Derisma v. MullinDerisma v. Mullin
Petitioner has been detained by the Department of Homeland Security (“DHS“) and parole has been terminated without prior written notice. Pending is his Verified Petition for Writ of Habeas Corpus in which he argues federal statutes and the Due Process Clause require that he be released or granted a hearing. The Court agrees with Petitioner‘s Constitutional arguments, and on that basis, it concludes the Petition for Writ of Habeas Corpus shоuld be GRANTED.
BACKGROUND
Shnayky Derisma is a native and citizen of Haiti. He has lived in the United States since 2023. To gain entry into the U.S., Mr. Derisma made an appointment through DHS‘s CBP One app. He appeared for his appointment. DHS issued him a Notice to Aрpear and then paroled him into the United States. Since then, Mr. Derisma has lived lawfully, building his home and community here. He filed an asylum application and received valid work authorization. He followed every requirement plаced on him.
On July 9, 2026, Mr. Derisma was stopped by immigration officials while he was driving in Indiana. The stop resulted in no citation, no charge, and no explanation that pointed to
Mr. Derisma lived openly and lawfully under long-standing protections. DHS had already exercised its discretion to defer his removal and authorized his presence in the United States. The safeguards he had relied on for three years no longer applied, and the process that should have protected his basic liberties instead left him without a meaningful avenue to challеnge his detention. Respondents do not contend that this status was revoked prior to his detention.
Now, he has filed this writ seeking release, or at a minimum, any process at all. The matter has been fully briefed by each party. Petitionеr bases the writ on statutory and Constitutional grounds under the Fifth Amendment.
While the statutory grounds upon which Petitioner relies has, for the past twenty-nine years and five presidential administrations, been interpreted to mean that he was entitled to a bond hearing during his removal proceedings, the new presidential administration has adopted a novel interpretation of that statutory scheme.
A divided panel of the Eighth Circuit recently agreed with this administration‘s interpretation, in a decision still subject to appeal. At this time, however, this Court is bound by the panel‘s interpretation of the statutory scheme.1 So, given this change in long standing statutory interpretation, this Court is left to analyze the writ on Constitutional grounds.
DISCUSSION
“No person shall . . . be deprived of life, liberty, or property, without due process of law.”
Respondents claim Petitioner is treated as an “applicant for admission” under
The petitioner in Thuraissigiam did not seek release from custody; he sought additional review of his asylum claim. The Court expressly nоted that “the legality of his detention is not in question.” Id. at 122. Petitioner here does not ask this Court to admit him or to alter his immigration status, so the only holding in Thuraissigiam is inapposite. Here, Petitioner seeks only what due process requires: an oppоrtunity to have his custody reviewed.
These distinctions are dispositive and Thuraissigiam is inapposite. A lengthy discussion of the plenary power to control which individuals outside the United States may be permitted to enter is not the relevant question here. The issue here is whether the United States can suddenly and indefinitely detain a three-year resident without prior noticе and with zero review or oversight.
The Court in Demore did not discuss detention of all noncitizens. Instead, it explicitly discussed “detention during removal proceedings for a limited class of deportable aliens” who had committed serious crimes. Id. at 518. It found that mandatory detention under
Due Process Analysis
“Freedom from imprisonment—from government custody, detention, or other forms of physical restrаint—lies at the heart of the liberty that the [Due Process] Clause protects.” Zadvydas v. Davis, 533 U.S. 678, 679 (2001). Procedural due process imposes constraints on governmental decisions which deprive individuals of “liberty” or “property” interests within the meaning оf the
The Court disagrees with Respondents’ argument that Petitioner‘s due process rights are limited solely to the issuance of a Notice to Appear. Under Mathews, Due Process is “flexible” and:
identification of the specific dictates of due procеss generally requires consideration of three distinct factors: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and thе probable value, if any, of additional or substitute procedural safeguards; and finally, the Government‘s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entаil.
424 U.S. at 335 (emphasis added).
Private Interest
Undoubtedly, the private interest at stake here “is the most elemental of liberty interests—the interest in being free from physical detention[.]” Hamdi v. Rumsfeld, 542 U.S. 507, 529 (2004). Petitioner has been held in a county jail—in conditions indistinguishable from criminal incarceration—since July 9, 2026. He is unable to return to the life he has created over the last three years. Every day that passes under this unlawful detention is a day that cannot be recovered. See Velasco Lopez v. Decker, 978 F.3d 842, 851 (2d Cir. 2020) (first Mathews factor strongly satisfied where petitioner was “locked up in jail” and “could not maintain employment or see his family or friends or others outside normal visiting hours“).
Risk of Erroneous Deprivation
After the Fifth Circuit‘s ruling on interpretation of the statutory arguments in this case, the court in Alfonzo-Mujiuca v. Thompson, Case No. SA-26-CA-00457-XR (W.D. Tx. 03/13/2026),
Our immigration law has long recognized that noncitizens have an interest in an individualized hearing prior to detention in connection with immigration proceedings. See Yamataya, 189 U.S. at 101. And the Supreme Court has required individualized hearings for deprivations of interests less fundamental than Petitioner‘s interest in freedom from detention. See Goldberg v. Kelly, 397 U.S. 254, 268 (1970) (requiring an individualized hearing prior to the termination of welfare benefits). Here, the risk of an erroneous deprivation of Petitioner‘s rights is high. Without an individualized hearing, there is substantial risk that noncitizens with a substantial presence in the United States who pose neither flight risk nor danger to the community will be detained. An individualized assessment before an immigration judge substantially reduces this risk. Cf. Demore, 538 U.S. at 531–32 (Kennedy, J., concurring) (reasoning that “due process requires individualized procedures to ensure there is at least some merit to the” charge and detention). An individualized analysis ensures the purpose of detention is not punitive.
“The fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner.” Mathews at 333. Petitioner‘s continued detention without an opportunity to be heard is the type of erroneous deprivation Mathews intends to stop. The basis for his detention requires, and deserves, a hearing. Nothing in the record shows Petitioner poses a danger or flight risk. He has lived in the United States for the last three years and has complied with his parole conditions. He has no criminal convictions. Furthermore, he has a pending asylum application that requires his presence here in the United States to adjudicate.
Balancing of Interests
The final factor directs the Cоurt to weigh the private interests at stake and the risk of erroneous deprivation of those interests against Respondents’ interests in persisting with the regulation, including the fiscal and administrative burdens of an additional or substitute procеdural requirement. Mathews at 335. The Government identifies no interest in detaining Petitioner based
In sum, the Mathews factors weigh in favor of Petitioner, and the Court finds that his continued detention violates due process.
Immigration courts havе concluded there is no jurisdiction to conduct a bond hearing. DHS provides no alternative mechanism for individualized custody review. Petitioner has no forum, administrative or judicial, through which he may seek release based on his circumstances. This is not minimal process. It is zero process. Respondents’ position, that no such process is required, cannot be reconciled with the Fifth Amendment.
CONCLUSION
The Court concludes Petitioner‘s right to procedural due рrocess has been violated. Accordingly, the Petition for Writ of Habeas Corpus is GRANTED as follows.
- Respondents are ORDERED to grant Petitioner a bond hearing within ten (10) days of this Order or to release Petitioner from custody.
- In the event Petitiоner is released, Respondents shall make accommodations available for him until such time as arrangements can be made for Petitioner to be returned to the location of arrest or other location agreed by the parties.
- Petitioner shall promptly report to the Court any failure to comply with this Order by Respondent.
- It is FURTHER ORDERED that Respondents are enjoined from relocating Petitioner outside the jurisdiction of this Court prior to cоmpliance with this Order.
IT IS SO ORDERED.
/s/ Douglas Harpool
DOUGLAS HARPOOL
UNITED STATES DISTRICT JUDGE