The federal government asked a judge in Boston on Thursday, November 12, to take back a rule that has forced Immigration and Customs Enforcement (ICE) to give three days' warning before it moves certain detainees out of New England — a short notice period that lawyers say is often the only thing standing between a detainee in Massachusetts and the loss of a bond hearing after a transfer to Texas or Louisiana.

Source: Boston Sunday

Government lawyers made the request at a video hearing on Thursday afternoon before U.S. District Judge Patti B. Saris of the U.S. District Court for the District of Massachusetts, according to the court's hearing notice. They told the judge the notice period is straining detention operations and pointed to a shortage of beds for women and children, Law360 reported. No written ruling had appeared on the public docket as of Friday afternoon, November 13.

The case and the rule at the centre of the fight

The case is Guerrero Orellana v. Moniz, No. 1:25-cv-12664-PBS, a class action brought on behalf of people arrested or detained in Massachusetts, or in the area served by the immigration courts in Massachusetts, whom the government has not alleged were admitted or paroled into the country. There are exceptions for people in expedited removal, people under final removal orders and others. The named petitioner, Jose Arnulfo Guerrero Orellana, is a Salvadoran national who had lived in the United States for more than twelve years before ICE arrested him during a vehicle stop in Everett, Massachusetts, in September 2025.

Source: Civil Rights Litigation Clearinghouse

On September 22, Judge Saris ordered that ICE “provide notice of the intended transfer outside of the First Circuit of any class member who requests a bond hearing to the class member, the class member's attorney (if known), and class counsel no fewer than 72 hours before the transfer is initiated.” The same order required a revised class notice in English, Spanish, Portuguese and Haitian Creole, and access to a telephone to call a lawyer within three hours of receiving it. The order does not forbid any transfer. It requires warning. ICE has had to give the 72 hours' notice since October 5.

Why a transfer can decide whether a bond hearing happens at all

The fight exists because the law on bond hearings now depends on geography. Since July 2025, the Department of Homeland Security has taken the position that people who entered the country without inspection and are later apprehended inside the country must be held without a bond hearing for the length of their removal cases, regardless of how long they have lived in the United States, as Judge Saris described it. On December 19, 2025, she rejected that position for the class, ruling that class members are held under 8 U.S.C. § 1226(a), a section of immigration law that allows release on bond. The U.S. Court of Appeals for the First Circuit affirmed on August 13, 2026, and its mandate issued on October 6.

Source: U.S. Court of Appeals for the First Circuit

Nine federal appeals courts have reached the same conclusion as the First Circuit, according to the class's lawyers. Two have not: the Fifth Circuit, which covers the large detention centres in Texas and Louisiana, and the Eighth Circuit. On October 23, the full Fifth Circuit ruled in Rodriguez v. Vergara that, as the class's brief puts it, people in the class members' position have no statutory or constitutional right to a bond hearing. The Supreme Court has agreed to settle the national question in a case from the Second Circuit, Rhoney v. Barbosa da Cunha, No. 26-104, and the class's lawyers expect a decision in mid-2027. At a September 14 status conference, government counsel said immigration judges in other circuits would need to conduct a “choice of law analysis” before deciding whether a transferred class member gets a bond hearing, and declined to promise not to transfer people before their hearings.

What the government argues

On October 20, the Justice Department's Office of Immigration Litigation moved for reconsideration under Federal Rules of Civil Procedure 59(e) and 60(b) (ECF 214). Its memorandum (ECF 215) makes three main arguments. First, it says the notice rule is barred by 8 U.S.C. § 1252(f)(1), a provision that forbids lower courts from issuing class-wide orders that “enjoin or restrain the operation” of certain immigration statutes; in the government's view, a mandatory three-day hold restrains its authority under § 1231(g) to “arrange for appropriate places of detention,” which it argues necessarily includes the power to transfer. Second, it says the court skipped the “reasonable notice and hearing” that 28 U.S.C. § 2202 requires: the judge raised transfers on her own at the September 14 conference, the parties had two days to file briefs, and the order she issued differed from the options discussed.

Third, the government offers its operational evidence now, in a declaration from John Charpentier, an acting deputy field office director in ICE's Boston field office, which covers all six New England states (ECF 216). Beds outside the region are offered “first-come, first-served,” he wrote, and can be lost if a transfer waits three days. Detainees may have to wait at the field office's hold room in Burlington, Massachusetts, which he described as “a short-term, temporary space.” He said there is “extremely limited local bedspace” for women, so their transfers are routine, and “no local bedspace for juveniles.” Serving the notices through Justice Department lawyers to class counsel adds “an additional 24 hours or more,” he wrote. Because the order covers “any class member who requests a bond hearing,” Charpentier said, his office is sending notices for nearly every class member it plans to move, including people who already had a bond hearing, people who withdrew the request and people who accepted voluntary departure. He also said an August spike in flights out of Massachusetts, which the class had pointed to, came from an enforcement operation in Connecticut and a cyberattack that kept the Plymouth County Correctional Facility from taking new ICE detainees from about August 13 to September 1.

What the class argues

The class's lawyers — from the ACLU affiliates in Massachusetts, New Hampshire and Maine, Foley Hoag, Anderson & Kreiger, Araujo & Fisher and the Harvard Immigration and Refugee Clinical Program — filed their opposition on November 3 (ECF 217). They say reconsideration is for manifest errors and genuinely new evidence, not for arguments a party could have made the first time, and that the government had the September conference, a round of briefing and six more days before the order to raise its operational concerns, and did not. On the statute, they say § 1252(f)(1) does not reach a notice requirement, because the order does not stop any transfer, and because § 1231(g) concerns building and running detention facilities rather than moving people. They cite the Second Circuit's 2025 statement in Ozturk v. Hyde that the provision “does not address transfers of noncitizen detainees at all,” and an October 1 ruling from a federal judge in Seattle that notice “does not enjoin that transfer; it simply provides an opportunity” to challenge it individually.

The class also put numbers on how the rule has worked. Christopher E. Hart, one of the class counsel, said in a declaration that 49 notices had arrived since the first on October 5: 44 for transfers to Louisiana, four to Arizona and one to Texas. Irene C. Freidel, detention program manager at the PAIR Project in Boston, which represents detainees at Plymouth and at the Wyatt Detention Facility in Central Falls, Rhode Island, said in a declaration that her program received about 21 referrals. Four people, the program believes, were moved before staff could interview them. About nine wanted voluntary departure, and nothing more was done. Seven asked for help, and habeas petitions were filed. Of four bond hearings completed, two ended in denials, one decision was pending and one person was granted bond of $15,000. Freidel said some people sign voluntary-departure forms during processing at Burlington, where the forms are given in English, then choose a bond hearing after talking to a lawyer. Voluntary departure from custody usually takes weeks or months, she said, leaving time for notice. She also wrote that transfers “are often serial”: once out of the region, a detainee can be moved again within hours.

Why this matters beyond New England

For immigrant families — including Punjabi and other South Asian residents of Massachusetts and the wider Northeast who follow immigration enforcement closely — the case is a practical one. A detainee held in New England today has a court-recognised right to ask an immigration judge for bond under the First Circuit's ruling. The same person, transferred to Louisiana or Texas before that hearing, lands in the Fifth Circuit, where the full appeals court has now said no such right exists. Where ICE holds a person can therefore decide whether release on bond is even available while a removal case runs, a process that can take months or years. The notice rule is the mechanism that gives a detainee and a lawyer a short window — three days — to ask a court to intervene before that geography changes.

What happens next

Judge Saris can keep the rule, drop it, or narrow it — for example by excluding people who have already had a bond hearing or who have chosen voluntary departure, the categories the government says are swept in. The class has asked, if the judge is inclined to change the rule, for targeted discovery first. Either side can then go back to the First Circuit, and the government could seek a stay. The larger question — whether people in this class are entitled to a bond hearing at all — is now before the Supreme Court in Rhoney, with a decision expected by mid-2027. Boston Sunday reported it is seeking comment from ICE, the Justice Department's lawyer in the case and class counsel, and will add any response. No written ruling had appeared on the public docket as of Friday afternoon.