Perez v. Francis

Background

Placido Romero Perez filed a petition asking the federal court to review the lawfulness of his detention by Immigration and Customs Enforcement (ICE) and order his immediate release. Romero alleged that ICE agents forcibly arrested him while he was walking on a sidewalk without explaining why. He had entered the United States in December 1995 without inspection, had lived in the United States for nearly 30 years, and had not applied for lawful immigration status or received authorization to remain. The opinion states that he had family in Brooklyn, had worked at an Italian restaurant in New York City since 2009, and had never been convicted of a crime.

ICE arrested Romero on September 25, 2025, after asking him about two people shown in photographs and requesting his identification. The parties disputed whether ICE recorded the encounter. ICE later served him with a notice to appear at an immigration hearing. Romero was transferred to detention facilities in New Jersey and Louisiana. He attended two immigration hearings concerning whether he could be removed from the United States, but those hearings did not address his custody or the lawfulness of his detention.

Legal framework and analysis

The main issue was whether Romero’s detention was governed by 8 U.S.C. § 1225(b)(2)(A), which requires detention of certain noncitizens seeking admission to the United States, or by 8 U.S.C. § 1226(a), which permits discretionary detention of noncitizens already in the country and allows them to seek a bond hearing before an immigration judge.

The court held that § 1226(a), not § 1225(b)(2)(A), governed Romero’s detention. The court reasoned that Romero had been arrested while living in the United States, after nearly 30 years of residence, rather than while entering the country or seeking admission. The court also concluded that treating every person who had not been formally admitted as someone “seeking admission” would improperly disregard the statutory language requiring that the person be seeking admission at the time.

The court rejected the respondents’ argument that a 2025 decision by the Board of Immigration Appeals prevented Romero from obtaining a bond hearing. The court concluded that decision was based on the incorrect premise that § 1225(b)(2)(A) governed detention of people arrested while residing in the United States. The court also stated that courts, rather than the agency, authoritatively interpret the statute.

The court addressed exhaustion, which is the requirement that a person first pursue available relief through the agency before seeking federal judicial review. It concluded that requiring Romero to pursue a bond hearing was not futile because he was entitled to a hearing under § 1226(a), and an immigration judge’s decision could resolve or affect the federal case. The court further stated that Romero’s family ties, stable employment, and lack of a criminal history weighed against the government’s ability to prove that he was dangerous or likely to flee by clear and convincing evidence.

Disposition

The court granted the petition in part and denied it in part. It ordered the government to ensure that Romero receives a bond hearing before an immigration judge under § 1226(a) within seven days of the order. At that hearing, the government must prove by clear and convincing evidence that Romero is a danger to the community or a flight risk. If no hearing occurs within seven days, the government must immediately release him.

The court denied the petition insofar as it sought immediate release or a bond hearing before the federal court. Because the bond hearing before an immigration judge resolved the case, the court did not reach Romero’s constitutional arguments. Judge John G. Koeltl directed the clerk to close the case.