Bersain Francisco Perez De Leon, a Guatemalan national with three unlawful entries and two prior removals, has been held at Federal Correctional Institution Berlin in northern New Hampshire since ICE apprehended him in Massachusetts in February 2025. After USCIS determined he lacked a credible fear of torture or persecution, and an immigration judge agreed, De Leon petitioned the First Circuit for review. A First Circuit panel stayed his removal on May 21, 2025, and that stay remains in place while his appeal proceeds.
ICE conducted a 90-day custody review in May 2025 and decided to keep De Leon detained, concluding that his two prior removals make him a flight risk. It then skipped the 180-day review required under 8 C.F.R. § 241.4(k)(2)(ii), telling the court that the First Circuit's stay provided good cause to postpone under 8 C.F.R. § 241.4(k)(3). ICE represented that De Leon's next review was not scheduled until May 2026.
Judge Paul J. Barbadoro of the District of New Hampshire rejected that rationale as a misreading of the regulation. The same provision that permits postponements for good cause also unambiguously directs that ICE must review an alien's custody if the alien is not removed as anticipated when the postponement was first made. Treating a stay of removal as good cause to skip reviews, the court reasoned, would be a nonsensical reading of the regulation: the stay itself triggers the obligation to resume the ordinary review schedule, circularly and immediately undoing the postponement.
The court also held that an alien's nonfrivolous use of legally available avenues to challenge removal cannot constitute good cause to suspend the regulatory right to periodic custody reviews while those proceedings play out, and the same logic applies to a reviewing court's decision to temporarily enjoin removal pending adjudication.
On the broader question of release, the court denied De Leon's Zadvydas claim. Applying the First Circuit's decision in G.P. v. Garland, 103 F.4th 898 (1st Cir. 2024), the court held that De Leon's detention is not indefinite — he will either prevail at the First Circuit or be removed — and that his likelihood of success on the merits of his withholding claim cannot be assessed in a collateral habeas proceeding. The court also denied his request for a bond hearing, holding that under Johnson v. Guzman Chavez, 594 U.S. 523 (2021), aliens subject to reinstated removal orders and detained under 8 U.S.C. § 1231 are not entitled to such a hearing.
The court granted the petition on the narrow regulatory ground, ordering ICE to conduct the overdue custody review as soon as practicable, with notice and an opportunity to be heard as required by 8 C.F.R. § 241.4(h), and barring the government from using the First Circuit stay as justification to postpone any further reviews. The parties were ordered to file a status report within fourteen days.