Aguilar v. Dunbar et al

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
______
ELIO CALDERON AGUILAR,
Petitioner,
v.
ANGELA DUNBAR et al.,
Respondents.
____________________________/
Case No. 1:25-cv-1439
Honorable Paul L. Maloney
OPINION
Petitioner Elio Calderon Aguilar initiated this action on September 8, 2025, by filing a
counseled petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 in the United States
District Court for the Eastern District of Michigan. (Pet., ECF No. 1.) Petitioner is a United States
Immigration and Customs Enforcement (ICE) detainee currently detained at the North Lake
Processing Center located in Baldwin, Lake County, Michigan.
Petitioner, through counsel, filed an amended § 2241 petition (Am. Pet., ECF No. 10) on
September 15, 2025. Respondents filed their response (ECF No. 13) on September 25, 2025, and
filed supplemental exhibits (ECF No. 18) to their response on October 29, 2025. Petitioner filed a
reply (ECF No. 15) on October 8, 2025. On October 30, 2025, the Eastern District of Michigan
conducted a show cause hearing. Subsequently, in an opinion and order (ECF No. 20) entered on
November 14, 2025, the Eastern District of Michigan transferred the amended § 2241 petition to
this Court for further proceedings.
Petitioner challenges the lawfulness of his current detention and asks the Court for the
following relief: to issue a writ of habeas corpus directing Respondents to immediately release
Petitioner from custody; alternatively, to order Respondents to provide Petitioner with an
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individualized bond hearing before an immigration judge; to retain jurisdiction to ensure
compliance with this Court’s order; and, to award attorneys’ fees and costs for this action. (Am.
Pet., ECF No. 10, PageID.54.) The parties have also filed a joint motion for a status conference.
(ECF No. 23.) For the following reasons, the Court will deny Petitioner’s amended petition for a
writ of habeas corpus pursuant to 28 U.S.C. § 2241 and will deny as moot the parties’ joint motion
for a status conference.
Discussion
I. 	Factual Background
Petitioner “is a native and citizen of Honduras who entered the United States at an unknown
date, time, and place without being inspected and admitted or paroled by immigration officials.”
(Pinson Decl. ¶ 4, ECF No. 13-2, PageID.79.) United States Border Patrol (USBP) agents first
encountered Petitioner at or near Brownsville, Texas, on or about June 22, 1995. (Id. ¶ 5.) USBP
agents 	issued 	Petitioner 	a 	Form 	I-221, 	Order 	to 	Show 	Cause, 	charging 	Petitioner 	with
inadmissibility pursuant to § 241(a)(1)(B) of the INA “for entering the United States without
inspection.” (Id.) Petitioner was placed into removal proceedings before the immigration court in
Harlingen, Texas, where Petitioner filed “an application for asylum and for withholding of
removal.” (Id. ¶ 6, PageID.80.)
On October 13, 1995, Petitioner was released from custody pursuant to a Form I-220A,
Order of Release on Recognizance. (Id. ¶ 7.) Subsequently, venue for Petitioner’s removal
proceedings was transferred to the Los Angeles Immigration Court. (Id. ¶ 8.) Petitioner appeared
before that court on December 5, 1995. (Id. ¶ 9.) At that time, Petitioner “withdrew his asylum
application and only sought voluntary departure.” (Id.) The immigration judge concluded that
Petitioner was deportable as charged. (Id.) The immigration judge granted Petitioner’s application
for voluntary departure under § 244(e)(1) of the INA and ordered Petitioner to depart the United
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States on or before January 30, 1996. (Id.) Petitioner “failed to voluntarily depart by the specified
time, as required, and the order of voluntary departure automatically converted to an order of
deportation by operation of law.” (Id. ¶ 10.) Petitioner was then ordered to report to immigration
officials on August 5, 1996, so that his removal order could be executed. (Id. ¶ 11, PageID.81.)
Petitioner failed to do so. (Id.)
On December 14, 2000, immigration officials apprehended Petitioner while he was
“attempting to reenter the United States.” (Id. ¶ 12.) Petitioner “falsely claimed to be a citizen of
the United States and provided a false name.” (Id.) Immigration officials issued Petitioner a Form
I-860, Notice and Order of Expedited Removal, and Petitioner was “removed from the United
Staes on January 3, 2001[,] via air charter.” (Id.)
Subsequently, on March 16, 2003, immigration officials encountered Petitioner at the
Anaheim, California, jail. (Id. ¶ 13.) Petitioner was issued a Form I-862, Notice to Appear, and
was placed in removal proceedings in the Lancaster Immigration Court. (Id.) Petitioner was
charged with removability pursuant to § 212(a)(6)(A)(i) of the INA “for being present in the United
States without being inspected and admitted or paroled by immigration officials after entering the
United States at or near San Ysidro, California on an unknown date in November 2002.” (Id.)
On April 2, 2003, an immigration judge ordered that Petitioner be removed. (Id. ¶ 14.)
Petitioner contends that he was ordered removed in absentia. (Am. Pet., ECF No. 10, PageID.52.)
Petitioner reserved his right to appeal, but did not file an appeal to the Board of Immigration
Appeals (BIA), thereby rendering his order of removal final. (Pinson Decl. ¶ 14, ECF No. 13-2,
PageID.81–82.) Petitioner was removed to Honduras via air charter on June 18, 2003. (Id. ¶ 15,
PageID.82.)
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On October 18, 2010, Petitioner was convicted of driving under the influence by the
Newport Beach, California, Judicial Court. (Id. ¶ 16.) On April 29, 2014, Petitioner was convicted
of false identification to a police officer and operating without a license by the Santa Ana,
California, Judicial Court. (Id. ¶ 17.)
On November 21, 2023, Petitioner filed a Form I-485, Application to Register Permanent
Residence, and a Form I-601, Application for Waiver of Grounds of Inadmissibility, “with the
United States Citizenship and Immigration Services (USCIS) based upon an approved Form I-130,
Petition for Alien Relative, filed by his United States citizen spouse.” (Id. ¶ 18.)
On May 9, 2023, Petitioner filed a motion to reopen with the immigration court, seeking
to adjust his status. (Id. ¶ 19.) The immigration court denied that motion on June 26, 2023. (Id.
¶ 20.) On May 23, 2025, the USCIS denied Petitioner’s applications for relief, concluding that “it
did not have jurisdiction to adjudicate the applications because [Petitioner] was ordered removed
by an immigration judge.” (Id. ¶ 21, PageID.83.)
On August 20, 2025, ICE agents encountered Petitioner in Dearborn, Michigan, and issued
him a Form I-871, Notice of Intent/Decision to Reinstate Prior Order, with respect to Petitioner’s
2003 order of removal. (Id. ¶ 22.) Petitioner was taken into custody by ICE and detained at North
Lake. (Id.) On or about August 25, 2025, while being processed by ICE agents, Petitioner “claimed
a fear of returning to Honduras.” (Id. ¶ 23.)
On October 14, 2025, a USCIS asylum officer interviewed Petitioner and concluded that
Petitioner “established a reasonable fear of persecution” if he returned to Honduras. (Supp. Pinson
Decl. ¶ 4, ECF No. 18-2, PageID.110.) On or about October 15, 2025, the Detroit Enforcement
and Removal Operations (ERO) was notified of the asylum officer’s reasonable fear determination.
(Id. ¶ 5.)
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On October 16, 2025, an ICE officer issued Petitioner an NTA charging him with
removability pursuant to § 212(a)(9)(C)(i)(II) “for having entered the United States without being
admitted after having been previously ordered removed.” (Id. ¶ 6, PageID.110–11.) That NTA was
issued erroneously because Petitioner “was already being processed as a reinstatement pursuant to
a final order of removal.” (Id. ¶ 7, PageID.111.) Instead, Petitioner should have received a Form
I-863, Notice of Referral to Immigration Judge, “to place [Petitioner] into withholding-only
proceedings in the immigration court to apply for withholding of removal under section 241(b)(3)
of the [INA] and protection under the United Nations Convention Against Torture.” (Id.) Petitioner
was scheduled to appear before the Detroit Immigration Court on October 28, 2025. (Id. ¶ 8.)
On October 20, 2025, the NTA was uploaded to the Courts and Appeals System used by
the Executive Office for Immigration Review (EOIR) to “initiate new removal proceedings in the
immigration courts.” (Id. ¶ 9.) However, “[u]pon information and belief, EOIR did not accept the
uploaded NTA into its system until October 28, 2025, thereby commencing removal proceedings
in the Detroit Immigration Court. (Id. ¶ 11, PageID.112.)
On October 28, 2025, EOIR “issued a hearing notice for a master calendar hearing on
November 19, 2025.” (Id. ¶ 12.) That same day, Agent Pinson was notified that a Form I-863
needed to be prepared to place Petitioner “into withholding-only proceedings in immigration court
to allow an immigration judge to adjudicate his fear claim.” (Id. ¶ 13.) The Form I-863 was
prepared on October 29, 2025, and was personally served upon Petitioner at North Lake. (Id. ¶ 14.)
Also on October 29, 2025, a government attorney representing ICE filed a motion to dismiss
proceedings with the Detroit Immigration Court “on the basis that the NTA was improvidently
issued because [Petitioner] is subject to reinstatement of his prior removal order.” (Id. ¶ 15,
PageID.112–13.)
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On November 5, 2025, the immigration judge granted the motion to dismiss without
prejudice. (ECF No. 19, PageID.200–01.) On November 7, 2025, the immigration judge conducted
a custody redetermination hearing and denied Petitioner’s request for bond, concluding that
Petitioner was a flight risk. (Id., PageID.202.) Petitioner reserved his right to appeal that decision
to the BIA. (Id., PageID.203.)
As soon as removal proceedings are terminated, ERO intends to file “the executed Form I-
863 . . . with the Detroit Immigration Court to initiate withholding-only proceedings under INA
§ 241 to allow an immigration judge to adjudicate [Petitioner’s] fear claim.” (Supp. Pinson Decl.
¶ 16, ECF No. 18-2, PageID.113.)
II. 	Habeas Corpus Legal Standard
The Constitution guarantees that the writ of habeas corpus is “available to every individual
detained within the United States.” Hamdi v. Rumsfeld, 542 U.S. 507, 525 (2004) (citing U.S.
Const., Art I, § 9, cl. 2). Section 2241 of Title 28 confers the federal courts with the power to issue
writs of habeas corpus to persons “in custody in violation of the Constitution or laws or treaties of
the United States.” 28 U.S.C. § 2241. This includes challenges by non-citizens in immigration-
related matters. See Zadvydas v. Davis, 533 U.S. 678, 687 (2001); see also A. A. R. P. v. Trump,
145 S. Ct. 1364, 1367 (2025).
III. 	Merits Discussion
A. 	Statutory Basis for Petitioner’s Detention
Petitioner contends that ICE lacks authority to detain him because, according to Petitoiner,
there has been no reinstated order of removal nor pending removal proceedings against Petitioner.
(Am. Pet., ECF No. 10, ECF No. 53.) Petitioner suggests that ICE has no statutory authority to
detain Petitioner. (Id.) Respondents, however, counter that Petitioner is lawfully detained pursuant
to 8 U.S.C. § 1231. (Resp., ECF No. 13, PageID.69.)
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A noncitizen who has a prior order of removal reinstated “has no right to a hearing before
an immigration judge in such circumstances.” See 8 C.F.R. § 241.8(a). To determine whether a
noncitizen is subject to reinstatement of a prior order of removal, an immigration judge must
determine:
(1) Whether the alien has been subject to a prior order of removal. The immigration
officer must obtain the prior order of exclusion, deportation, or removal relating to
the alien.
(2) The identity of the alien, i.e., whether the alien is in fact an alien who was
previously removed, or who departed voluntarily while under an order of exclusion,
deportation, or removal. In disputed cases, verification of identity shall be
accomplished by a comparison of fingerprints between those of the previously
excluded, deported, or removed alien contained in Service records and those of the
subject alien. In the absence of fingerprints in a disputed case the alien shall not be
removed pursuant to this paragraph.
(3) Whether the alien unlawfully reentered the United States. In making this
determination, the officer shall consider all relevant evidence, including statements
made by the alien and any evidence in the alien's possession. The immigration
officer shall attempt to verify an alien’s claim, if any, that he or she was lawfully
admitted, which shall include a check of Service data systems available to the
officer.
Id.
Notably, a noncitizen who is subject to a reinstated prior order of removal “is not eligible
and may not apply for any relief under this chapter.” See 8 U.S.C. § 1231(a)(5). The only exception
to removal after reinstatement of a prior order is if the noncitizen requests withholding of removal
“by expressing a fear of returning to the country designated in that order.” See 8 C.F.R. § 241.8(e).
In such a case, the noncitizen “shall be immediately referred to an asylum officer for an interview
to determine whether the alien has a reasonable fear of persecution or torture pursuant to § 208.31
of this chapter.” Id.
As an initial matter, in his reply, Petitioner suggests that he “does not agree with
Respondent[s] decision to reinstate his final order of removal.” (ECF No. 15, PageID.101.) To the
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extent Petitioner takes issue with the reinstatement of the final order itself, the Court lacks
jurisdiction to consider such a claim, as “a petition for review filed with an appropriate court of
appeals in accordance with this section shall be the sole and exclusive means for judicial review
of an order of removal.” See 8 U.S.C. § 1252(a)(5); see also Villegas de la Paz v. Holder, 640 F.3d
650, 653 (6th Cir. 2010) (noting that “we treat reinstatement orders precisely as we do removal
orders for purposes of our jurisdiction to review them under 8 U.S.C. § 1252(b)”). Thus, the only
issue properly before this Court is whether Respondents have authority to detain Petitioner
pursuant to the reinstated order of removal.
Petitioner contends that “the reinstatement [of the prior order of removal] itself does not
require that Petitioner be detained.” (ECF No. 15, PageID.101.) Petitioner avers further that
Respondents do not have the right to detain him “while he exercises [his] rights” to seek
withholding of removal. (Id.) Unfortunately for Petitioner, his argument is undercut by the
Supreme Court’s recent decision in Johnson v. Guzman Chavez, 594 U.S. 523 (2021). In Guzman
Chavez, the Supreme Court “was asked to decide which of two provisions [8 U.S.C. § 1226 and 8
U.S.C. § 1231] applies to aliens who were removed from the United States but later reentered
without authorization, were subject to reinstated orders of removal, and then sought withholding
of removal based on fear of persecution in the particular countries designated by their removal
orders.” See id. at 526. The Supreme Court concluded that “§ 1231, not § 1226, governs the
detention of aliens subject to reinstated orders of removal, meaning those aliens are not entitled to
a bond hearing while they pursue withholding of removal.” Id.
Thus, pursuant to Guzman Chavez, the Court agrees with Respondents that Petitioner is
properly detained pursuant to 8 U.S.C. § 1231.
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B. 	Fifth Amendment Due Process Considerations
Petitioner 	contends 	further 	that 	“prolonged 	detention 	without 	a 	bond 	hearing 	is
unconstitutional,” and that “detention post-order is limited and removal is not reasonably
foreseeable because Respondents . . . have taken no steps to effect removal.” (Am. Pet., ECF No.
10, PageID.53.) Respondents counter Petitioner’s arguments by stating that his detention does not
violate the Fifth Amendment because neither § 1231 nor the Constitution “require that he receive
a bond hearing during his detention under § 1231.” (Resp., ECF No. 13, PageID.74.)
Section 1231 provides that “when an alien is ordered removed, the Attorney General shall
remove the alien from the United States within a period of 90 days (in this section referred to as
the ‘removal period’).” See 8 U.S.C. § 1231(a)(1)(A). “During the removal period, the Attorney
General shall detain the alien.” See id. § 1231(a)(2)(A). Here, as noted above, Petitioner was taken
into custody by ICE on August 20, 2025. The 90-day removal period, therefore, expired as of
November 18, 2025.
After the 90-day removal period has expired, a noncitizen may continue to be detained. See
id. § 1231(a)(6). Moreover, the Supreme Court has held that after expiration of the 90-day removal
period, the Government may continue to detain the noncitizen “for a presumptively reasonable
period” of time, which the Supreme Court concluded equaled six months. See Zadvydas v. Davis,
533 U.S. 678, 701 (2001). Following that six-month period, “once [an] alien provides 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.
Here, because Petitioner has just entered the six-month presumptively reasonable period of
detention approved by the Supreme Court in Zadvydas, Petitioner cannot raise a plausible Fifth
Amendment due process challenge to his detention at this time. The Court, therefore, will deny
Petitioner’s amended § 2241 petition. That denial, however, will be without prejudice to
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Petitioner’s right to file a new § 2241 petition challenging his continued detention should
Petitioner’s detention continue past the presumptively reasonable six-month period set forth in
Zadvydas.1
Conclusion
For the reasons discussed above, the Court will enter an order and judgment denying as
moot the parties’ motion for a joint status conference (ECF No. 23) and denying Petitioner’s
amended petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 (ECF No. 10).2
Dated: 	November 24, 2025 	/s/ Paul L. Maloney
Paul L. Maloney
United States District Judge
1 The Court notes that the Supreme Court recently held that § 1231(a)(6) does not require the
“Government to offer detained noncitizens bond hearings after six months of detention in which
the Government bears the burden of proving by clear and convincing evidence that a noncitizen
poses a flight risk or a danger to the community.” See Johnson v. Arteaga-Martinez, 596 U.S. 573,
576 (2002). The Court, however, did not reach Arteaga-Martinez’s constitutional or Zadvydas
claims, concluding that such claims were not properly before the Court. See id. at 583–84.
2 In § 2241 cases involving immigration detainees, the Court need not address whether to grant a
certificate of appealability. See Ojo v. I.N.S., 106 F.3d 680, 681 (5th Cir. 1997).
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