CAGATAY CAKAN v. JOSEPH D. McDONALD, Jr., in his official capacity as Sheriff of Plymouth County; PATRICIA H. HYDE, in her official capacity as Acting Field Office Director, Boston Field Office, United States Immigration and Customs Enforcement; TODD M. LYONS, in his official capacity as Acting Director, United States Immigration and Customs Enforcement; KRISTI NOEM, in her official capacity as Secretary of Homeland Security; PAMELA JO BONDI, in her official capacity as United States Attorney General
No. 1:25-cv-11094-JEK
UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS
May 19, 2025
KOBICK, J.
KOBICK, J.
Petitioner Cagatay Cakan, a citizen of Turkey, has filed a petition for a writ of habeas corpus under
Following a month-long trip abroad, Cakan returned to the United States on April 9, 2025 and, after presenting his valid green card and Turkish passport, was detained at Boston Logan International Airport. The U.S. Customs and Border Protection (“CBP“) officer at the airport determined that Cakan should not be treated as a lawful permanent resident, but rather should be treated as an applicant for admission to the United States, because of evidence that he had “abandoned or relinquished” his lawful permanent resident status, within the meaning of
Cakan‘s petition for a writ of habeas corpus contends that, under the immigration laws, he should have been treated as a lawful permanent resident, not an applicant for admission, and thus should never have been detained pending removal proceedings. He seeks an order releasing him from detention, but does not ask this Court to determine whether, in fact, he has abandoned or relinquished his lawful permanent resident status. The government respondents contend that this Court lacks jurisdiction to consider Cakan‘s petition and, further, that Cakan is lawfully detained as an applicant for admission under
BACKGROUND
I. Statutory and Regulatory Framework.
All aliens1 seeking admission2 or readmission to the United States must be inspected by an immigration officer.
A different set of rules applies to aliens who have become lawful permanent residents (“LPRs“) of the United States. LPRs can leave and return to the country more freely than most other aliens. See Katebi v. Ashcroft, 396 F.3d 463, 466 (1st Cir. 2005) (“Returning permanent
When a non-citizen seeking to reenter the United States “has a colorable claim to returning” to LPR status, “the government bears the burden of proving by ‘clear, unequivocal, and convincing evidence’ that he abandoned his status while out of the country and is therefore ineligible for admission into the United States.” Mahmoud v. Barr, 981 F.3d 122, 125 (1st Cir. 2020) (quoting Katebi, 396 F.3d at 466). Determining whether an LPR has abandoned his permanent resident status is a “fact-intensive question.” Katebi, 396 F.3d at 466. “To qualify as a returning permanent resident, the resident” (1) “must have acquired lawful permanent resident status,” (2) “must have retained that status from the time that [he] acquired it,” and (3) “must be returning to an unrelinquished lawful permanent residence after a temporary visit abroad.” Id. (quotation marks omitted). If the non-citizen “is not returning from ‘a temporary visit abroad,’ he will be deemed to have abandoned permanent resident status and be excluded from the United States.” Id.3
When seeking to enter the United States at a port of entry, “[a] person claiming to have been lawfully admitted for permanent residence must establish that fact to the satisfaction of the inspecting officer and must present proper documents in accordance with [8 C.F.R.] § 211.1.”
II. Factual Background.
Cakan is a native and citizen of Turkey. ECF 10-1, ¶ 7. On September 18, 2001, he was granted lawful permanent resident status in the United States, id. ¶ 8, which he obtained as a beneficiary of the Diversity Visa Lottery Program, ECF 1, ¶ 9. Cakan‘s wife and two children obtained their LPR status in 2015. Id. ¶ 10; ECF 13, at 1-2. Cakan and his wife own a house in Medfield, Massachusetts, ECF 13, at 38, his children are enrolled in school there, id. at 2, and Cakan filed a Massachusetts income tax return for the 2023 and 2024 fiscal years, id. at 28-37. Cakan owns multiple foreign businesses, however, and he regularly travels abroad to manage these businesses. See ECF 1, ¶¶ 4, 11.
Since becoming an LPR in 2001, Cakan has spent the majority of his time abroad. See ECF 10-1, ¶¶ 8-13. He met his wife in Turkey shortly after becoming an LPR. See ECF 13, at 1. They married in 2003 and had one child in 2006, followed by a second in 2007. See id. Between 2003 and 2007, Cakan visited the United States only four times, staying in the country for approximately four months in total across these trips. See ECF 10-1, ¶ 9. After departing the United States on January 10, 2007, Cakan did not return again for over nine years, until June 29, 2016. See id. ¶¶ 9(d), 11(a).
On August 25, 2015, Cakan applied for and was awarded a B-1/B-2 nonimmigrant visa while he was in Istanbul, Turkey. Id. ¶ 10. B-1 visas permit nonimmigrant aliens to visit the United States for business, and B-2 visas permit nonimmigrant aliens to visit the United States for pleasure. See
On December 23, 2020, Cakan arrived at Boston Logan International Airport in Boston, Massachusetts, on a commercial flight from Istanbul, Turkey. Id. ¶ 14. He identified himself as an LPR, and he presented an unexpired Turkish Passport and an unexpired green card. Id. Cakan informed a CBP officer that he was a permanent resident of the United Arab Emirates (“UAE“), and he presented a resident permit from the UAE. Id. ¶ 15. He also stated that he lived and worked in the UAE, and that he did not own any property in the United States. Id. Cakan did, however, state that he had filed income taxes in the United States in 2018 and 2019. Id. He further admitted that he had remained outside the United States for over eight years and that his original resident permit had expired, requiring him to obtain a nonimmigrant visa to return to the country. See id. ¶ 16.
Later that day, CBP issued Cakan a Notice to Appear (“NTA“), alleging, among other things, that he had failed to establish and maintain a permanent domicile in the United States. See
Between 2021 and 2025, Cakan periodically visited the United States. See ECF 10-1, ¶ 22. The record does not indicate the dates of those visits or the total amount of time that Cakan spent in the United States between 2021 and 2025. CBP issued Cakan three temporary green cards at Logan Airport during this period, each of which was valid for one year. The first was issued on December 1, 2022, ECF 1-1, at 7-8, and the second on November 15, 2023, id. at 5-6. On October 31, 2024, ICE served Cakan by mail with another superseding NTA, which it then filed in Boston Immigration Court on November 13, 2024. See ECF 10-1, ¶ 23; ECF 13, at 16-18. This superseding NTA identified Cakan as an “arriving alien” and again charged that he was subject to removal from the United States under
On February 20, 2025, Cakan was issued another temporary green card, which indicated that it would be valid until February 19, 2026. See ECF 1-1, at 3. The document was endorsed by
On April 9, 2025, Cakan flew into Logan Airport. Id. ¶ 26. When he reached a CBP officer, he presented an unexpired Turkish passport and the temporary green card that he had been issued on February 20, 2025. See id. In contrast to Cakan‘s previous visits, however, the CBP officer determined that Cakan was subject to removal proceedings and detained him. See id. ¶ 27. The government later explained that, upon Cakan‘s arrival to Logan Airport, “CBP considered [him] to be seeking admission to the United States pursuant to
Cakan filed a petition for a writ of habeas corpus pursuant to
DISCUSSION
I. Jurisdiction.
The government first contends that this Court lacks jurisdiction to consider Cakan‘s petition for a writ of habeas corpus. The statute Cakan invokes,
Section 1252(b)(9) provides, in pertinent part:
Judicial review of all questions of law and fact, including interpretation and application of constitutional and statutory provisions, arising from any action taken or proceeding brought to remove an alien from the United States under this subchapter shall be available only in judicial review of a final order under this section. Except as otherwise provided in this section, no court shall have jurisdiction, by habeas corpus under section 2241 of Title 28 or any other habeas corpus provision, or by any other provision of law (statutory or nonstatutory), to review such an order or such questions of law or fact.
Congress enacted Section 1252(b)(9) to “consolidate and channel review of all legal and factual questions that arise from the removal of an alien into the administrative process, with judicial review of those decisions vested exclusively in the courts of appeals.” Aguilar v. U.S. Immigr. & Customs Enf‘t Div. of Dep‘t of Homeland Sec., 510 F.3d 1, 9 (1st Cir. 2007) (italics omitted). While the breadth of this provision is significant, it is not “limitless.” Id. at 10. The First Circuit has adopted a “bounded reading” of Section 1252(b)(9), instructing that the phrase “arising under” “cannot be read to swallow all claims that might somehow touch upon, or be traced to, the government‘s efforts to remove an alien.” Id.; accord Jennings, 583 U.S. at 293-94. The statute does not, under this reading, bar district courts from reviewing claims “that are independent of, or wholly collateral to, the removal process.” Aguilar, 510 F.3d at 11; see Dep‘t of Homeland Sec. v. Regents of the Univ. of California, 591 U.S. 1, 19 (2020) (“[Section] 1252(b)(9) ‘does not present a jurisdictional bar’ where those bringing suit ‘are not asking for review of an order of removal,’ ‘the decision to seek removal,’ or ‘the process by which removability will be determined‘” (ellipses omitted) (quoting Jennings, 583 U.S. at 294-95)). And relevant here, Section 1252(b)(9) does not strip federal courts of jurisdiction to consider habeas petitions filed to challenge a petitioner‘s ongoing detention rather than matters pertaining to removal proceedings. See, e.g., Aguilar, 510
Cakan‘s habeas petition challenges only his ongoing detention. See ECF 1. He does not challenge an “order of removal,” “the decision to seek removal” or “the process by which removability will be determined.” Regents, 591 U.S. at 19 (quotation marks and ellipses omitted). Nor, as counsel emphasized during the hearing on his petition, does Cakan seek a determination from this Court whether, in fact, he has abandoned or relinquished his LPR status within the meaning of
The government resists this conclusion, arguing that the Court lacks jurisdiction because Cakan‘s detention claim—that the CBP officer improperly determined that he abandoned his LPR status and improperly classified him as an applicant for admission subject to mandatory detention under
The government argues that other sessions of this Court have “routinely concluded that [the Court] lacks jurisdiction to consider whether an alien is subject to mandatory detention when such determination is subject to review in Immigration Court.” ECF 10, at 18. But the cases the government relies upon are inapposite. Each was brought by a petitioner who had been detained pursuant to
II. Lawfulness of Detention.
Cakan contends that he is unlawfully detained because CBP did not have authority to determine that he had abandoned his LPR status and classify him as an applicant for admission when he returned to the United States after a trip abroad and presented a valid green card. The statute under which Cakan is detained,
The government does not identify a statute that expressly vests CBP officers with such authority. It relies only on
Construing the statute to empower a CBP officer, rather than an Immigration Court, to make the abandonment determination in the first instance would, however, stand in tension with First Circuit precedent. The First Circuit, like other appellate tribunals, has held that when a non-citizen “has a colorable claim to returning to lawful permanent resident status, the government bears the burden of proving by ‘clear, unequivocal and convincing evidence’ that he abandoned his status . . . and is therefore ineligible for admission into the United States.” Mahmoud, 981 F.3d at 125 (quoting Katebi, 396 F.3d at 466); accord Singh v. Reno, 113 F.3d 1512, 1514 (9th Cir. 1997) (same); Matter of Rivens, 25 I. & N. Dec. 623, 625-26 (BIA 2011) (same). This is a heavy burden, and whether the government has met its burden is a “fact-intensive question.” Mahmoud, 981 F.3d at 126; see Aleem v. Perryman, 114 F.3d 672, 676 (7th Cir. 1997) (“the determination that [LPRs] abandoned their permanent resident status” is “intrinsically fact-specific” (quotation
The fact-intensive nature of the abandonment determination, coupled with the weighty burden borne by the government, suggests that the determination must be made in a forum in which the non-citizen has notice of the evidence against him and an opportunity to contest that evidence or introduce his own evidence of intent to remain in the United States. See generally
Rather than affirmatively arguing that CBP officers possess the authority to determine that an LPR has abandoned his permanent residence status, the government instead argues that the LPR bears the burden to show at a port of entry that he has not abandoned that status. Specifically, the government contends that “[a]n LPR who, by operation of law, is seeking admission under Section 1101(a)(13)(C) is subject to inspection by a CBP officer and carries the burden of demonstrating his admissibility into the United States.” ECF 10, at 3. This contention has multiple flaws. First, Section 1101(a)(13)(C) codifies the opposite of what the government asserts. Rather than providing the means for an LPR to “see[k] admission” into the United States “by operation of law,” Section 1101(a)(13)(C) instructs that LPRs “shall not be regarded as seeking an admission into the United States.”
The government further contended, for the first time at the hearing, that CBP officers often determine, at ports of entry, that LPRs must be treated as applicants for admission because they fall within Section 1101(a)(13)(C)‘s other exceptions. See
Here, the record is clear that Cakan made a colorable claim to returning lawful permanent resident status when he flew into Logan Airport on April 9, 2025. See Mahmoud, 981 F.3d at 125. When examined by the CBP officer, Cakan presented a Form I-551—a green card—that was valid until February 19, 2026. See ECF 1-1, at 3; ECF 10-1, ¶ 26. His green card stated that it “evidenc[ed his] permanent residency” and would serve to facilitate his work and travel. ECF 1-
Upon Cakan‘s showing of a colorable claim to returning LPR status, the government bore the burden to prove, “by ‘clear, unequivocal and convincing evidence’ that he abandoned his status and [wa]s therefore ineligible for admission into the United States.” Mahmoud, 981 F.3d at 125 (quoting Katebi, 396 F.3d at 466). At that point, Cakan remained an LPR, and was not an applicant for admission, because no finding of abandonment or relinquishment had been made by an Immigration Judge following the fact-intensive assessment of the evidence on the question of abandonment, and no final order of removal had entered. See Matter of Lok, 18 I. & N. Dec. 101, 105-06 (BIA 1981) (holding that an LPR retains his status until the entry of a final administrative order of removal), aff‘d, 681 F.2d 107 (2d Cir. 1982); Matter of Rivens, 25 I. & N. Dec. at 626 n.4
The government conceded at the hearing that if Cakan is not lawfully detained under Section 1225(b)(2)(A), there is no lawful basis for his detention pending removal proceedings and he must be released. For all the reasons discussed, the Court agrees and concludes that the only statutes on which the government relies—Sections 1101(a)(13)(C)(i) and 1225(b)(2)(A)—do not justify its detention of Cakan. Cakan has, accordingly, established that his ongoing detention is “in violation of the . . . laws . . . of the United States” and that he is entitled to immediate release.
CONCLUSION AND ORDER
For the foregoing reasons, Cakan‘s petition for a writ of habeas corpus under
SO ORDERED.
/s/ Julia E. Kobick
JULIA E. KOBICK
UNITED STATES DISTRICT JUDGE
Dated: May 19, 2025