Order | Filed: July 28, 2026
| Entered: July 28, 2026
Zverev v. Rhoney et al
Habeas Corpus - Alien Detainee | New York Western
Text Order
TEXT ORDER re 1 Petition for Writ of Habeas Corpus filed by Giorgi Zverev
On 7/20/2026, this Court ordered the respondents to show cause why, in light of the Second Circuit's decision in Barbosa da Cunha v. Freden, 175 F.4th 61 (2d Cir. 2026), and this Court's decision in Alvarez Ortiz v. Freden, 808 F. Supp. 3d 579 (W.D.N.Y. 2025), "(1) the petition in this case should not be granted, and (2) the Court should not order that the petitioner receive a bond hearing at which the government bears the burden to demonstrate, by clear and convincing evidence, that the petitioner is a danger to the community or a flight risk and at which the immigration judge must consider non-bond alternatives to detention or, if setting a bond, the petitioner's ability to pay." Docket Item 2 .
In response, the "[r]espondents acknowledge[d]" that the Second Circuit recently held that "'[s]ection 1225(b)(2)(A) does not apply to... noncitizens,'" such as the petitioner, "'who are present in the United States after entering the country without inspection and admission, and who were not apprehended while entering the country or shortly thereafter,[']" and that "[s]ection 1226(a) [instead] applies" to such noncitizens. Docket Item 4 at 2 (quoting da Cunha, 175 F.4th at 69). The respondents reserved all their rights in connection with that acknowledgement, and this Court appreciates their efforts "to conserve judicial and party resources" by not rehashing issues that this Court and the Second Circuit already have decided. See id. at 1-2.
Turning to the question of relief, the petitioner argues that immediate release—not simply a bond hearing—is the appropriate remedy. Docket Item 1 &para&para 47-57. In support of that position, he makes two arguments. First, he points to "multiple cases nationwide" where immigration judges "failed to conduct neutral, individualized bond hearings or to apply the burden of proof as directed by habeas courts." Id. &para 52. And second, he argues that the fact that he was arrested without a warrant or any prior notice merits his immediate release. See id. &para&para 2, 57.
The respondents address only the second argument, saying that "habeas corpus is not the proper vehicle to challenge a supposedly unlawful arrest," Docket Item 4 at 6, and noting that the petitioner's arrest was not warrantless, see Docket Item 5 at 2. In light of the information provided by the respondents about the petitioner's arrest, the Court finds that further briefing is necessary to fully address this argument. Therefore, if the petitioner wishes to further argue that his arrest without prior notice warrants his immediate release, he may do so by 8/4/2026. If he chooses to make such a submission, he also should address the copy of the warrant that the respondents have provided to the Court.
As to the first argument, the petitioner's reasoning certainly has some merit. Nevertheless, in the many bond hearings recently conducted in accordance with this Court's orders, there have been very few in which the immigration judge did not do what the Court ordered. This Court therefore has no reason—at this stage—to assume that the petitioner will not receive a fair bond hearing. And in the few cases where immigration judges have not followed this Court's orders, noncitizens have been released. So if the petitioner does not receive the bond hearing to which he is entitled, this Court will not hesitate to enforce its order by releasing him.
As a final matter, the respondents also argue that the burden of proof at a bond hearing under section 1226(a) should be on the petitioner; however, they make no effort to distinguish this case from Alvarez Ortiz. See Docket Item 4 at 2.
Accordingly, for the reasons explained in Alvarez Ortiz and da Cunha, this Court GRANTS IN PART the petition to the extent it seeks a bond hearing and ORDERS the respondents to provide the petitioner with an individualize... (truncated)