Alvarez Hereira v. Baltazar

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Nina Y. Wang
Case No. 26-cv-03507-NYW
RAUDEL ALVAREZ HEREIRA,
Petitioner,
v.
JUAN BALTAZAR,
Respondent.
MEMORANDUM OPINION AND ORDER
This matter is before the Court on the amended Application for a Writ of Habeas
Corpus Pursuant to 28 U.S.C. § 2241 (the “Petition”). 	[Doc. 5]. 	Respondent filed a
Response to the Petition, [Doc. 8], and a supplemental Response to the Petition,
[Doc. 15]. 	Petitioner has not filed a reply, and the time to do so has expired. 	For the
reasons herein, the Petition is respectfully DENIED without prejudice.
BACKGROUND
Petitioner Raudel Alvarez Hereira (“Petitioner” or “Mr. Alvarez Hereira”) is a citizen
of Cuba who entered the United States on or about December 5, 2019. [Doc. 5 at 5]. He
alleges that immigration proceedings occurred on March 4, 2020, however, he was “never
notified or given a meaningful opportunity to appear in any [immigration] proceedings, did
not participate, and did not waive his rights.” [Id.]. Petitioner further contends that a final
order of removal was “never . . . entered” against him, however, if one does exist,
Respondents 	“must produce” the document. 	[Id.]. 	On July 8, 2026, Petitioner was
arrested by ICE and taken into custody near his workplace in Miami, Florida and then
Case No. 1:26-cv-03507-NYW Document 16 filed 10/13/26 USDC Colorado pg 1
of 6

2
transferred to a detention facility in Colorado. [Id. at 5–6].
As best the Court can tell, Petitioner asserts that his detention violates the Due
Process Clause of the Fifth Amendment. 	[Id. at 2, 6]. 	He asks this Court to order
Respondent 	to 	“identify 	the 	statutory 	authority 	for 	his 	detention, 	justify 	continued
detention,” and “provide a meaningful custody review or bond hearing.” [Id. at 5, 7].
LEGAL STANDARD
Section 2241 of Title 28 authorizes a court to issue a writ of habeas corpus when
a person is “in custody in violation of the Constitution or laws or treaties of the United
States.” 28 U.S.C. § 2241(c)(3). “[T]he essence of habeas corpus is an attack by a person
in custody upon the legality of that custody, and . . . the traditional function of the writ is
to secure release from illegal custody.” Preiser v. Rodriguez, 411 U.S. 475, 484 (1973).
“Challenges to immigration detention are properly brought directly through habeas.”
Soberanes v. Comfort, 388 F.3d 1305, 1310 (10th Cir. 2004) (citing Zadvydas v. Davis,
533 U.S. 678, 687–88 (2001)).
On August 24, 2026, Respondent filed a response that did not address the merits
of the Petitioner’s claim(s). 	Instead, Respondent clarified that Petitioner is lawfully
detained pursuant to 8 U.S.C. § 1231(a) and stated:
for purposes of this specific case, Respondent is not submitting a brief in
opposition to the Petition. Respondent recognizes that the Court may then
decide to grant the Petition and award appropriate relief. Respondent
submits that if the Court does grant the Petition, the appropriate relief would
be an order directing Petitioner’s release on conditions to be set by the
Department of Homeland Security. See 8 U.S.C. § 1231(a)(3) (stating that
an alien who is not removed during the removal period “shall be subject to
supervision under regulations” and providing the Attorney General with the
authority to issue regulations on terms of supervision for an alien released
pending removal); 8 C.F.R. §§ 241.4, 241.5, 241.13(h), 241.14 (regulations
governing release of aliens pending removal); Zadvydas v. Davis, 533 U.S.
678, 700 (2001) (if a court orders an alien released from custody, “of course,
Case No. 1:26-cv-03507-NYW Document 16 filed 10/13/26 USDC Colorado pg 2
of 6

3
the alien’s release may and should be conditioned on any of the various
forms of supervised release that are appropriate in the circumstances”).
[Doc. 11 at 1–2].
On September 2, 2026, the Court entered a Minute Order directing Respondent to
“file a supplemental response with evidence supporting his position that a final order of
removal exists.” 	[Doc. 13]. 	In response, Respondent submitted a copy of Petitioner’s
final order of removal dated March 4, 2020 and noted that “Petitioner was provided with
written notification of the time, date, and location of his removal hearing, but failed to
appear” and that the “Immigration Judge found that the Department of Homeland Security
submitted documentary evidence establishing Petitioner’s removability.” 	[Doc. 15 at 1];
see also [Doc. 15-1].
ANALYSIS
I. 	Detention of Noncitizens
Generally, when a noncitizen is ordered removed from the United States, the
removal 	“shall” 	occur 	within 	the 	next 	90 	days—the 	“removal 	period.” 	8 	U.S.C.
§ 1231(a)(1); Morales-Fernandez v. Immigr. & Naturalization Serv., 418 F.3d 1116, 1123
(10th 	Cir. 	2005). 	Detention 	is 	mandatory 	during 	the 	removal 	period, 	8 	U.S.C.
§ 1231(a)(2)(A), but once the removal period expires, the noncitizen “may” be detained,
id. § 1231(a)(6) (emphasis added). 	The Supreme Court has recognized that this
permissive language “suggests discretion,” but “does not necessarily suggest unlimited
discretion.” 	Zadvydas, 533 U.S. at 697. 	Indeed, “read in light of the Constitution’s
demands,” Section 1231(a)(6) “limits an alien’s post-removal-period detention to a period
reasonably necessary to bring about that alien’s removal from the United States.” Id. at
689. In Zadvydas, the Court explained that
Case No. 1:26-cv-03507-NYW Document 16 filed 10/13/26 USDC Colorado pg 3
of 6

4
[a] statute permitting indefinite detention of an alien would raise a serious
constitutional problem. The Fifth Amendment’s Due Process Clause forbids
the Government to “depriv[e]” any “person . . . of . . . liberty . . . without due
process of law.” 	Freedom from imprisonment—from government custody,
detention, or other forms of physical restraint—lies at the heart of the liberty
that Clause protects.
Id. at 690 (citing Foucha v. Louisiana, 504 U.S. 71, 80 (1992)). 	Finding “nothing in the
history of these statutes that clearly demonstrates a congressional intent to authorize
indefinite, perhaps permanent, detention,” the Zadvydas Court held that “once removal is
no longer reasonably foreseeable, continued detention is no longer authorized by statute.”
Id. at 699.
The 	Court 	did 	recognize, 	however, 	a 	presumptively 	reasonable 	six-month
detention period. Id. at 701. “After this 6-month period,” if the noncitizen demonstrates
“good reason to believe that there is no significant likelihood of removal in the reasonably
foreseeable future, the Government must respond with evidence sufficient to rebut that
showing.” 	Id. 	The Supreme Court explained that a six-month presumptive period does
not mean that every noncitizen detained for six months must be released; rather, a
noncitizen may remain in detention “until it has been determined that there is no significant
likelihood of removal in the reasonably foreseeable future.” 	Id. 	But “if the government
fails to demonstrate a significant likelihood of removal in the reasonably foreseeable
future, the noncitizen must be released.” Ahrach v. Baltazar, No. 25-cv-03195-PAB, 2025
WL 3227529, at *2 (D. Colo. Nov. 19, 2025) (citing Zadvydas, 533 U.S. at 701).
II. 	Petitioner’s Detention
It is unclear what claims Petitioner is bringing in the Petition. 	However, to the
extent he is challenging the validity of the final order of removal, this Court lacks
jurisdiction over such a claim. 	See Ferry v. Gonzalez, 457 F.3d 1117, 1131 (10th Cir.
Case No. 1:26-cv-03507-NYW Document 16 filed 10/13/26 USDC Colorado pg 4
of 6

5
2013) (explaining that the “the Real ID Act eliminates a district court’s jurisdiction over
habeas petitions challenging final orders of removal.”). 	Further, Respondent has
submitted evidence that Petitioner is detained under 8 U.S.C. § 1231(a), but Petitioner
fails to clearly state a Zadvydas claim in his Petition. 	To date, Petitioner has been
detained approximately three months. 	Therefore, the presumptively reasonable six-
month period recognized in Zadvydas has not expired. 	Furthermore, Petitioner has not
alleged that there is no significant likelihood of removal in the reasonably foreseeable
future. 	See [Doc. 5]. 	Based on the allegations in the Petition, the Court simply cannot
determine whether Petitioner has asserted a cognizable habeas claim. 	See Garrett v.
Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005) (explaining that while
a pro se litigant’s pleadings “are to be construed liberally and held to a less stringent
standard than formal pleadings drafted by lawyers,” “the court cannot take on the
responsibility of serving as the litigant’s attorney in constructing arguments and searching
the record” (quotations omitted)).
Accordingly, the Court concludes that Petitioner has not met his burden to
demonstrate that habeas relief is warranted. 	The Court will DENY the Petition without
prejudice.
CONCLUSION
For the reasons set forth above, IT IS ORDERED that:
(1) 	The amended Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C.
§ 2241 [Doc. 5] is DENIED without prejudice;
(2) 	The Emergency Motion for Temporary Restraining Order and Preliminary
Injunction [Doc. 3] is DENIED as moot; and
Case No. 1:26-cv-03507-NYW Document 16 filed 10/13/26 USDC Colorado pg 5
of 6

6
(3) 	The Clerk of Court shall enter judgment in favor of Respondent and close this
case.
DATED: October 13, 2026 	BY THE COURT:
_________________________
Nina Y. Wang
United States District Judge
Case No. 1:26-cv-03507-NYW Document 16 filed 10/13/26 USDC Colorado pg 6
of 6