Barnada-Horta v. Raycraft et al

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
______
JOSE ERNESTO BARNADA-HORTA,
Petitioner,
v.
KEVIN RAYCRAFT et al.,
Respondents.
____________________________/
Case No. 1:26-cv-1023
Honorable Paul L. Maloney
OPINION
Petitioner, a United States Immigration and Customs Enforcement (ICE) detainee currently
detained at the Calhoun County Correctional Facility in Battle Creek, Calhoun County, Michigan,
initiated this action by filing a counseled petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2241. (Pet., ECF No. 1.) For the following reasons, the Court will deny without prejudice
Petitioner’s petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241.
Discussion
I. 	Procedural History
In Petitioner’s § 2241 petition, Petitioner challenges the lawfulness of his current detention
and asks the Court to, inter alia, issue a writ of habeas corpus pursuant to 28 U.S.C. § 2241 either
ordering Respondents to release Petitioner or ordering Respondents to conduct a bond hearing to
satisfy the requirements of due process. (Pet., ECF No. 1, PageID.17; Br. Supp. Pet., ECF No. 4,
PageID.47.)
In an order entered on April 1, 2026, the Court directed Respondents to show cause, within
three business days, why the writ of habeas corpus and other relief requested by Petitioner should
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not be granted. (Order, ECF No. 3.) Respondents filed their response on April 9, 2026, (ECF
No. 9), and Petitioner filed his reply on April 13, 2026, (ECF No. 10).
II. 	Factual Background
Petitioner is a native and citizen of Cuba. (Pet., ECF No. 1, PageID.2; Walker Decl. ¶ 4,
ECF No. 9-1, PageID.66.) On or about March 13, 2019, Petitioner first entered the United States
without inspection. (Pet., ECF No. 1, PageID.9; Walker Decl. ¶ 5, ECF No. 9-1, PageID.66.)
Department of Homeland Security (DHS) agents encountered Petitioner and issued him a Form
I-860, Notice to Appear (NTA), charging Petitioner with inadmissibility under § 212(a)(7)(A)(i)(I)
of the Immigration and Nationality Act (INA) because Petitioner was an immigrant “not in
possession of a valid unexpired[] immigrant visa, reentry permit, border crossing card, or other
valid entry document required by the INA.” (Walker Decl. ¶ 5, ECF No. 9-1, PageID.66–67.) On
July 29, 2019, the El Paso, Texas, Immigration Court denied Petitioner’s application for asylum
and ordered him removed to Cuba. (Id. ¶ 7, PageID.67.) On August 29, 2019, Petitioner was
removed from the United States to Cuba. (Id. ¶ 8, PageID.67; Pet., ECF No. 1, PageID.9.)
On or about September 8, 2022, Petitioner re-entered the United States and encountered
DHS agents near Eagle Pass, Texas. (Pet., ECF No. 1, PageID.9; Walker Decl.¶ 9, ECF No. 9-1,
PageID.68.) DHS took Petitioner into custody and issued Petitioner a Form I-871, Notice of
Intent/Decision to Reinstate Prior Order, reinstating the 2019 order of removal. (2022 Form I-871,
ECF No. 9-3, PageID.76; Walker Decl.¶ 9, ECF No. 9-1, PageID.68.) Petitioner expressed a fear
of return to Cuba. (Pet., ECF No. 1, PageID.9.) On September 10, 2022, ICE issued Petitioner “a
Form I-220B, Order of Supervision[,] and released him from custody.” (Walker Decl.¶ 10, ECF
No. 9-1, PageID.68.) On February 2, 2025, Petitioner filed another application for asylum. (Id. ¶
11, PageID.68.)
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On June 4, 2025, Petitioner was arrested and detained by ICE in Grand Rapids, and his
Order of Supervision was revoked. (Id. ¶ 12, PageID.68; Notice of Revocation of Release, ECF
No. 9-4, PageID.78.) On July 14, 2025, United States Citizenship and Immigration Services
(USCIS) dismissed Petitioner’s asylum application, determined that Petitioner had a reasonable
fear of persecution or torture if returned to Cuba, and placed Petitioner in withholding-only
proceedings. (Notice of Dismissal of Form I-589, ECF No. 1-1, PageID.20–23; Walker Decl.
¶¶ 14–15, ECF No. 9-1, PageID.69.)
On September 2, 2025, ICE Enforcement and Removal Operations (ERO) conducted a “90-
Day Post Order Custody Review,” and determined that Petitioner would not be released from
detention at that time because “removal to Cuba was likely in the reasonably foreseeable future
once Withholding Only Proceedings concluded.” (Decision to Continue Detention, ECF No. 1-2,
PageID.21; Walker Decl. ¶ 16, ECF No. 9-1, PageID.69.) On December 23, 2025, ICE ERO was
informed that “the Government of Cuba approved [Petitioner]’s repatriation. (Walker Decl. ¶ 17,
ECF No. 9-1, PageID.69.) On March 10, 2026, ICE ERO was informed that Petitioner “could be
removed to Cuba on the March 19, 2026, ICE Air Operations mission if his removal order was
executable.” (Id. ¶ 18, PageID.69.) However, Petitioner “was not removed as Withholding[-]Only
proceedings were still active.” (Id., ¶ 18, PageID.69–70.)
On March 12, 2026, the Detroit Immigration Court denied Petitioner’s application for
withholding of removal and ordered him removed to Cuba. (Order of the Immigration Judge, ECF
No. 9-5, PageID.81.) In a declaration filed by Respondents, Deportation Officer Ericka Walker
explained:
On March 19, 2026, ICE ERO Headquarters again advised ERO Detroit that the
Government of Cuba approved [Petitioner]’s repatriation and that he could be
removed to Cuba on the April 6, 2026 ICE Air Operations mission if his removal
order was executable. However, due to the pending appeal period, ERO Detroit was
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unable to remove him to Cuba at that time…. If [Petitioner] does not file a timely
appeal[,] he will be removed on the next available ICE Air Operation mission to
Cuba.
(Walker Decl. ¶ ¶ 20–21, ECF No. 9-1, PageID.70.)
On April 7, 2026, Petitioner filed an appeal with the Board of Immigration Appeals (BIA)
that remains pending. See Automated Case Information, https://acis.eoir.justice.gov/en/ (enter
201-671-151 for the A-Number, select “Cuba” for the Nationality, and select Submit) (last visited
Apr. 30, 2026).
III. 	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).
IV. 	Exhaustion
The Court declines to enforce the doctrine of prudential exhaustion against Petitioner, and
even if the Court were to conclude that exhaustion is warranted, the Court concludes in the
alternative that waiver of exhaustion is appropriate, for the reasons set forth in the Court’s
exhaustion analysis in each of the following cases: Antele Cobix v. Raycraft, No. 1:25-cv-1669,
2025 WL 3562651, at *2–3 (W.D. Mich. Dec. 12, 2025); Candela Bastidas v. Noem, No. 1:25-cv-
1528, 2025 WL 3562638, at *2–4 (W.D. Mich. Dec. 12, 2025); Acuna Sanchez v. Noem, No. 1:25-
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cv-1442, 2025 WL 3562577, at *2–4 (W.D. Mich. Dec. 12, 2025); Penagos Robles v. U.S. Dep’t
of Homeland Sec., No. 1:25-cv-1578, 2025 WL 3558128, at *2–3 (W.D. Mich. Dec. 12, 2025).
Accordingly, the Court will proceed to address the merits of Petitioner’s § 2241 petition.
V. 	Merits Discussion
The parties agree that 8 U.S.C. § 1231 applies to Petitioner’s detention because he is subject
to a reinstated order of removal. (See Pet., ECF No. 1, PageID.5; Resp, ECF No. 9, PageID.58.)
Petitioner argues his detention violates § 1231, as interpreted by Zadvydas v. Davis, 533 U.S. 678,
701 (2001), because there is no significant likelihood of Petitioner’s removal to Cuba in the
reasonably foreseeable future. Petitioner also argues that his detention without an individualized
hearing violates the Fifth Amendment’s Due Process Clause.
Section 1231 governs the detention of immigrants subject to reinstated orders of removal,
“meaning those aliens are not entitled to a bond hearing while they pursue withholding of
removal.” 	Johnson v. Guzman Chavez, 594 U.S. 523, 526 (2021). “[W]hen 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’).” 8 U.S.C. § 1231(a)(1)(A). “During the
removal period, the Attorney General shall detain the alien.” Id. § 1231(a)(2)(A). “The [90-day]
removal period begins on . . . [t]he date the order of removal becomes administratively final.” Id.
§ 1231(a)(1)(B). “[R]einstated removal orders are ‘administratively final.’” Guzman Chavez, 594
U.S. at 534 (2021).
After the 90-day removal period has expired, a noncitizen may continue to be detained. See
8 U.S.C. § 1231(a)(6). 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. Zadvydas, 533 U.S. at
701 (2001). After the six-month period, if the noncitizen “provides good reason to believe that
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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 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.
Here, Petitioner’s order of removal became final on July 29, 2019, and the 90-day removal
period following the order expired well before Petitioner filed the present action. See 8 U.S.C.
§ 1231(a)(1)(B). As described above, Petitioner expressed a fear of returning to Cuba, an
Immigration Judge denied Petitioner’s application for withholding of removal, and Petitioner’s
appeal to the BIA of this decision remains pending. The pendency of withholding-only
proceedings does not affect the validity of a removal order. Guzman Chavez, 594 U.S. at 539–540
(“[T]he finality of the order of removal does not depend in any way on the outcome of the
withholding-only proceedings.”); see also Riley v. Bondi, 606 U.S. 259, 269 (2025). If Petitioner
is granted withholding-only relief in his appeal to the BIA, he may not be removed to Cuba, but
he may be removed to another country. Guzman Chavez, 594 U.S. at 537. While Petitioner is not
entitled to a bond hearing while he pursues withholding of removal, Guzman Chavez, 594 U.S. at
526, he cannot be detained under § 1231 indefinitely.
Petitioner has now been detained for ten months, well beyond the six-month presumptively
reasonable period of detention following a final order of removal as established in Zadvydas, 533
U.S. at 701, and argues that there is no significant likelihood of removal in the reasonably
foreseeable future because Cuba does not accept many repatriation flights. Indeed, Cuba is
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considered a recalcitrant country by DHS because Cuba is known to refuse or delay repatriation
of 	their 	citizens. 	See 	Habeas 	Corpus 	for 	Detained 	Immigrants, 	Mandamus 	Lawyers,
https://mandamuslawyers.com/habeas-corpus-for-detained-immigrants-complete-legal-guide/
(last visited Apr. 30, 2026). Thus, Petitioner has presented evidence suggesting there is good
reason to believe that there is no significant likelihood of removal in the reasonably foreseeable
future, and Respondents must respond with evidence sufficient to rebut that showing. See
Zadvydas, 533 U.S. at 701 (2001).
Respondents provide the declaration of ICE Deportation Officer Ericka Walker to rebut
Petitioner’s evidence. Officer Walker states that Cuba approved Petitioner’s repatriation on or
about December 23, 2025. (Walker Decl. ¶ 17, ECF No. 9-1, PageID.69.) On March 10, 2026, ICE
ERO was informed that Petitioner “could be removed to Cuba on the March 19, 2026, ICE Air
Operations mission if his removal order was executable.” (Id. ¶ 18, PageID.69.) However,
Petitioner “was not removed as Withholding[-]Only proceedings were still active.” (Id., ¶ 18,
PageID.69–70.)
Petitioner appealed the denial of withholding-only relief on April 7, 2026, thus proceedings
are still active, and Respondents indicate Petitioner will not be removed while withholding-only
proceedings are ongoing. However, Respondents have provided evidence sufficient to rebut
Petitioner’s showing that there is no significant likelihood of removal in the foreseeable future.
Respondents have received approval from Cuba for Petitioner’s repatriation to the country. Thus,
if Petitioner’s withholding-only appeal is denied, it is significantly likely that he will be removed
to Cuba in the reasonably foreseeable future. Furthermore, Petitioner was deported to Cuba in
2019. Thus, at this point in time, nothing in the record indicates that Petitioner is in a state of
“indefinite, perhaps permanent, detention” that the Court in Zadvydas said would violate the
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constitution. Zadvydas, 533 U.S. at 699; see also Martinez v. Larose, 968 F.3d 555, 565 (6th Cir.
2020) (holding that a detention of over two years was constitutionally permissible because the
removal was likely to occur once Petitioner’s appeals were concluded).
If Petitioner’s withholding-only appeal is granted, DHS will have to find another country
to remove Petitioner to. The Court recognizes that continued detention may, over time, come to
resemble the kind of indefinite confinement that Zadvydas may not permit. “[A]s the period of
prior postremoval confinement grows, what counts as the ‘reasonably foreseeable future’
conversely [has] to shrink.” Zadvydas, 533 U.S. at 701. Courts applying this principle recognize
that even where the Government continues to pursue removal in good faith, the passage of time
can eventually erode the reasonableness of continued detention. See Martinez, 968 F.3d at 565
(explaining that prolonged detention may become unreasonable if the petitioner later demonstrates
that removal is no longer likely).
Here, however, the Court is not yet faced with that situation. The Court recognizes that
Petitioner’s ten-month detention is lengthy, but at this point, Respondents are actively pursuing
removal, 	and 	removal 	remains 	significantly 	likely 	in 	the 	reasonably 	foreseeable 	future.
Accordingly, Petitioner’s § 2241 petition will be denied without prejudice. Should Respondents’
efforts to secure removal stall, Petitioner may file a new petition asserting that continued detention
is no longer reasonable.
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Conclusion
For the reasons discussed above, the Court will enter a judgment denying Petitioner’s
petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 without prejudice.
Dated: 	May 8, 2026 	/s/ Paul L. Maloney
Paul L. Maloney
United States District Judge
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