Kelly v. Almodovar

Background

Rickardo Anthony Kelly, a forty-year-old Jamaican citizen seeking asylum in the United States, filed a petition under 28 U.S.C. § 2241 challenging his detention by Immigration and Customs Enforcement (ICE). He entered the United States on a tourist visa in May 2021 and filed an asylum application later that year. His visa expired in November 2021. In January 2025, officials served him with a notice charging him with remaining in the United States longer than authorized. He was released and instructed to attend ICE check-ins.

Kelly appeared with his lawyer for a scheduled check-in on August 4, 2025. After counsel informed ICE officers about criminal charges filed against Kelly in May 2025, the officers told Kelly he would be detained. Kelly said an officer offered him the option of leaving for Jamaica, which he declined. ICE gave him a custody-determination notice, which he signed, and he requested a custody-reconsideration hearing before an immigration judge.

Kelly remained at an ICE facility in Manhattan from August 4 to August 8. He described overcrowding, limited restroom access, no showers, inadequate bedding and hygiene supplies, limited food, difficulty obtaining his diabetes medication, and restricted phone access. ICE then transferred him to the Metropolitan Detention Center and later to the Orange County Jail.

Legal issue and analysis

The court considered whether Kelly’s detention violated the Fifth Amendment’s guarantee of due process. Under the law governing ICE detention, the court explained, ICE may detain a noncitizen but must allow the person to show that release would not create a danger to people or property and that the person was likely to appear at future proceedings.

The court found it undisputed that ICE did not give Kelly notice or a meaningful opportunity to present that information before detaining him. Reviewing a record listing his pending charges was not the same as making an individualized assessment of his risk of flight or dangerousness. When Kelly attempted to explain his circumstances, the officers stopped him and said they had been instructed by supervisors to revoke his release. The respondents did not argue that Kelly posed a flight risk or danger to the community.

The court also rejected the respondents’ argument that Kelly had to exhaust administrative remedies before seeking relief in federal court. Kelly had requested a custody-reconsideration hearing, but the court explained that such a hearing occurs after ICE’s initial detention decision and does not replace the required process before or at the time of that decision. The court concluded that exhaustion was excused because the alleged detention policy systematically denied the administrative process the respondents identified and because Kelly had raised a substantial constitutional question.

Ruling and result

Judge Analisa Torres held that the respondents’ ongoing detention of Kelly without prior notice, a showing of changed circumstances, or an opportunity to respond violated his Fifth Amendment due-process rights. The court granted the petition and ordered the respondents to immediately release Kelly from custody. The respondents were ordered to certify compliance by filing on the docket by August 15, 2025. Because the court ordered Kelly’s release based on the Fifth Amendment violation, it did not decide his other claims.