"ICE Expected the Court to Accept … [Its] Basis for Detaining Petitioner, but Shield Its Rationale from the Court"
· Reason
From Judge Sanket Bulsara (E.D.N.Y.) Wednesday in Nazarenko v. Genalo:
On May 25, 2026, Respondents filed an answer to the [habeas] petition in this case. That response contained as an exhibit an INA § 236(a) Initial Custody Determination ("INA § 236(a)"). The document was redacted—including the date and time of the arrest of Petitioner and the "Discussion" outlining the basis for a finding of dangerousness. ICE took it upon itself to redact the document, claiming it had been "authorized for release on the condition that certain information, regarding the assessment of dangerousness, be redacted."
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The Court immediately noted that the filing of such a document violated its Individual Practices. And importantly, there was no version of the document filed on the docket for the Court to view in unredacted form. In other words, ICE expected the Court to accept that it properly conducted an evaluation of Petitioner's dangerousness, and the basis for detaining Petitioner, but shield its rationale from the Court.
Such practices are repugnant to the rule of law, and ICE is warned that further obfuscation and misuse of sealing and redaction before the undersigned will lead to sanctions against the agency. The Court herein details the reasons why it will not tolerate such practices in the future.
To its credit, upon order that the information be provided to the Court, the United States Attorney's Office filed an unredacted version of the document on the docket. With that unredacted version there was a motion to seal, to keep the information from all public view. The motion is denied.
The motion claims that the information contained therein is protected by the law enforcement privilege. This misapprehends the posture of the case and the filing. The Court is not conducting a discovery exchange with the parties, where one side can claim privilege and avoid scrutiny of a document. Respondents have relied upon the INA § 236(a) to justify their detention of Petitioner, an extraordinary remedy in a civil proceeding, and to respond to the allegation that his detention violated due process.
Having produced the document, Respondents cannot assert a privilege over its contents. They cannot also rely on the document but then shield its contents from the other side (and the Court). See In re Sims (2d Cir. 2008) ("[A] party cannot partially disclose privileged communications or affirmatively rely on privileged communications to support its claim or defense and then shield the underlying communications from scrutiny by the opposing party."). "The unfairness courts have found which justified imposing involuntary forfeiture [of a privilege] generally resulted from a party's advancing a claim to a court or jury (or perhaps another type of decision maker) while relying on its privilege to withhold from a litigation adversary materials that the adversary might need to effectively contest or impeach the claim." And that unfairness arises when Respondents seek to use the existence of a custody determination to argue—as they have—that Petitioner received due process but simultaneously preclude him (and the Court) from examining the basis on which the challenged decision was rendered. Privileges cannot be used as a shield and a sword.
The law enforcement privilege also is simply unavailable. As an initial matter, "[n]o affidavits have been submitted to the Court … making an official claim of privilege by the executive level officials of the departments having control over the requested information, i.e. ICE, OIA and USASDNY, based on personal consideration by those officials of the matter, specifying the information for which the privilege is claimed and explaining why it falls properly within the scope of the privilege." That alone makes the privilege out of reach for Respondents: "[n]either an unofficial invocation of the law enforcement privilege by counsel representing the government nor that counsel's assertions, with respect to the privilege, can be used to meet the threshold requirements imposed on the party invoking the law enforcement privilege." See also In re Sealed Case (D.C. Cir. 1988) (To assert the privilege: "(1) there must be a formal claim of privilege by the head of the department having control over the requested information; (2) assertion of the privilege must be based on actual personal consideration by that official; and (3) the information for which the privilege is claimed must be specified, with an explanation why it properly falls within the scope of the privilege.").
But even the conclusory assertions offered by Respondents do not satisfy the assertion of the privilege. The privilege applies to "law enforcement techniques and procedures, information that would undermine the confidentiality of sources, information that would endanger witness and law enforcement personnel or the privacy of individuals involved in an investigation, and information that would otherwise interfere with an investigation."
Respondents assert privilege over the basis of an ICE custody determination. But custody determinations have nothing to do with law enforcement techniques, sources, or privacy. Custody determinations are not privileged—they are subject to review by supervisors, agencies, and courts, and are not conducted in secret. And as applied to the determination here, Respondents appear to believe that because the ICE officer relied on an Interpol notice to detain Petitioner—they are entitled to invoke the privilege. But an Interpol notice is not a secret law enforcement technique. The existence of an Interpol notice is often a matter of public record. The fact that a notice exists against a person tells us nothing about law enforcement techniques or any matter that falls comfortably within the privilege. For example, it is not information "pertain[ing] to ICE's removal operations and techniques and the logistics of removal." In this case, the reference to the Interpol notice—that it was used to detain Petitioner—reveals no more information about the notice and ICE's use of the document than would be apparent from a privilege log.
If it is redaction that Respondents seek—that is, to prevent the public from knowing the content of the document—then they should have argued that redaction satisfied the [Lugosch v. Pyramid Co. of Onondaga (2d Cir. 2006)] factors. Those factors govern the protection of certain information from public disclosure, notwithstanding the First Amendment interests in public access. Respondents do not acknowledge those factors …, let alone attempt to satisfy them.
In any event, there is no basis for permitting redaction. "[I]t is well established that the public and the press have a qualified First Amendment right to attend judicial proceedings and to access certain judicial documents…. The Second Circuit has extended this right of access to civil trials, pretrial suppression hearings, plea agreements and plea hearings, information on the payment of court-appointed counsel, bail hearings, live voir dire proceedings, sentencing hearings, and even administrative hearings."
The custody form—and the basis for custody—fits comfortably within this scope of documents for which public access is generally accorded. And the document is central to the Court's decision-making on the petition. As the Court's decision granting the writ—which analyzes the legal basis for ICE's conclusion about Petitioner's dangerousness, concluding it violated due process—illustrates, this document is a quintessential judicial document.
And here's the court's opinion (released Tuesday) on Nazarenko's substantive claims:
Petitioner Alexey Nazarenko ("Nazarenko"), a citizen of Russia who has lived in the United States since 2019, was arrested on May 21, 2026, by U.S. Immigration and Customs Enforcement ("ICE") officers at an asylum interview with the U.S. Citizenship and Immigration Services ("USCIS"). Nazarenko was lawfully admitted into the United States on a visitor visa on April 4, 2019, and filed an application for asylum for himself and his family members on September 27, 2019.
Nazarenko is seeking asylum due to political persecution in Russia. He was an elected deputy of the Stavropol Territory Duma in Russia, which allegedly fabricated criminal proceedings against him and his family members, and also made a variety of other threats. His asylum application has been pending for seven years. And during that time, he has made every single one of his asylum and immigration appointments without fail.
Nazarenko's wife and three children (two of whom are minors) reside in the United States. He has an established business in New York, which he relies on to provide for his family, and has paid his taxes. Nazarenko has no criminal history.
As part of his asylum process, Nazarenko was directed to appear for an interview by USCIS. It was during this interview, on May 21, 2026, that he was arrested by ICE. The morning of the interview, ICE executed a warrant for arrest, an I-200, and a Notice to Appear ("NTA"), which placed him in removal proceedings….
The sole basis for concluding that Nazarenko should remain in custody was that he "is wanted by INTERPOL in Russia for the crime of Fraud if convicted he faces up to 10 years in prison." This turns out to be false. And either ICE deliberately misstated facts or failed to investigate them before detaining Nazarenko.
The Court directed Respondents to provide the document that ICE relied upon to conclude that Nazarenko is wanted by Interpol. In response, Respondents submitted a letter indicating that Interpol's notice was not a "Red Notice," but what was known as a "Diffusion." "A 'diffusion' is a request for cooperation that is processed through each Interpol member country's national central bureau and, while less formal than a Red Notice, it seeks the arrest of a wanted person with a view towards extradition."
{This Court has ruled in another case that Red Notices—which differ from diffusion notices—cannot be the purported basis for arrest and detention by ICE. See Yeleshev v. LaRocco (E.D.N.Y. May 14, 2026) ("A Red Notice confers no detention authority, and no provision of the Immigration and Nationality Act ('INA') permits detention of an individual based solely upon a Red Notice.").}
The remarkable thing is that Respondents now concede—days after Nazarenko was detained and only after the Court directed production of the document—that "the Diffusion is not currently active," and has not been since March 2026. (In fact, the document states "Warning. File under review[.]") Nonetheless, it was the sole basis for concluding that Nazarenko was a danger to the community and could not be released.
There is more. The diffusion notice—when it was valid—was issued back in 2019. In the almost seven years since the notice was issued, Nazarenko has appeared for repeated check-ins with immigration authorities related to his pending asylum application. And his ties to the United States have grown stronger, having established a business, enrolled his children in school here, and never engaging in criminal conduct. It is confounding how, after the passage of years, the diffusion notice (an inactive one no less), now could be the sole basis to conclude that Nazarenko is a danger to the community. The more straightforward inference is that the custodial determination conducted by ICE was a sham.
The process appears to have violated ICE's own internal regulations and guidance regarding Interpol notices. ICE personnel may not "rely exclusively on Red Notices or Wanted Person Diffusions to justify enforcement actions or during immigration proceedings." ICE Directive 15006.1 (Aug. 15, 2023). And "[t]he first thing ICE personnel must do upon learning about the existence of a Red Notice or Wanted Person Diffusion is … to verify that it remains active and has not been suspended, withdrawn, or expired. ICE personnel cannot use suspended, withdrawn, or expired Red Notices or Wanted Person Diffusions." Id. ¶ 5.1.
"[A] Red Notice is not independently vetted for factual and legal justification, its reliability corresponds with that of the foreign nation's arrest warrant." Yeleshev. See id. at n.7 (citing Cate Brown, Max Hudson, & Julia Luft, Russia Using Interpol's Wanted List to Target Critics Abroad, Leak Reveals, BBC (Jan. 25, 2026), https://perma.cc/5ADV-EL7A (reporting that "Russia is using Interpol's wanted lists to request the arrest of people such as political opponents … claiming that they have committed crimes")). In this case, Nazarenko had an asylum application that indicated the criminal cases initiated against him by Russia were politically motivated and retaliatory.
In such a situation, ICE guidance requires an officer to request additional information to make sure that the notice does not violate Interpol's rules, consult with the Department of Justice, "[r]esearch the person" and the notice to determine "whether there are indicia that the person may be the target of retaliation, harassment, or persecution." ICE Directive 15006.1 ¶ 5.2. Such inquiries or investigation do not appear to have been done—at least none are disclosed in the custody determination form or the documents filed by Respondents.
Despite its own directive to view Interpol notices like the present one skeptically, and to disregard invalid ones, ICE used Nazarenko's inactive diffusion notice to conclude he was dangerous. But an Interpol notice initiated by Russia—and its attendant lack of reliability—suggesting that a person committed fraud, does not on its face, and certainly standing alone, suggest dangerousness, particularly when it is an inactive one. In fact, ICE's own form—the one it used in this case—requires it to consider a bevy of additional factors:
the extensiveness and seriousness of any criminal arrest or conviction; the length of time that has passed since any such arrest or conviction; the sentences imposed; criminal history not known to the immigration officer but disclosed by the noncitizen; statements from the noncitizen regarding dangerousness or illegal conduct; evidence of rehabilitation; compliance with sentences; employment history and ties to the community.
These criteria—Nazarenko's lack of criminal history, his seven-year compliance with asylum and immigration appointments, family and business ties—were plainly not considered. And ICE's failure to do so requires granting the writ.
As further evidence—though none is necessary—of the botched custody evaluation is the fact there is no indication that flight risk was even evaluated. (Custody Determination at 2 (marking neither "yes" nor "no" as to whether the individual poses a flight risk and providing no discussion)). And then there are the potential other elements that should be considered in making a custody determination—including vulnerabilities that would counsel in favor of release. The form also marks both "yes" and "no" as to whether the officer had identified a "special vulnerability," making no reference to what that vulnerability would be and how it factored, if at all, into the custody determination. {Presumably, this refers to Nazarenko's medical conditions, (see Pet. ¶ 41 (detailing, among other things, his ongoing mental health treatment for PTSD and spinal pain control therapy for an injury sustained during an assault in Russia)), or his asylum claim, but the Court cannot determine which on this record.}
This cavalcade of errors—the conclusory evaluation; the exclusive reliance on a diffusion notice alone for a dangerousness evaluation; the failure to consider other factors about Nazarenko's background, presence, and criminal history; and the failure to consider any special vulnerabilities—demonstrate that Nazarenko was not provided with the process to which he is entitled, rendering his detention invalid….
[T]here is [also] a separate and independent ground to conclude that his arrest was also likely illegal and violated due process.
On May 21, 2026, ICE placed Nazarenko into removal proceedings, which as the name suggests, are intended to effectuate his removal from the United States. Yet, the I-797 Notice of Action USCIS issued in 2019 to him, states unequivocally "[y]ou may remain in the U.S. until your asylum application is decided." For ICE to now arrest Nazarenko—with full knowledge of his asylum application, at an asylum interview no less, after advising him that he could remain here without the threat of removal while that application was pending, and in the absence of any changed circumstances—is a form of misconduct. And "affirmative misconduct by the Government may create an estoppel against the Government in immigration cases." Akbarin v. Immigr. & Naturalization Serv. (1st Cir. 1982) (collecting cases); see also Corniel-Rodriguez v. Immigr. & Naturalization Serv. (2d Cir. 1976) ("[T]his court and others have held that the Government's improper actions may preclude it from deporting an alien, even if the language of the Immigration & Nationality Act, read in vacuo, might suggest a difference result."); e.g., Alfaro v. Mullin (E.D.N.Y. 2026) ("As the recipient of an unexpired period of deferred action and a valid work authorization from USCIS—by which the agency committed to take no steps to effect his removal and permitted him to work in the U.S.—Petitioner could not lawfully be arrested and detained by ICE, particularly in absence of changed circumstances and without notice or opportunity to be heard.").
Respondents are directed to effectuate Nazarenko's release by May 26, 2026 at 10:00 P.M. and file a letter on the docket confirming Nazarenko's release by that time. Respondents are enjoined from detaining Nazarenko absent further direction from this Court. Respondents may not use ICE ankle monitors or similar technology to monitor Nazarenko, because in this Order the Court provisionally grants the writ.
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