Perez v. Rosa et al

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Christian Javier Calderon Perez,
Petitioner,
v.
Luis Rosa, Jr., et al.,
Respondents.
No. CV-26-00038-PHX-KML (JZB)
ORDER
Petitioner Christian Javier Calderon Perez’s petition for writ of habeas corpus
asserted, among other issues, that Perez was entitled to a bond hearing. Perez filed a motion
for temporary restraining order (Doc. 11) and a motion to expedite (Doc. 18.) While this
litigation was pending, Perez’s immigration proceedings continued. On March 2, 2026, he
was issued a removal order and he waived appeal. (Doc. 24 at 1.) Issuance of a final order
of removal is a material change such that the claims in the current petition no longer appear
viable.
“[W]hen an alien is ordered removed, the Attorney General shall remove the alien
from the United States within a period of 90 days.” 8 U.S.C. § 1231(a)(1)(A). “During
the [90-day] removal period, the Attorney General shall detain the alien.” 8 U.S.C.
§ 1231(a)(2). After the 90-day removal period, the Attorney General has discretionary
authority to detain certain aliens or to release them under an order of supervision. 8 U.S.C.
§ 1231(a)(6). However, an alien’s detention for six months following the beginning of the
removal period is “presumptively reasonable.” Zadvydas v. Davis, 533 U.S. 678, 701
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(2001). “[A]n alien ordered removed whose removal is not reasonably foreseeable cannot
raise a colorable claim for release under the Due Process Clause of the Fifth Amendment
until at least 90 days of detention [under § 1231(a)(2)] have passed.” Khotesouvan v.
Morones, 386 F.3d 1298, 1299 (9th Cir. 2004). However, it is unclear whether an alien can
raise a colorable claim for release in the period between 90 days and six months. Compare
Akinwale v. Ashcroft, 287 F.3d 1050, 1052 (11th Cir. 2002) (the “six-month period must
have expired at the time [the habeas petition] was filed in order to state a claim under
Zadvydas”), with Hoang Trinh v. Homan, 333 F. Supp. 3d 984, 994 (C.D. Cal. 2018) (“The
Supreme Court in Zadvydas outlined a ‘guide’ for approaching these detention challenges,
not a prohibition on claims challenging detention less than six months.”) (internal citation
omitted).
Because Perez’s removal period began less than 90 days ago, his current detention
is mandatory. Therefore, his motions regarding immediate release are denied and the
claims in his current petition are dismissed. If respondents are unable to remove Perez
within 90 days of his removal order, Perez may file an amended petition asserting a claim
based on prolonged detention.
IT IS ORDERED the Motion for Temporary Restraining Order (Doc. 11) and
Motion to Expedite (Doc. 18) are DENIED.
IT IS FURTHER ORDERED the petition (Doc. 1) is DISMISSED WITH
LEAVE TO AMEND. No later than June 2, 2026, petitioner may file an amended
petition. The Clerk of Court shall enter a judgment of dismissal with prejudice in the event
no amended petition is filed by that date.
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IT IS FURTHER ORDERED if an amended petition is filed, respondents shall
respond to that petition within ten days.
Dated this 1st day of May, 2026.
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