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govinfo:USCOURTS-njd-2_26-cv-01168-0
DISTRICT OF NEW JERSEY
ELMER GONZALEZ ALTAMIRANO,
Petitioner,
v.
ALEXANDER CABEZAS, et al.,
Respondents.
Civil Action No. 26-1168 (MCA)
MEMORANDUM & ORDER
This matter comes before the Court on Petitioner’s counsel’s letter dated February 17,
2026, which seeks his immediate release based on the Immigration Court’s failure to hold an
individualized bond hearing, as ordered by this Court on February 5, 2026. (ECF No. 10.) T his
Court directed Respondents to file a response and the transcript of the proceeding. (ECF No. 11.)
Respondents sought an extension of time and filed their response and the bond hearing transcript
on March 20, 2026. (ECF Nos. 12, 14.) For the reasons explained below, the Petitioner’s request
for release is GRANTED.
I. F
ACTUAL BACKGROUND AND PETITIONER’S BOND HEARING
According to his Verified Petition, Elmer Gonzalez Altamirano is a citizen of Mexico who
entered the United States without inspection twenty years ago in 2006 and resides in Bronx, New
York. (ECF No. 1, Petition at 7, 15.) Petitioner has “zero criminal convictions ,” and is “ the
backbone of his family.” (Id. at ¶ 18.) He met and married his wife, a United States citizen , in
2008, and together they are raising five United States citizen children , including three from her
prior marriage. (Id.) After Petitioner’s wife developed a disabling knee injury in 2023, Petitioner
became the primary breadwinner for the household, working as a cook at a restaurant and caring
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for their youngest children, ages 11 and 17. (Id.) He has raised his stepchildren since their early
childhood, and the eldest stepchild is enlisted in the U.S. Army. (Id.)
Petitioner is also in the process of adjusting his status to a lawful permanent resident. (Id.
at ¶¶ 18-19.) He is the beneficiary of an approved I-130 petition, the first step in seeking family-
based adjustment of status, as well as an approved I-601A provisional waiver of unlawful presence,
which will allow him to undergo consular processing in order to obtain permanent residency. (Id.)
On January 29, 2026, Petitioner had just dropped his children off at school and was on his
way to visit his wife in the hospital, where she was recovering from knee surgery. (Id. at ¶ 16.)
Two cars pulled up alongside him, and four to five individuals exited the vehicles and surrounded
him. (Id.) One of the individuals told him they were looking for someone and wanted to show
him a photograph to determine if he knew that person. ( Id.) After Petitioner agreed to view the
photograph and indicated he did not know the individual in question, one of the individuals asked
Petitioner to provide identification, which he did. (Id.) Upon reviewing his identification and
appearing to perform a computer search, these individuals arrested Petitioner. (Id.)
After Petitioner’s arrest, ICE detained him at Delaney Hall in Newark, New Jersey, and
DHS placed him in removal proceedings before the 201 Varick Street Immigration Court pursuant
to 8 U.S.C. § 1229a. (Id. at ¶¶ 7, 17.) Petitioner is charged with being inadmissible under 8 U.S.C.
§ 1182(a)(6)(A)(i) as someone who entered the United States without inspection. (Id. at ¶ 17.)
On February 5, 2026, pro bono counsel filed a Verified Petition on Petitioner’s behalf
seeking relief under 28 U.S.C. § 2241. (ECF No. 1.) That same day, the Court stayed Petitioner’s
transfer from this District. (ECF No. 3). Relying on Rivera Zumba v. Bondi, No. 25-14626 (KSH),
2025 WL 2753496 (D.N.J. Sept. 26, 2025) and Vasquez Lucero v. Soto, et al, No. 25-16737-MCA,
2025 WL 3240895, at *1-2 (D.N.J. Nov. 20, 2025), the Court held that Petitioner was unlawfully
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detained under § 1225(b), in violation of the INA and his Fifth Amendment right to due process .
(See id.) The Court ordered an individualized bond hearing to be held within 7 days in accordance
with 8 U.S.C. § 1226(a).1 (See id.)
In the proceeding that followed, Petitioner was represented by Nora Searle, a Senior Staff
Attorney in the Immigration Practice of the Bro nx Defenders Office. Ms. Searle avers that she
entered her appearance as counsel in Petitioner’s removal and bond (or custody) proceedings via
a Form EOIR -28 ( a Notice of Entry of Appearance as Attorney or Representative Before the
Immigration Court), the standard form for such appearances in U.S. immigration courts and
provided a screenshot of the Executive Office for Immigration Review (“EOIR”) Case Portal
showing an appearance for “All Proceedings” entered on February 5, 2026. (See ECF No. 10-1,
Decl. of Nora Searle (“Searle Decl.”) ¶¶ 3-4.) The Form was accepted by the Immigration Court
the same day. (Id. ¶ 5.) Ms. Searle subsequently checked the EOIR Courts and Appeals System
(“ECAS”) online filing platform every day to see if a bond hearing was scheduled and also spoke
to Petitioner who did not receive notice of a bond hearing. (Id. at ¶¶ 6–7.)
On the evening of February 10, 2026, Petitioner called Ms. Searle to inform her that he
saw his name on a list of people who were scheduled for court the next day and that his hearing
was set for 9:00 am on February 11, 2026. (Id. at ¶ 8.) Ms. Searle once again checked her ECAS
account which continued to show no bond hearing date scheduled and no ability to upload evidence
to the bond record despite having successfully entered her appearance in both custody and removal
proceedings five days earlier. (Id. at ¶¶ 8–9.)
1 The Court’s Order also alternatively provided Respondents with the opportunity to respond if they believed
Petitioner’s case was factually or legally distinguishable from Rivera Zumba and Vasquez Lucero, but Respondents
did not elect that option.
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Because the Elizabeth Immigration Court was closed for the evening, she could not contact
the court until the following morning. (Id. at ¶¶ 8, 10.) On the morning of February 11, 2026, Ms.
Searle called the court and spoke to a clerk who confirmed the 9:00 a .m. bond hearing. (Id. at
¶ 10.) At 8:17 a.m., she spoke to a supervisor and explained that she had filed her Form EOIR-28
the prior week and received no notice of a bond proceeding being scheduled. (Id.) The supervisor
informed Ms. Searle that Petitioner’s proceedings were originally venued at Varick Street
Immigration Court and that the Immigration Court in Elizabeth was not aware that an EOIR -28
had been filed and instructed her to file a second EOIR -28. (Id.) Ms. Searle averred that in her
six-and-a-half years of practice in Immigration Court, this was the first time she was ever instructed
to file an EOIR-28 for a second time. (Id. at ¶ 3.) After she filed a second EOIR-28, she was able
to view the bond docket in full and see the hearing date in her ECAS portal. (Id. at ¶ 11.) After
accessing the bond docket, Ms. Searle saw that it contained administrative errors, labeling this
Court’s bond hearing Order as a “Pre- NTA [Notice to Appear] bond redetermination request”
despite the fact that an NTA had been filed on January 29, 2026, over a week earlier. (Id. at ¶ 12.)
Fifteen minutes later, Ms. Searle joined Immigration Judge Shana Chen’s virtual
courtroom, stated her appearance for the record as counsel for Petitioner, explained the situation,
and requested time to be able to submit evidence. (Id. at ¶ 13.) Consistent with her declaration,
Ms. Searle explained to Judge Chen that she entered an appearance “in all proceedings” but neither
she nor her client was notified of the bond hearing. (Tr. 3:17- 4:2) Ms. Searle explained that the
lack of notice was due to administrative error, but Judge Chen questioned whether counsel
correctly entered her appearance in the bond proceeding. ( Id. at 4:12-6:16.) The DHS attorney
took the position that counsel had “ample notice” and should “withdraw” the request for the bond
hearing. (Id. at 6:24-7:7.) Ms. Searle responded, “Well, Your Honor, we’re not withdrawing our
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bond request. We are asking to be given time to submit evidence. Again, I, in very good faith, filed
for all proceedings.” (Id. at 11-12.) Judge Chen responded that she “did not have a lot of time”
but acknowledged that “you are not the only one that has run into this issue.” ( Id. at 7:14-17).
Judge Chen then made her ruling as follows:
[You, Petitioner, were] served on February 6, 2026, informing you
that your custody hearing, your bond hearing, would be held today
at 9 a.m. Since I don’t have your evidence before me, the
government attorney asked that you, through your attorney,
withdraw your request for bond and refile it after you had an
opportunity to properly submit all that evidence. The problem
though is now the deadline is tomorrow and I don’t have time to wait
for your attorney to submit the evidence and to review it before that
deadline. It’s your choice, you want to proceed with -- you do not
want to withdraw your bond hearing, then I have to make a decision
today, okay?
So I am denying the request for bond for failure to meet your burden
of proof. You can appeal this decision to the Board of Immigration
Appeals by filing a Notice to Appeal by March 13, 2026.
(Id. at 8:14-24.) Although Judge Chen stated that Petitioner was served on February 6, Ms. Searle
averred that Petitioner showed her a document he received in the mail on February 12, which
provided him notice of the February 11, 2026 bond hearing after it occurred. (See Searle Decl. at
¶ 16.)
On February 13, 2026, Respondents’ counsel submitted a required update to this Court
regarding Petitioner’s bond proceedings, stating only that Petitioner “appeared before an
Immigration Judge for a bond hearing on February 11, 2026, and the Immigration Judge denied
bond.” (ECF No. 9.)
II. T
HIS ACTION
Petitioner’s challenge to the bond proceeding followed. He claims he was denied due
process at his bond hearing. (ECF No. 10.) Respondents did not respond to Petitioner’s letter,
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and this Court ordered them to file a response by Friday, March 6, 2026. On th e due date,
Respondents sought an extension of time until March 20 to order the transcript and respond to
Petitioner’s allegations.2 (ECF No. 12.)
Respondents contend that they complied with the Court’s order and have no control over
the scheduling or conducting of bond hearings, which Respondents aver are the responsibility of
the EOIR, a separate agency from ICE and DHS. (ECF No. 14 at 1-2.) Respondents also claim
they lack information about the notice issues. (Id. at 2-3.) They also suggest that Petitioner should
seek bond redetermination or file an appeal to the BIA and that any relief should be limited to a
new bond hearing before the Immigration Court. (Id. at 3.) In other words, the Parties technically
“appeared” before the Immigration Court; this Court’s Order was complied with; and the lack of
notice was someone else’s fault, not theirs.
It is clear that no actual bond hearing occurred here and that the proceeding before Judge
Chen was fundamentally unfair. For starters, Respondent s do not dispute Ms. Searle’s sworn
Statement that she ( and Petitioner) did not receive adequate notice of the bond hearing. In fact,
the only plausible conclusion from Ms. Searle’s unchallenged Statement is that the lack of notice
was the government’s fault, not hers. Respondents sidestep this obvious problem by arguing that
EOIR is a separate agency from DHS and ICE , thereby ignoring the fact that EOIR , as well as
Immigration Judges, all operate under the authority and direction of the Attorney General —a
named Respondent in this matter. See 8 CFR § 1003.10; see also Am. Ass'n of Univ. Profs., et al.
v. Rubio, et al., --F. Supp. 3d--, 2026 WL 686418, at *11 (D. Mass. Mar. 11, 2026) (“Now that it
suits their interests, it is ironic to hear the Public Officials wail that they are but bit players in a
fractured government . . . As this Court recognizes, the entire theory of this administration is that
2 The Court grants the request for an extension of time.
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of a unitary executive with no agency independence where every single employee within the
Article II executive dances to the tune of the President.”) . It also ignores the truth of what
happened here: t he government failed to notify Petitioner of the bond hearing and then blamed
the Petitioner for not being prepared for a hearing for which he had no notice. That is not fair, and
that is not due process. Persons appearing before United States Courts in the presence of
government attorneys deserve more.
As Respondents acknowledge, this Court has jurisdiction to determine whether the bond
hearing was fundamentally unfair. See Ghanem v. Warden Essex Cnty. Corr. Facility , No. 21-
1908, 2022 WL 574624, at *2 (3d Cir. Feb. 25, 2022) . The bond hearing here was meaningless
and violated the spirit and the letter of this Court’s Order, which required the Immigration Court
to assess whether Petitioner is a flight risk or danger to the community. At DHS’s urging, Judge
Chen sought to have Petitioner’s counsel withdraw the request for a bond hearing and used this
Court’s seven-day deadline as a sword to deny Petitioner additional time to submit evidence.3
That deadline was imposed to ensure a prompt and fair hearing, which is the opposite of what
occurred here. The hearing was neither prompt nor fair . Respondents then compounded Judge
Chen’s error with their incomplete status update letter, which neglected to mention that Judge
Chen refused Petitioner’s reasonable request and denied bond without considering any evidence.
And the Court has little doubt that Petitioner would have been released on bond had he been given
the opportunity to present evidence. According to his Verified Petition, which is undisputed,
Petitioner is a 20 -year resident of the United State s and a husband and father of United States
3 The government’s argument to Judge Chen that Petitioner should withdraw his request for a bond hearing ignores
the fact that DHS and the Judge Chen were required under this Court’s Order to provide Petitioner with a n
individualized bond hearing. And instead of maneuvering to keep Petitioner detained for as long as possible, the
government could have simply requested an extension of the 7-day deadline in order to provide Petitioner with a fair
hearing. This reasonable and obvious solution would have been granted by the Court just as it granted the
government’s request for an extension of time to submit a response and the transcript.
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citizens, one of whom is serving our country in the military. He has no criminal history and is in
the process of adjusting his status. It is hard to imagine a person who is less likely to flee or pose
a danger to others. And it is hard to fathom a more flagrant disregard of due process rights by
those sworn to uphold constitutional principles.
The Court declines to order a second bond hearing and will instead order Petitioner’s
release. Th is Court ordered the first bond hearing out of an abundance of caution and with the
expectation that Respondents and the Immigration Court would provide Petitioner with a fair
hearing. It did so despite a recent and disquieting trend of government defiance of court orders in
habeas cases, like this one. 4 Given what occurred here, the Court’s confidence was misplaced.
The Court has no faith that a second bond hearing will be conducted fairly. This civil detainee has
been incarcerated for almost two months; having had but one fleeting and meaningless hearing.
Due process is not about checking a box to comply with a district court order; it is about
constitutional fairness and the right to be heard and present evidence. This did not occur here. For
the reasons set forth above, this Court therefore refuses the invitation to fix this unlawful detention
by converting it to a “potentially lawful alternate form under a different statute with different
procedural requirements and rules.” Fajardo-Nugra v. Soto, No. 26-975, 2026 WL 579192, at *2
(D.N.J. Mar. 2, 2026) (granting petitioner’s habeas petition and ordering his release based on
respondents’ flawed application of § 1225(b)(2)).
For all these reasons, this Court GRANTS Petitioner’s request for release.
Accordingly, it is on this 25th day of March 2026,
4 The government recently conceded that it violated 56 orders between December 5, 2025 and February 13, 2026. See,
e.g., Kumar v. Soto, Civ. No. 26-777, Docket Entry No. 21 (D.N.J. Feb. 13, 2026); see also Cartagena Hueso v. Soto
et al., No. 26-cv-1455 (ZNQ), 2026 WL 539271, at *3 (D.N.J. Feb. 26, 2026) (discussing recent violations of court
orders issued in this District as a basis to order the petitioner’s release).
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ORDERED that Respondents’ motion for an extension of time (ECF No. 12) is
GRANTED, and the response is accepted as within time; and it is further
ORDERED that the Court finds that the bond hearing conducted by the Immigration Court
on February 11, 2026, was fundamentally unfair and GRANTS Petitioner’s request for release;
and it is further
ORDERED that Respondents shall release Petitioner from detention no later than March
26, 2026 at 10 a.m.; and it is further
ORDERED that Respondents are permanently enjoined from detaining Petitioner under
8 U.S.C. § 1225(b) and are temporarily enjoi ned from detaining Petitioner under 8 U.S.C.
§ 1226(a) for 14 days; and it is further
ORDERED that by 3 p.m. on March 26, 2026, Respondents shall file a status report
confirming the time of Petitioner’s release and requesting that this matter be closed; and it is further
ORDERED that the motion pending at ECF No. 4 shall be terminated in light of the relief
provided.
s/ Madeline Cox Arleo
MADELINE COX ARLEO
United States District Judge
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