govinfo:USCOURTS-njd-1_26-cv-06330-0

UNITED STATES DISTRICT COURT 
DISTRICT OF NEW JERSEY 
 
 
ALEXEY YERO ALVAREZ, 
Petitioner, 
v. 
MARKWAYNE MULLIN, et al., 
Respondents. 
 
Case No. 26–cv–06330–ESK 
 
OPINION AND ORDER 
 
THIS MATTER is before the Court on petitioner Alexey Yero Alvarez ’s 
petition for a writ of habeas corpus pursuant to 28 U.S.C. §  2241 (Petition). 
(ECF No. 1.) Respondents oppose the Petition. (ECF No. 5.) 
1. Petitioner is a citizen of Cuba. (ECF No. 1 ¶  1.) He entered the 
United States on or about December 31, 2022. (Id. ¶19.) 
2. The Department of Homeland Security (Department) initially 
detained petitioner but later released him on parole “due to detention capacity.” 
(ECF No. 5–2 p. 3.) 
3. Petitioner was detained by the Department on May 28, 2026 after a 
scheduled appointment and was placed in Elizabeth Contract Detention 
Facility. (ECF No. 1 ¶ ¶ 18, 21.) This Petition followed, asserting the 
respondents violated petitioner’s due process rights. (Id. pp. 6, 7.) 
4. Respondents filed an answer on June 5, 2026 arguing that petitioner 
is properly detained pursuant to 8 U.S.C. § 1225(b)(2) because he is a noncitizen 
“who entered without admission or parole after inspection and was detained by 
immigration authorities in the interior of the country without having been 
lawfully admitted. As such, he is an ‘applicant for admission ’ who is not 
entitled to a bond hearing.” (ECF No. 5 p.  2.) 
5. I conclude that petitioner is being unlawfully detained under 8 
U.S.C. §  1225 because petitioner was apprehended inside the United States 
after residing here for an extended period, and therefore he should have been 
detained under 8 U.S.C. § 1226. See Ayala Amaya v. Bondi, No. 25–cv–16428, 
2025 WL 3033880, at *2–3 (D.N.J. Oct. 30, 2025). PageID: <pageID>
 
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6. Petitioner was detained near the border but was released “due to 
detention capacity.” (ECF No. 5 –2 p.   3.) This is not release on parole “for 
urgent humanitarian reasons or significant public benefit … .” 8 U.S.C. 
§ 1182(d)(5)(A). 
7. Furthermore, the Notice to Appear that was issued on May 28, 2026 
identified petitioner as a noncitizen “ present in the United States who has not 
been admitted or paroled … .” (ECF No. 5–4 p. 5 (emphasis added)). “That 
language aligns with §  1226(a), not [§ 1225(b)(2)].” Dabre v. Soto, No. 26–cv–
02142, 2026 WL 699934, at *2 (D.N.J. Mar. 12, 2026). Therefore, it seems from 
the record that the Department “has consistently treated [petitioner] as subject 
to detention on a discretionary basis under §  1226(a), which is fatal to 
[r]espondents’ claim that he is subject to mandatory detention under § 1225(b).” 
Lopez Benitez v. Francis , 795 F. Supp. 3d 475, 483 –84 (S.D.N.Y. 2025) 
(emphasis in original). 
8. I decline to allow respondents to transform an unlawful detention 
into a lawful one through alternative, retrospective, post hoc justification 
presented mid-litigation, as doing so would give the Government a free pass to 
violate a person ’s statutory and constitutional rights first and search for 
authority later . “The Constitution does not permit the United States 
Government to target people on the streets, arrest them without serving any 
papers, deny them meaningful due process, and detain them for arbitrary or 
indefinite periods of time while they engage in phishin g expeditions to justify 
the arrests.” Martinez v. McAleenan, 385 F. Supp. 3d 349, 373 (S.D.N.Y. 2019); 
see also Lopez Benitez , 795 F. Supp. 3d at 486 (releasing petitioner and 
explaining that the court “cannot credit [r]espondents’ new position as to the 
basis for . . . detention, which was adopted post hoc and raised for the first time 
in this litigation.”); Arias Gudino v. Lowe, 785 F. Supp. 3d 27, 46 n. 8 (M.D. Pa. 
2025) (releasing petitioner and discussing the impropriety of allowing the 
government to proceed on “post hoc justifications for detention”). 
Accordingly, 
IT IS on this 11th day of June 2026 ORDERED that: 
1. Petitioner’s § 2241 Petition is GRANTED. Within 24 hours of this 
Order’s entry, respondents shall RELEASE petitioner under the same 
conditions, if any, that existed prior to his detention, including, but not limited 
to, release: (1) within the State of New Jersey; (2) without the imposition of 
additional conditions (such as ankle monitors or electronic tracking devices); 
and (3) with all clothing and outerwear worn at the time of detention, or other 
appropriate attire. PageID: <pageID>
 
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2. Respondents shall return to petitioner all personal property 
belonging to petitioner —including, but not limited to, any driver ’s license, 
passport, immigration documents, currency, or cellphone —that was seized at 
the time of detention and that is currently in their custody, possession, or 
control, whether maintained directly by respondents or by any contracted or 
affiliated facili ty, and that such property shall be returned in the same 
condition as it existed immediately prior to petitioner’s detention. 
3. Respondents shall file a letter on the docket confirming the date and 
time of petitioner ’s release and that the conditions set forth above have been 
satisfied. 
4. Respondents are PERMANENTLY ENJOINED from rearresting 
or otherwise detaining petitioner under §  1225, which this Court has found 
inapplicable to him. 
5. Respondents shall not arrest, detain, or otherwise take petitioner 
into custody under 8 U.S.C. §  1226(a) for a period of 14 days following his 
release, so as to ensure full effectuation of this Court’s judgment and to prevent 
circumvention of the relief granted. 
6. Any future detention or re-detention of petitioner must comply with 
all statutory and constitutional requirements, including the identification of a 
lawful statutory basis for detention and the provision of adequate procedural 
and substantive due process. 
7. To the extent that respondents seek to re -arrest or otherwise re -
detain petitioner under any statutory authority, including but not limited to 
§§ 1225 or 1226, this Court shall retain jurisdiction over the matter and 
petitioner may move to reopen these proceedings before this Court without the 
need to file a new habeas petition. 
8. The Clerk shall CLOSE this case. 
 
 /s/ Edward S. Kiel 
EDWARD S. KIEL 
UNITED STATES DISTRICT JUDGE PageID: <pageID>

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