govinfo:USCOURTS-pawd-3_26-cv-00776-0

IN THE UNITED STATES DISTRICT COURT 
 FOR THE WESTERN DISTRICT OF PENNSYLVANIA 
 
 
Yorby Jose BRITO RIVERO, 
 
 Petitioner, 
 
v. 
 
LEONARD ODDO, et al. 
 
 Respondents. 
 
 
 
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Civil Action No. 3:26-cv-776 
Judge Nora Barry Fischer 
 
Docket No. 6 
MEMORANDUM OPINION AND ORDER 
 
Pending before the Court are Petitioner’s Petition for Writ of Habeas Corpus (Docket No. 
6), the Respondents’ Opposition to said Petition (Docket No. 13), and Petitioner’s Reply (Docket 
No. 14). Petitioner is a Venezuelan national, who entered the United States in July 2022, was 
subsequently detained by immigration officials and released on humanitarian parole under 8 U.S.C. 
§ 1182(d)(5). He has resided in the interior of the United States with his wife and two young 
children, has no criminal history, and was employed as a truck mechanic. In December 2023, he 
applied for Temporary Protected Status (“TPS”) under 8 U.S.C. § 1254a , which was granted on 
March 13, 2024.1 He was apprehended and taken into custody on January 20, 2026 while reporting 
for his scheduled ICE check -in, and has been detained at Moshannon Valley Processing Center , 
without a bond hearing, since late January of this year. His request for a bond hearing was denied 
 
1 The designation of Venezuela for TPS and the related implementation of employment authorizations, first made in 
March 2021, had been extended in October 2023 and, in January 2025, was extended by the DHS Secretary for 
another 18 months, to October 2, 2026. Shortly thereafter, in February 2025, then-DHS Secretary Noem issued a 
vacatur of that extension. Petitioner failed to timely file his TPS re-registration, but submitted a late-filed re-
registration with the assistance of counsel on April 8, 2026. 

by the Immigration Judge on the basis of lack of jurisdiction over aliens subject to mandatory 
detention, i.e. on the basis of Petitioner’s classification as an arriving alien under 8 U.S.C. § 
1225(b). 
Petitioner asserts that he is subject to discretionary detention pursuant to 8 U.S.C. § 1226(a) 
and not mandatory detention under § 1225(b)(2) and seeks immediate release or, in the alternative, 
an individualized bond hearing. In addition to relief on the basis of his unlawful detention under § 
1225(b), Petitioner also seeks immediate release on the basis of his TPS designation under § 1254a 
and prior grant of humanitarian parole under § 1182(d)(5). In opposition, Respondents contend 
that this is an “Arriving Aliens” case whereby Petitioner made an illegal entry, was detained and 
paroled into the United States near the border and was later arrested in the interior of the United 
States. Despite acknowledging the prior decisions of Judges on this Court, t he Government 
reaffirms its position that mandatory detention applies, and advocates that the Court should follow 
the decision in Buenrostro-Mendez v. Bondi, 166 F.4th 494 (5th Cir. 2026). Respondents admit 
that Petitioner is being held in mandatory detention pursuant to § 1225(b)(2) and further assert that 
he has no entitlement to relief on any other basis. 
The Court has considered the parties’ positions and rejects Respondents’ contention that 
Petitioner is subject to mandatory detention under 8 U.S.C. § 1225(b) merely because he is a non-
citizen who is present in the United States and has not been admitted. It has previously noted that 
the United States Courts of Appeals for the Third Circuit has not yet addressed this issue, and 
affirmatively joins with the Courts of Appeals for the Second, Eleventh and Sixth Circuits, 2 and 
 
2 See Cunha v. Freden , 2026 WL 1146044 (2d Cir. Apr. 28, 2026); Hernandez Alvarez v. Warden, Fed. Detention 
Center, Miami, 2026 WL 1243395 (11 th Cir. May 6, 2026); Lopez-Campos v. Raycraft, 2026 WL 1283891 (6th Cir. 
May 11, 2026). 
Cf. Castañon-Nava v. U.S. Dep't of Homeland Sec. (“Castañon-Nava I”), 161 F.4th 1048 (7th Cir. 2025) ; Castañon-
Nava v. U.S. Dep't of Homeland Sec. (“Castañon-Nava II”), 2026 WL 1223250 (7th Cir. May 5, 2026). 

the vast majority of district courts 3 (including, so far as the Court is aware, all district court 
decisions within the Third Circuit). See F.B. v. Oddo, et al., Civ. A. No. 3:26-CV-717, 2026 WL 
1265352, at *2 (W.D. Pa. May 8, 2026) (Fischer, S.J.). For the reasons set forth in that 
Memorandum Opinion, the Court now holds that Petitioner’s detention is governed by § 1226(a) 
and that he has a clear right to an individualized bond hearing under § 1226(a) and its implementing 
regulations. 
As to the Petitioner’s requested relief: 
First, t he Court lacks jurisdiction to enjoin Petitioner’s transfer . 18 U.S.C. § 
1252(a)(2)(B)(ii) provides that “no court shall have jurisdiction to review any decision or action 
of the Attorney General . . . specified under this subchapter to be in the discretion of the Attorney 
General . . . .”; and the Third Circuit has held that “the place of detention is left to the discretion 
of the Attorney General.” Sinclair v. Attorney General of U.S., 198 F. App’x 218, 222 n.3 (3d Cir. 
2006), citing, inter alia , 8 U.S.C. § 1231(g)(1) (“The Attorney General shall arrange for 
appropriate places of detention for aliens detained pending removal or a decision on removal.”). 
Second, the Court will not at this juncture order Petitioner’s immediate release , but will 
instead order a prompt bond hearing under 8 U.S.C. § 1226(a) while it continues to consider his 
claims that he is entitled to release based upon his TPS or humanitarian parole. 
Third, the Court will not at present conduct its own bond hearing. See Leslie v. Holder , 
865 F. Supp. 2d 627, 631 (M.D. 2012) (court permitted bond hearing “initially conducted by an 
Immigration Judge”, being “mindful of the deference which should be accorded in the first instance 
 
3 See, e.g., Cifuentes Alvarez v. Noem, 2026 WL 545382 (W.D. Pa. Feb. 26, 2026) (Ranjan, J.); Calzado Diaz v. 
Noem, 2025 WL 3628480 (W.D. Pa. Dec. 15, 2025) (Haines, J.). 

to agency decision-making processes”).4 The Court “cannot speculate as to whether, if the Court 
were to order a bond hearing for Petitioner, the IJ would violate Petitioner's procedural due process 
rights.” Cahuec v. Soto, 2025 WL 3524463, *2 (D. N.J. 2025). 
 Fourth, t he Court will not at present order appl ication of the procedural safeguards 
requested by Petitioner (regarding burden and standard of proof, and consideration of detention 
alternatives and ability to pay). I nstead, the Court will direct Respondents to apply procedures 
that comport with due process, and allow the IJ to determine in the first instance 5 whether the 
additional procedural safeguards requested by Petitioner are necessary or appropriate .6 In the 
event that Petitioner believes the IJ has not afforded him constitutionally adequate procedures, he 
may apply to this Court for further relief. 
Fifth, the Court notes that the Third Circuit has held that attorneys’ fee awards are permitted 
under the EAJA in non-citizens’ habeas cases. See Michelin v. Warden Moshannon Valley Corr. 
Ctr., 169 F.4th 418, 432 (3d Cir. 2026) (“ [W]e hold the EAJA unambiguously applies to habeas 
challenges to immigration detention under 28 U.S.C. § 2241”). Under the EAJA, a court may 
award fees and expenses to a prevailing party against the United States, unless “the court finds that 
the position of the United States was substantially justified or that special circumstances make an 
 
4 The Court notes that the Leslie court was ultimately required to conduct its own bond hearing due to the IJ “hav[ing] 
neglected to fully address crucial procedural safeguards that are implicit in Diop”. Leslie, 865 F. Supp. 2d at 632. 
5 The Court notes that § 1226 and the applicable regulations do not specify burden or standard of proof, or required 
considerations; and so far as the Court is aware, the Immigration Court does not have any established practice in cases 
involving prolonged erroneous deprivation of an initial bond hearing. 
6 See Ghanem v. Warden Essex Cnty. Corr. Facility , 2022 WL 574624, at *2 (3d Cir. Feb. 25, 2022) (“In a 
fundamentally fair bond hearing, due process has three essential elements. An alien: (1) is entitled to factfinding based 
on a record produced before the decisionmaker and disclosed to him or her; (2) must be allowed to make arguments 
on his or her own behalf; and (3) has the right to an individualized determination of his [or her] interests.” ) (brackets 
in Ghanem; citations and internal quotation marks omitted). Cf. German Santos v. Warden, Pike Cnty. Corr. Facility, 
965 F.3d 203, 21 3 (3d Cir. 2020) (holding, based upon a Mathews due process analysis, that “once [mandatory] 
detention under § 1226(c) has become unreasonable, the Government must put forth clear and convincing evidence 
that continued detention is necessary”). 

award unjust.” 28 U.S.C. § 2412(d)(1)(A). Because there is the potential for further proceedings 
in this action, the Court will hold Petitioner’s fee request in abeyance. 
ORDER 
In sum, the Court finds that Petitioner has a clear statutory/regulatory right to a bond 
hearing before an Immigration Judge; and that it is appropriate for the Court to order such a hearing 
in the first instance while it considers his claims for immediate release. Accordingly, the Petition 
for Writ of Habeas Corpus [1] is GRANTED in part and DENIED in part, as follows: 
 AND NOW, this 18th day of May, 2026, 
IT IS HEREBY ORDERED that said Petition is GRANTED in the form of a Bond Hearing 
under § 1226(a) before an Immigration Judge, to be provided by Respondents in accordance with 
this Opinion and within ten (10) days hereof; 
IT IS FURTHER ORDERED that Respondents will ensure that the Bond Hearing will be 
conducted by a neutral adjudicator, who (i) will apply all procedural safeguards ordinarily required 
by due proce ss (including factfinding based on a record produced before the adjudicator and 
disclosed to Petitioner, an opportunity to make arguments on the Petitioner’s behalf, and the right 
to an individualized determination of Petitioner’s interests ); and (ii) will consider whether 
additional procedural safeguards (such as modifications to the burden or standard of proof) are 
required due to the erroneous prolongation of Petitioner’s detention without a bond hearing; 
 IT IS FURTHER ORDERED that Respondents will file a Status Report with the Court 
within seven (7) days thereafter confirming that Petitioner received a Bond Hearing and the results 
of that hearing; 
 IT IS FURTHER ORDERED that Petition er’s request for immediate release on the basis 
of his TPS or humanitarian parole will be reserved for the Court’s further consideration; 

IT IS FURTHER ORDERED that within fourteen (14) days hereof, Respondents shall 
submit supplemental briefing, not to exceed 20 pages, on the following issues: 
(i) whether 8 U.S.C. § 1254a(b)(5)(A) bars this Court’s review of the validity of 
DHS’s purported revocation of its extension of TPS designation for 
Venezuela and its termination of that designation prior to expiration of said 
extension; 
(ii) assuming the Court has jurisdiction, the effect of 8 U.S.C. § 
1254a(b)(3)(B)’s provision that termination of TPS designation as to a 
foreign state “shall not be effective earlier than . . . the expiration of the most 
recent previous extension” thereof; 
(iii) whether (and how and when) DHS effectively withdrew Petitioner’s TPS in 
accordance with 8 U.S.C. § 1254a(c)(3), or whether (and how and when) such 
individual status was otherwise terminated; and 
(iv) the implications of Petitioner’s humani tarian parole under 8 
U.S.C. § 1182(d)(5)(A) (and its termination without notice or hearing); 
 
IT IS FURTHER ORDERED that within seven (7) days thereafter, Petitioner may file a 
Reply brief, not to exceed 15 pages; 
 IT IS FURTHER ORDERED that Petitioner’s request for attorneys’ fees pursuant to the 
Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412, will be held in abeyance pending further 
order of this Court; 
 AND I T IS FURTHER ORDERED that the Petition is DENIED in all other respects, 
without prejudice. 
 
 s/Nora Barry Fischer 
 Nora Barry Fischer 
 Senior U.S. District Judge 
 
cc/ecf: counsel of record 
 

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