court ordered an immigration judge to conduct the hearing, placed the burden on the government to prove dangerousness or flight risk by clear and convincing evidence, and required consideration of less-restrictive alternatives and ability to pay.
Topics
Practice areas
Questions Presented
- Whether petitioner’s detention pending removal proceedings arose under 8 U.S.C. § 1225(b)(2) or 8 U.S.C. § 1226.
- Whether due process required petitioner to receive a bond hearing.
- Whether the government must prove dangerousness or flight risk by clear and convincing evidence at the bond hearing.
- Whether the immigration judge must consider less-restrictive alternatives, petitioner’s ability to pay, and alternative conditions of release.
Holdings
- A noncitizen who is present in the United States without having been admitted or paroled is not subject to mandatory detention under 8 U.S.C. § 1225(b)(2) when the circumstances instead place the detention under 8 U.S.C. § 1226; likewise, when parole has expired and a subsequent re-arrest is an independent detention decision rather than a continuation of the initial border encounter, the detention arises under § 1226.
- Petitioner was entitled to a bond hearing before an immigration judge, and continued detention after the hearing requires clear and convincing evidence that no condition or combination of conditions can reasonably ensure petitioner’s appearance and the safety of the community.
- At the bond hearing, the immigration judge must consider whether less-restrictive alternatives can reasonably address the government’s interests; if the government fails to meet its burden, any bond determination must account for petitioner’s ability to pay and alternative conditions of release.
Key quotations
“the government shall have the burden to demonstrate dangerousness or flight risk by clear and convincing evidence.” (Order ¶ 2)
“the IJ must find by clear and convincing evidence and make findings that no condition or combination of conditions of release can reasonably ensure Petitioner’s appearance and the safety of the community” (Order ¶ 4)
Factual background
Omer Arpac was detained by U.S. Immigration and Customs Enforcement at the Buffalo Federal Detention Facility in Batavia, New York. He was being held pending removal proceedings and alleged that his continued detention violated the United States Constitution. The court treated the detention as arising under 8 U.S.C. § 1226 rather than the mandatory-detention provision of 8 U.S.C. § 1225(b)(2), consistent with its prior decisions.
Procedural history
Arpac filed a § 2241 petition alleging that his detention in ICE custody violated the United States Constitution. The district court granted the petition to the extent it sought a bond hearing and ordered an immigration judge to conduct the hearing by February 9, 2026, subject to a reasonable continuance requested by petitioner.
Remand instructions
Respondents must provide petitioner with a bond hearing before an immigration judge on or before February 9, 2026, subject to a reasonable continuance requested by petitioner. The immigration judge must apply the clear-and-convincing-evidence standard, consider less-restrictive alternatives, and consider ability to pay and alternative release conditions. Respondents must file a status update by February 12, 2026.