Case: Barbosa Da Cunha v. Moniz

Da Cunha v. Freden

Barbosa Da Cunha v. Freden

U.S. Court of Appeals for the Second Circuit

Da Cunha v. Moniz

U.S. Court of Appeals for the Second Circuit

PETITION for Writ of Habeas Corpus (2241) Filing fee: $ 5, receipt number AMADC-11264825 Fee status: Filing Fee paid., filed by Barbosa Da Cunha. (Attachments: # 1 Civil Cover Sheet, # 2 Category Form)(Fried, Syrie) [Transferred from mad on 10/2/2025.] (Entered: 09/26/2025)

District Judge Leo T. Sorokin: ORDER entered. EMERGENCY ORDER CONCERNING STAY OF TRANSFER OR REMOVAL. (CM) [Transferred from mad on 10/2/2025.] (Entered: 09/26/2025)

ELECTRONIC NOTICE of Case Assignment. Judge Indira Talwani assigned to case. If the trial Judge issues an Order of Reference of any matter in this case to a Magistrate Judge, the matter will be transmitted to Magistrate Judge Paul G. Levenson. (CM) [Transferred from mad on 10/2/2025.] (Entered: 09/29/2025)

General Order 19-02, dated June 1, 2019 regarding Public Access to Immigration Cases Restricted by Federal Rule of Civil Procedure 5.2(c). (CAM) [Transferred from mad on 10/2/2025.] (Entered: 09/29/2025)

Judge Indira Talwani: ORDER entered. ORDER CONCERNING SERVICE OF PETITION AND STAY OF TRANSFER OR REMOVAL. (CAM) (Additional attachment(s) added on 9/29/2025: # 1 Appendix) (CAM). [Transferred from mad on 10/2/2025.] (Entered: 09/29/2025)

Copies of 1 Petition for Writ of Habeas Corpus (2241), 4 General Order 19-02 and 5 Service Order - 2241 Petition sent to matthew.lyons@usdoj.gov, USAMA.CivilProcess@usdoj.gov, and leah.foley@usdoj.gov. on 9/29/2025. (CAM) [Transferred from mad on 10/2/2025.] (Entered: 09/29/2025)

NOTICE of Appearance by Julio Cortes del Olmo on behalf of Ricardo Aparecido Barbosa Da Cunha (Cortes del Olmo, Julio) [Transferred from mad on 10/2/2025.] (Entered: 09/30/2025)

AMENDED Petition for Writ of Habeas Corpus (2241) . (Cortes del Olmo, Julio) Modified text on 9/30/2025 (SEC). [Transferred from mad on 10/2/2025.] (Entered: 09/30/2025)

NOTICE of Appearance by Rayford A. Farquhar on behalf of Patricia Hyde, Michael Krol, Todd M Lyons, Antone D. Moniz, Kristi Noem (Farquhar, Rayford) [Transferred from mad on 10/2/2025.] (Entered: 09/30/2025)

Assented to MOTION to Transfer Case to Western District of New York. by Patricia Hyde, Michael Krol, Todd M Lyons, Antone D. Moniz.(Farquhar, Rayford) [Transferred from mad on 10/2/2025.] (Entered: 10/01/2025)

Judge Indira Talwani: ELECTRONIC ORDER granting Assented to Motion to Transfer Habeas Petition to the United States District Court for the Western District of New York 10 . (SEC) [Transferred from mad on 10/2/2025.] (Entered: 10/02/2025)

Case transferred to Western District of New York. Original file certified copy of transfer order and docket sheet sent to Clerk in that district. (SEC) [Transferred from mad on 10/2/2025.] (Entered: 10/02/2025)

Case transferred in from District of Massachusetts; Case Number 1:25-cv-12797. (Entered: 10/02/2025)

Case assigned to Hon. Meredith A. Vacca. Notification to Chambers of electronic case transfer. (CGJ)

Notice of Availability of Magistrate Judge: A United States Magistrate of this Court is available to conduct all proceedings in this civil action in accordance with 28 U.S.C. 636c and FRCP 73. The Notice, Consent, and Reference of a Civil Action to a Magistrate Judge form (AO-85) is available for download at http://www.uscourts.gov/services-forms/forms. (CGJ)

NOTICE of Appearance by Paul J O'Dwyer on behalf of Ricardo Aparecido Barbosa Da Cunha (O'Dwyer, Paul) (Entered: 10/03/2025)

Amended PETITION for Writ of Habeas Corpus, filed by Ricardo Aparecido Barbosa Da Cunha.(O'Dwyer, Paul) (Entered: 10/03/2025)

ORDER TO SHOW CAUSE. File Pro Hac Vice Admission/secure local counsel by 10/7/2025. Second Amended Petition due by 10/7/2025. Status Conference (virtual) set for 10/8/2025 10:00 AM before Hon. Meredith A. Vacca. Respondent Responses due by 10/14/2025. Petitioner Reply due by 10/16/2025. See Order for complete details. Signed by Hon. Meredith A. Vacca on 10/3/2025. (Attachments: # 1 Amended Petition)(DMK)This was mailed to: Syrie D. Fried, Julio Cortes del Olmo, Rayford A. Farquhar. (Entered: 10/03/2025)

1 Amended Petition

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NOTICE of Appearance by Adam A. Khalil on behalf of Patricia Hyde, Michael Krol, Todd M. Lyons, Antone D. Moniz, Kristi Noem (Khalil, Adam) (Entered: 10/06/2025)

Letter filed by Patricia Hyde, Michael Krol, Todd M. Lyons, Antone D. Moniz, Kristi Noem stipulating to custodians. (Khalil, Adam) (Entered: 10/06/2025)

Minute Entry for proceedings held before Hon. Meredith A. Vacca: Status Conference held on 10/8/2025. Appearances: Paul J. O'Dwyer, Esq., on behalf of Plaintiff; Adam A. Khalil, AUSA, on behalf of Defendants. Parties advise Court of status and immigration proceedings. Response and Reply deadlines remain in effect as previously ordered in 16 . Show Cause Hearing set for 10/20/2025 02:00 PM in via video conference before Hon. Meredith A. Vacca. (Court Reporter Joony Odenbach.) (KSP) (Entered: 10/08/2025)

TEXT ORDER. On October 6, 2025, Respondent's counsel stipulated to substitution of Joseph E. Freden, Deputy Field Office Director, U.S. Immigration and Customs Enforcement as Petitioner's present custodian. ECF No. 18. Further, the Court granted Defendant's counsel's oral motion at the October 8, 2025 status conference to the termination of attorneys Syrie D. Fried and Julio Cortes del Olmo as attorneys to be noticed on this case.Accordingly, the Clerk of Court is directed to substitute "Joseph E. Freden, Deputy Field Office Director, U.S. Immigration and Customs Enforcement" for "John Doe, Facility Director, Buffalo Detention Facility" on the docket, and update the docket to reflect that Mr. Freden is a "Respondent" not a "Defendant." Further, Attorney Fried and Attorney Cortes del Olmo are to be terminated as attorneys to be noticed on this case.SO ORDERED. Signed by Hon. Meredith A. Vacca on 10/10/2025. (JCL)Clerk to Follow up Modified on 10/10/2025 to fix a typo: the reference to "ECF No. 81" was changed to "ECF No. 18." (JCL). (Entered: 10/10/2025)

MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM by Pamela Bondi, Joseph E. Freden, Todd M. Lyons, Kristi Noem. (Attachments: # 1 Memorandum in Support)(Khalil, Adam) (Entered: 10/14/2025)

Letter filed by Pamela Bondi, John Doe, Joseph E. Freden, Todd M. Lyons, Kristi Noem with immigration documents. (Khalil, Adam) (Entered: 10/16/2025)

MEMORANDUM in Opposition re 21 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by Ricardo Aparecido Barbosa Da Cunha. (Attachments: # 1 Exhibit ICE July 2025 guidance regarding detention, # 2 Exhibit Pages 1 - 9 of Supreme Court argument transcript in Jennings v Rodriguez, 583 U.S. 281 (2018))(O'Dwyer, Paul) (Entered: 10/16/2025)

Minute Entry for proceedings held before Hon. Meredith A. Vacca: Show Cause Hearing held virtually via Teams on 10/20/2025. Appearances: Paul J. O'Dwyer, Esq., on behalf of Plaintiff; Adam A. Khalil, AUSA, on behalf of Defendants. The Court hears oral arguments from both parties. The Court reserves decision and will issue a written decision at a future date. (Court Reporter Joony Odenbach.) (KSP) (Entered: 10/20/2025)

TEXT ORDER denying 21 Respondent's Motion to Dismiss for Failure to State a Claim and granting Petitioner's request for a bond hearing before an Immigration Judge.On October 3, 2025, Petitioner filed his First Amended Petition for Writ of Habeas Corpus, contending, inter alia, that his detention is unlawful under 8 U.S.C. 1226(a) because he "has not been, and will not be, provided with a bond hearing by Respondents as required by law." ECF No. 15 (citing 8 C.F.R. 236.1(a) and 1003.19(a)-(f)). The Court held a status conference on October 8 at which the parties agreed that the matter involved only legal issues and did not require Petitioner's physical presence. ECF No. 19. Thereafter, Respondents moved to dismiss the First Amended Petition, arguing that Petitioner is lawfully detained under 8 U.S.C. 1225(b)(2)(A), and therefore not entitled to a bond hearing. ECF No. 21. The Court heard oral argument from counsel for both parties on October 20, 2025. ECF No. 24. After considering the parties' papers and the arguments of counsel, the Court concludes that Petitioner is being detained under 8 U.S.C. 1226(a). Furthermore, because all three of the factors set forth in Mathews v. Eldridge, 424 U.S. 319 (1976) weigh in Petitioner's favor, the Court finds that the denial of a bond hearing violates his procedural due process rights. Therefore, Petitioner is entitled to a bond hearing. See 8 U.S.C. 1226(a) (stating that non-citizens detained under 8 U.S.C. 1226(a) may be released "on... bond" or "conditional parole"); 8 C.F.R. 1236.1(d)(1); 8 C.F.R. 1003.19(a) ("Custody and bond determinations made by the service pursuant to 8 CFR part 1236 may be reviewed by an Immigration Judge pursuant to 8 CFR part 1236."). For the reasons stated above and in a forthcoming written decision that will fully discuss the Court's rationale, Respondents' Motion to Dismiss 21 is denied and the First Amended Petition for a Writ of Habeas Corpus 15 is granted to the extent that Respondents shall conduct a constitutionally adequate bond hearing within ten (10) days of the date of this order, where the Government bears the burden of proving by clear and convincing evidence that Petitioner's continued detention is justified based on his dangerousness to the community or risk of flight. Velasco Lopez v. Decker, 978 F.3d 842, 855-57 (2d Cir. 2020). If such bond hearing is not conducted within ten (10) days of the date of this order, Petitioner shall be released from custody. Respondents shall file a status report no later than November 7, 2025 confirming that Petitioner has either been granted a bond hearing within ten (10) days or released from custody, in compliance with this Order.SO ORDERED. Signed by Hon. Meredith A. Vacca on 10/20/2025. (JCL) (Entered: 10/20/2025)

STATUS REPORT re bond hearing by Pamela Bondi, John Doe, Joseph E. Freden, Todd M. Lyons, Kristi Noem. (Khalil, Adam) (Entered: 10/28/2025)

STATUS REPORT of Petitioner's non-release from ICE custody by Ricardo Aparecido Barbosa Da Cunha. (Attachments: # 1 Exhibit IJ Bond Order, # 2 Exhibit ICE bond portal stating that bond order will not be honored, # 3 Exhibit ICE bond portal stating that no bond payment requests will be accepted)(O'Dwyer, Paul) (Entered: 10/28/2025)

TEXT SCHEDULING ORDER. Status conference set for 10 AM on Thursday, October 30, 2025 through Microsoft Teams. Access information to be sent to counsel by email. SO ORDERED. Signed by Hon. Meredith A. Vacca on 10/29/2025. (JCL) (Entered: 10/29/2025)

STATUS REPORT confirming release by Ricardo Aparecido Barbosa Da Cunha. (O'Dwyer, Paul) (Entered: 10/29/2025)

TEXT ORDER CANCELING STATUS CONFERENCE. Petitioner's status report of October 29, 2025 indicates that a conference is no longer required in this matter. Accordingly, the status conference scheduled for 10/30/2025 at 10 AM is canceled. SO ORDERED. Signed by Hon. Meredith A. Vacca on 10/30/2025. (JCL) Modified on 10/31/2025 to correct a spelling error. (JCL) (Entered: 10/30/2025)

DECISION AND ORDER memorializing its reasons for denying Respondent's motion to dismiss [ECF No. 21] and granting Petitioner's application for habeas relief [ECF No. 1] to the extent that the Court finds he was detained under 8 U.S.C. 1226(a) and therefore entitled to a bond hearing under the relevant regulations.The Court notes that consistent with the Court's text order (ECF No. 25), a bond hearing was held for Petitioner on October 28, 2025. ECF No. 26. After some initial difficulty with the process of posting bond, Petitioner's counsel confirmed that Petitioner was released on bond as of October 29, 2025. ECF No. 29. Therefore, the Clerk of Court is directed to close this action. SO ORDERED. Signed by Hon. Meredith A. Vacca on 11/25/2025. (JCL)Clerk to Follow up (Entered: 11/25/2025)

NOTICE OF APPEAL as to 25 Order on Motion to Dismiss for Failure to State a Claim, 31 Decision and Order, by Pamela Bondi, John Doe, Joseph E. Freden, Todd M. Lyons, Kristi Noem. (Khalil, Adam) (Entered: 12/11/2025)

Within 14 days of filing the Notice of Appeal, the appellant is required to electronically file with the District Court an index of filed documents it wishes the Court of Appeals to consider, called Designation of Record on Appeal. After receipt, the Clerks Office will certify and transmit the index to the Circuit.Pursuant to Local Rule 12.1 of the US Court of Appeals for the Second Circuit, Forms C and D must be completed within 14 days after the filing of a notice of appeal. Forms C and D can be obtained at www.ca2.uscourts.gov. (TF)

DESIGNATION of Record on Appeal by Pamela Bondi, John Doe, Joseph E. Freden, Todd M. Lyons, Kristi Noem re 32 Notice of Appeal CLERK TO FOLLOW UP (Khalil, Adam) (Entered: 12/16/2025)

CLERKS CERTIFICATE filed and electronically sent to Court of Appeals re 33 DESIGNATION of Record on Appeal. (TF) (Entered: 12/17/2025)