Case Name in Immigration Case - Unavailable

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
JOSE ERALAND JIMENEZ CHACON,
Petitioner,
v. 	2:25-cv-977-DHU-KBM
TODD LYONS, DORA CASTRO, MARY
DE ANDA-YBARRA, KRISTI NOEM,
and PAM BONDI,
Respondents.
MEMORANDUM OPINION AND ORDER
This matter comes before the Court on Petitioner Jose Eraland Jimenez Chacon’s Petition
for Writ of Habeas Corpus (“Petition”). Doc. 1. Petitioner argues that his Order of Supervision
was arbitrarily and unlawfully revoked eight years after he was released from detention. Id. at 12-
15. He also alleges that because he has a CAT deferral preventing his removal to Mexico and his
removal to a third country is not reasonably foreseeable, his continued detention violates the
Immigration and Nationality Act (“INA”), 8 U.S.C. § 1231(a)(6), and the Due Process Clause of
the Fifth Amendment. Id. at 15-18. The Petition asks the Court to declare Petitioner’s continued
detention unlawful, issue a writ of habeas corpus ordering his release, and reinstate his Order of
Supervision. Id. at 23-24.
The Court held a hearing on the Petition on November 20, 2025, at which counsel for all
parties was present. Having considered the parties’ briefs, oral arguments, and submitted evidence,
and the relevant and applicable law, the Court finds Petitioner’s continued detention unlawful and
orders that the Petition for Writ of Habeas Corpus shall be GRANTED.
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I.
FACTUAL FINDINGS
Petitioner Jose Eraland Jimenez Chacon is a citizen of Mexico. Doc. 29 at ¶ 2. He entered
the United States in 1999 and became a legal permanent resident in 2006. Id. at ¶¶ 1-2. In 2011 or
2012, Petitioner pled guilty to drug trafficking charges in Colorado state court and was sentenced
to a period of incarceration. Id. at ¶¶ 3-4. He was released to the custody of Immigration and
Customs Enforcement (“ICE”) on February 16, 2016 and issued a notice to appear as removable
under the INA because of his conviction. Id. at ¶ 5.
On May 26, 2016, Petitioner was ordered removed to Mexico but simultaneously granted
deferral of removal under the United Nations Convention Against Torture (“CAT”), based on
testimony and evidence that his life would be in danger if he returned to Mexico. Id. at ¶ 6. The
Department of Homeland Security (“DHS”) appealed this decision, but it was affirmed by the
immigration judge (“IJ”) on November 2, 2016. Id. at ¶¶ 6-8. Petitioner remained in ICE detention
while the government sought a third country for removal. Id. at ¶¶ 8-10. On March 9, 2017, after
several countries declined to accept him, the government released Petitioner under an Order of
Supervision. Id. at ¶¶ 9-11. In total, Petitioner spent over a year in ICE custody during and after
his removal proceedings in 2016 and 2017. Just over four months of that time—from November
2016 to March 2017—occurred after Petitioner’s removal order became final, while ICE sought a
third country for removal.
After his release in 2017, Petitioner moved to El Paso, where he has lived ever since. Id. at
¶ 12. Under the Order of Supervision, Petitioner was required to report to ICE periodically. Id. at
¶ 12. On March 1, 2023, Petitioner failed to report to his ICE appointment. Id. at ¶ 13.
On February 14, 2025, Petitioner was arrested at a Border Patrol checkpoint near
Alamogordo, New Mexico, after agents determined he was not a citizen and had previously failed
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to report to an immigration officer. Id. at ¶ 14. Soon after, Petitioner was transferred to the Otero
County Processing Center and remained detained while DHS requested several third countries to
accept him. Id. at ¶¶ 16, 18-19. Requests were sent to El Salvador, Honduras, Guatemala,
Dominican Republic, and Peru. Id. at ¶¶ 19, 21, 23. DHS received denials from Honduras,
Dominican Republic, and Peru. Id. at ¶¶ 20-21, 23. On April 25, 2025, Petitioner sent a release
request to ICE, explaining that he does not pose a flight risk nor a danger to his community. Id. at
42 (“Exhibit F”). This request was denied. Id. at ¶ 25. On or about May 14, 2025, after a 90-day
Post Order Custody Review, DHS determined Petitioner should remain detained because he was
deemed a flight risk. Id. at ¶ 27.
On June 27, 2025, Petitioner’s prior counsel requested to drop the CAT deferral, in hopes
that he could be removed to Mexico. Id. at ¶ 32. On August 7, 2025, Petitioner’s prior counsel
filed a motion to reopen his original removal case and terminate the withholding grant. Id. at ¶ 33.
On August 11, 2025, Petitioner applied for a stay of removal, stating that he planned to challenge
his Colorado conviction because he was not advised of the immigration consequences of his plea.
Id. at 246 (“Exhibit I”). See also Doc. 18 at 3 (citing Doc. 18-1 at ¶ 32). That stay was allegedly
denied. Doc. 25 at 4. On August 22, 2025, Petitioner filed a motion to withdraw the motion to
reopen his case and terminate CAT protection. Doc. 29 at 20 (“Exhibit A”).
On August 19, 2025, after a 180-day Post Order Custody Review, Petitioner was once
again determined to be a flight risk and a “public risk due to his felony drug conviction.” Doc. 18-
1 at ¶ 37. See also Doc. 29 at ¶ 39. He remained in detention while DHS continued to seek third
countries for his removal. Id. at ¶¶ 39, 41 (indicating additional communications were sent to
Middle East/East Africa Removal Division for an update on third country removal).
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On September 17, 2025, an IJ granted Petitioner’s Motion to Reopen his removal
proceedings and the request to terminate the CAT withholding. Id. at ¶ 42. The IJ did not address
Petitioner’s motion to withdraw that motion. Doc. 25 at 5. See also Doc. 18-3. Petitioner timely
appealed the IJ’s order to the Board of Immigration Appeals (“BIA”), where it remains pending.
Doc. 29 at ¶ 43. At the hearing on this matter, the parties agreed that Petitioner’s CAT deferral
remains legally operative during the pendency of the BIA appeal. See Doc. 28 at 2.
II.
PROCEDURAL BACKGROUND
On October 7, 2025, Petitioner filed a Petition for Writ of Habeas Corpus in this Court. In
it, Petitioner argues on multiple grounds that his detention is unlawful. First, he alleges that he was
not notified or given an opportunity to be heard before his Order of Supervision was effectively
revoked, in violation of 8 C.F.R. § 241.4(l)(2) and his due process rights. Doc. 1 at 12-15. Next,
because of his CAT deferral and DHS’s failed attempts at identifying a third country to accept
him, Petitioner contends that his removal is not reasonably foreseeable. Accordingly, under
Zadvydas v. Davis, 533 U.S. 678, 121 S.Ct. 2491, 150 L.Ed.2d 653, his continued detention
violates due process. Doc. 1 at 15-18. Lastly, Petitioner alleges that an ICE policy memo from July
2025 states that some non-citizens will be deported to third countries with no notice whatsoever.
Id. at 9. Based on this allegation, Petitioner expresses concern that, should ICE identify a third
country to accept him, he will not receive notice and an opportunity to seek applicable relief. Id.
at 20-21. Petitioner requests that this Court:
1) Assume jurisdiction over this matter;
2) Order that Petitioner shall not be transferred outside of the District of New Mexico,
specifically Otero County, New Mexico;
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3) Issue an Order to Show Cause ordering Respondents to show cause why this Petition
should not be granted within seven days1;
4) Declare that Petitioner’s continued detention violates the INA and the Due Process
Clause of the Fifth Amendment;
5) Issue a writ of habeas corpus ordering Respondents to release Petitioner immediately;
6) Issue an order that Petitioner’s Order of Supervision be restored and that he continue
supervision under the same terms as in place prior to February 14, 2025;
7) Issue an order that Petitioner be provided notice and an opportunity to request
protection from removal to any third country the Respondents may identify; and
8) Grant any other further relief the Court deems just and proper.
Id. at 23-24.
Rather than filing a Response, Respondents filed a Motion to Dismiss the Petition on
October 29, 2025. In it, the government argues that the Petition should be dismissed because (1)
the Court lacks jurisdiction to review ICE’s decision to execute a removal order, (2) Respondents
did not violate a statutory or regulatory procedure, (3) there is no due process violation, and (4)
Petitioner failed to exhaust his administrative remedies. Doc. 18 at 2. According to the
government, 8 U.S.C. § 1252(g) strips district courts of jurisdiction over “any cause or claim by
or on behalf of any [noncitizen] arising from the decision or action by the Attorney General to
commence proceedings, adjudicate cases, or execute removal orders against any alien under this
chapter.” The government contends that Petitioner’s claim for habeas arises from the government’s
execution of a removal order against him. Id. at 9. Respondents further argue that this Court cannot
review Petitioner’s APA claim because courts lack jurisdiction to review agency action that is
1 The Court already did this, issuing an Order to Show Cause on October 15, 2025.
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committed to agency discretion by law. Id. at 11 (citing 5 U.S.C. § 706(2)(A)). In the alternative,
the government argues that it did comply with statutory and regulatory authority, and no notice
was required because Petitioner was detained pursuant to ICE’s discretion. Id. at 11-12.
Even if the Court did have jurisdiction, Respondents contend that Petitioner’s due process
claim fails because his removal is foreseeable, allowing continued detention under Zadvydas.
According to the government, Petitioner would have already been removed to Mexico if not for
his BIA appeal. Id. at 14. Moreover, the government argues that Petitioner was afforded the due
process to which he is entitled through multiple post-order custody reviews. Id. at 14-15.
In addition, the government argues that Petitioner’s claims are premature because he failed
to exhaust administrative remedies. Id. at 15. The regulations governing detention after a final
removal order provide for administrative review by ICE’s Headquarters Post-order Detention Unit
(“HQPDU”) when a noncitizen claims their removal is not reasonably foreseeable. Id. (citing 8
C.F.R. § 241.13). Respondents argue that Petitioner is not eligible for habeas relief because he did
not allege that he submitted a request for administrative review. Id. at 15-16. Finally, Respondents
assert that this Court is without jurisdiction to order Petitioner’s immediate release, to enjoin his
transfer, or to order additional procedures before removal to a third country. Id. at 16-17.
On November 16, 2025, Petitioner filed a Response in opposition to Respondents’ Motion
to Dismiss. In it, Petitioner reiterates that there is no significant likelihood of removal in the
reasonably foreseeable future, making his continued detention unconstitutional under Zadvydas.
Doc. 25 at 10-11. Petitioner also disputes Respondents’ argument that the Court lacks jurisdiction
under 8 U.S.C. 1252(g) or (b)(9) because Petitioner does not challenge the government’s decision
to commence, adjudicate, or execute a removal order but rather challenges his ongoing post-
removal order detention. Id. at 7-8. Petitioner further argues that Respondents failed to comply
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with regulatory revocation procedures—and that Respondents’ contention that notice and a hearing
is unnecessary is wrong because the circumstances show that Petitioner’s re-detention was due to
violations of his conditions of release and the decision to revoke without a hearing was not made
by the proper authorities. Id. at 12. Finally, Petitioner argues that administrative exhaustion is not
required and/or would be futile because ICE has already made multiple determinations that he
should remain detained. Id. at 13-14.
At the hearing in this matter, the Court converted Respondents’ Motion to Dismiss into a
Response to the Petition and converted Petitioner’s Response to the Motion to Dismiss into a Reply
in support of the Petition. See Doc. 28 at 1.2 The Court also asked the parties to submit additional
materials to confirm the facts necessary to rule on the Petition, Doc. 28 at 3, which the parties
jointly submitted on December 1, 2025, see Doc. 29.
II.
LEGAL STANDARDS
A. Jurisdiction
Habeas relief is available when a person “is in custody in violation of the Constitution or
2 Respondents’ Motion to Dismiss was filed in response to the Court’s October 15, 2025 Order to
Show Cause (Doc. 6). The applicable habeas statute does not contemplate a motion to dismiss but
rather requires the custodian to “show cause” why the writ should not be granted. See 28 U.S.C. §
2243 (“A court . . . entertaining an application for a writ of habeas corpus shall forthwith award
the writ or issue an order directing the respondent to show cause why the writ should not be
granted, unless it appears that the applicant or person detained is not entitled thereto.”). The
statute’s language is broad enough to encompass substantive and procedural arguments for not
granting the writ. In addition, “habeas proceedings may be exempt in some circumstances from
strict application of the Federal Rules of Civil Procedure[.]” Kilgore v. Att’y Gen. of Colorado,
519 F.3d 1084, 1088 (10th Cir. 2008). Given the plain language of § 2243 and the Court’s need to
resolve factual inconsistencies in the parties’ filings, the Court indicated at the hearing that it would
convert Respondents’ Motion to Dismiss into a return—or a “Response”—under § 2243. This
allows the Court to consider evidence outside of the Petition. See Alloway v. Jordan, 69 F. App’x
431, 433 (10th Cir. 2003). The government suffers no prejudice from this action, as the Court still
considers each of the arguments set forth in its Motion to Dismiss.
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laws or treaties of the United States[.]” 28 U.S.C. § 2241(c)(3). However, “[f]ederal courts are
courts of limited jurisdiction, possessing only that power authorized by Constitution and statute.”
Gunn v. Minton, 568 U.S. 251, 256, 133 S.Ct. 1059, 1064, 185 L.Ed.2d 72 (2013) (internal
quotation and citation omitted). Several provisions of the INA limit federal jurisdiction over
immigration cases. See, e.g., Santiago v. Noem, 2025 WL 2792588 (W.D. Tex. Oct. 2, 2025)
(analyzing 8 U.S.C. § 1252(g), § 1252(b)(9), and § 1252(a)(5)).
8 U.S.C. § 1252 governs judicial review of orders of removal. At issue in this proceeding
are § 1252(g) and § 1252(b)(9). Section 1252(g) strips courts of jurisdiction “to hear any cause or
claim by or on behalf of any [noncitizen] arising from the decision or action by the Attorney
General to commence proceedings, adjudicate cases, or execute removal orders against any
[noncitizen] under this chapter.” This language does not “sweep in any claim that can be
technically said to ‘arise from’ the three listed actions of the Attorney General.” Jennings v.
Rodriguez, 583 U.S. 281, 294, 138 S.Ct. 830, 841, 200 L.Ed.2d 122 (2018) (citing Reno v.
American-Arab Anti-Discrimination Comm., 525 U.S. 471, 482-83, 119 S.Ct. 936, 943, 142
L.Ed.2d 940 (1999)). The Supreme Court has stated that the language “refer[s] to just those three
specific actions themselves.” Id.
Section 1252(b)(9) states that “judicial review of all questions of law and fact . . . arising
from any action taken or proceeding brought to remove [a noncitizen] from the United States . . .
shall be available only in judicial review of a final order under this section.” This provision funnels
these claims into a petition for review filed with the appropriate court of appeals. See Tazu v. Att’y
Gen. of the United States, 975 F.3d 292, 299 (3d. Cir. 2020). This section does not, however,
foreclose claims challenging the length of an immigration detainee’s confinement, because
prolonged detention suggests that removal is not reasonably foreseeable. Id. (citing Demore v. Kim,
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538 U.S. 510, 527, 123 S.Ct. 1708, 1719, 155 L.Ed.2d 724 (2003)). In Zadvydas v. Davis, the
Supreme Court confirmed that “habeas corpus proceedings remain available as a forum for
statutory and constitutional challenges to post-removal-period detention.” 533 U.S. at 688.
B. Post-Removal Detention
A removable noncitizen may be detained during his removal proceedings and after he
receives an order of removal that becomes final. See 8 U.S.C. §§ 1225, 1226, 1231. Section 1231
governs the detention of noncitizens “during” and “beyond” the “removal period.” 8 U.S.C. §
1231(a)(2)-(6). In general, when a noncitizen is ordered removed, the Attorney General shall
remove them within 90 days, known as the “removal period.” § 1231(a)(1)(A). The “removal
period” begins once a noncitizen’s removal order “becomes administratively final,” §
1231(a)(1)(B), meaning the order has been affirmed by the BIA or the time for seeking review has
expired, 8 U.S.C. § 1101(a)(47)(B). During the removal period, ICE “shall detain the [noncitizen]”
as it conducts the removal. § 1231(a)(1)-(2). If ICE does not remove the noncitizen within the 90-
day removal period, the noncitizen “shall be subject to supervision under regulations prescribed
by the Attorney General.” § 1231(a)(3). Noncitizens subject to certain INA provisions or
determined to be a risk to the community or unlikely to comply with the order of removal “may be
detained beyond the removal period[.]” § 1231(a)(6) (emphasis added).
However, the Supreme Court acknowledged in Zadvydas that “[a] statute permitting
indefinite detention of a [noncitizen] would raise a serious constitutional problem.” 533 U.S. at
690. As such, the Court construed § 1231(a)(6) to limit the Attorney General’s discretion to detain
a noncitizen beyond the removal period to only that period of time “reasonably necessary to secure
removal.” Id. at 699. “Thus, if removal is not reasonably foreseeable, the court should hold
continued detention unreasonable and no longer authorized by statute.” Id. at 699-700.
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Six months of post-removal order detention was held to be “presumptively reasonable.” Id.
at 701. After this point, once a noncitizen “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. This presumption does not mean that
every noncitizen must be released if not removed after six months in detention. Id. Rather, a
noncitizen “may be held in confinement until it has been determined that there is no significant
likelihood of removal in the reasonably foreseeable future.” Id.
C. Administrative Exhaustion
Petitioners are ordinarily required to exhaust their administrative remedies prior to seeking
a writ under 28 U.S.C. § 2241. However, the Tenth Circuit has not addressed whether this
requirement applies in the immigration context, and the INA only explicitly requires exhaustion
of administrative remedies when challenging a final removal order. See § 1252(d)(1). “[W]here
Congress [has] not clearly required exhaustion, sound judicial discretion governs.” McCarthy v.
Madigan, 503 U.S. 140, 144, 112 S.Ct. 1081, 1086, 117 L.Ed.2d 291 (1992) (requiring courts to
weigh the institutional interests in exhaustion against the individual interests in prompt judicial
review).3 This suggests exhaustion is not a jurisdictional requirement in this context but a
prudential one.
When a noncitizen is subject to a final order of removal, 8 C.F.R. § 241.13 provides for
administrative review of their post-order detention to determine whether their removal is
reasonably foreseeable. While the Tenth Circuit has not clarified whether exhaustion of the §
3 McCarthy, decided in 1992, dealt with administrative exhaustion in the context of prison
litigation. In 1995, Congress passed the Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e
et seq., which explicitly requires administrative exhaustion by prisoners. McCarthy’s analysis has
thus been superseded by statute but only as it relates to prison litigation subject to the PLRA.
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241.13 is required before pursuing habeas relief on post-order detention, several district courts
have dismissed habeas petitions as premature when the Petitioner failed to comply with the
procedures in § 241.13. See, e.g., Royer v. Holder, 2012 WL 6553114, at *3 (M.D. Fla. Dec. 14,
2012) (dismissing habeas petition without prejudice because petitioner “does not assert that he has
submitted a written request for release to Headquarters or that any determination has been made
by Headquarters”); Meighan v. Chertoff, 2008 WL 1995374, at *2 (S.D. Tex. May 6, 2008)
(dismissing habeas petition without prejudice when petitioner had not shown that he had been in
custody for more than 6 months nor that he had exhausted the administrative remedies put in place
after Zadvydas); Saykin v. Holder, 2010 WL 1839413, at *2 (D. Mass. May 5, 2010) (denying
without prejudice petitioner’s petition for writ of habeas corpus on other grounds but noting that
if noncitizen files another habeas petition, he must allege whether he submitted a request to
Headquarters and “what action, if any, the government took on such a request or on any other
request for custody review”).
When exhaustion is required, “[a] narrow exception . . . applies if a petitioner can
demonstrate that exhaustion is futile.” Garza v. Davis, 596 F.3d 1198, 1203 (10th Cir. 2010).
III.
DISCUSSION
A. This Court has jurisdiction over Petitioner’s challenge to his detention.
In their Motion to Dismiss, Respondents claim that 8 U.S.C. § 1252(g) and (b)(9) preclude
this Court’s jurisdiction because the government’s detention of Mr. Jimenez Chacon was done for
the purpose of executing his removal order. Doc. 18 at 9-10. Respondents cite to multiple cases
where courts have declined to exercise jurisdiction over a challenge to revocation of release and/or
pre-removal detention. See Tazu v. Att’y Gen. of United States., 975 F.3d 292, 298 (3d. Cir. 2020)
(holding that “a brief door-to-plane detention is integral to the act of ‘execut[ing] [a] removal
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order.”); E.F.L. v. Prim, 986 F.3d 959, 965 (7th Cir. 2021) (declining to review a habeas petition
seeking to stay removal while the petitioner sought administrative relief); Westley v. Harper, 2025
WL 592788, at *6 (E.D. La. Feb. 24, 2025) (holding that revocation of release was unreviewable
because it was “inextricably intertwined” with a petitioner’s removal in the reasonably foreseeable
future); Najera v. Sessions, 2018 WL 11447065, at *3 (D. Ariz. May 15, 2018) (finding ICE’s
decision to revoke an order of supervision unreviewable because it “arose from” the decision to
execute a removal order). Petitioner argues that § 1252 does not strip this Court of jurisdiction
because he does not challenge the government’s discretion to execute the removal order against
him. Rather, he challenges the basis for and length of his post-removal order detention, which he
describes as “a heartland habeas corpus case.” See Doc. 25 at 7-8.
There are important factual distinctions between this case and those cited by Respondents
which demonstrate the attenuated link between Mr. Jimenez Chacon’s detention and the execution
of his removal order. Unlike the petitioner in E.F.L. v. Prim, Mr. Jimenez Chacon does not seek to
stay his removal pending some administrative remedy. At the time he was re-detained, Petitioner
already had CAT deferral, and his argument in this proceeding is not that his removal should be
stayed but that his removal is not reasonably foreseeable. And unlike the petitioners in Tazu,
Westley, and Najera, the evidence in the record does not suggest that Mr. Jimenez Chacon’s
removal was or is impending, let alone reasonably foreseeable, such that his re-detention was a
brief and integral part of executing his removal order. Cf. Tazu, 975 F.3d at 298 (emphasizing the
Attorney General’s “discretionary power to detain [a noncitizen] for a few days” in order to
complete a removal (emphasis added)).
Mr. Jimenez Chacon was released on supervision in 2017 after DHS was unable to find a
third country to accept him for removal. Doc. 1 at ¶¶ 1, 29; Doc. 18-1 at ¶¶ 12-14. When ICE re-
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detained Petitioner in February 2025, they still had no country to which to deport him—and his
CAT deferral remained active such that he could not be deported to Mexico. Before Mr. Jimenez
Chacon moved to terminate his CAT deferral, he languished in custody for at least four months
while ICE looked, without success, for a third country to which to deport him. Doc. 1 at ¶¶ 31, 33;
Doc.18-1 at ¶¶ 18-24. To this day, he remains detained with a CAT deferral in place, and there
appears to be no third country that has agreed to accept him. This represents a much longer
detention than those contemplated in the above-cited cases, making it less likely that Petitioner’s
detention is directly linked to his removal order. And ICE could have continued seeking a third
country without detaining Mr. Jimenez Chacon, in contrast to the above-cited cases where the
purpose of detention was to immediately remove the petitioner. The government’s detention of
Petitioner lacks the direct link to his removal proceedings or to the execution of his removal order
to fall under the ambit of § 1252(g) or § 1252(b)(9). Therefore, these provisions do not defeat the
Court’s exercise of jurisdiction in this matter.
B. Petitioner’s continued detention violates § 1231 of the INA.
1. Petitioner has been detained for at least 11 months for the purposes of analysis under
Zadvydas.
At the hearing in this matter, the government urged this Court not to count the three months
of Petitioner’s detention between moving to terminate his CAT deferral and withdrawing the
motion to terminate. See Doc. 28 at 2. Counsel for Respondents argued that Petitioner should not
be rewarded for changing his mind regarding his CAT deferral, as it is possible that he would have
been removed to a third country—or to Mexico, after the termination was granted—if not for the
Petitioner’s changed position. Id. Discounting these three months would put Petitioner’s current
period of detention at or within the presumptively reasonable six month “limit” set by Zadvydas.
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The government’s position fails to account for the four months that Petitioner spent in
detention in late 2016 and early 2017 before he was released on supervision. At least four district
courts around the country have held that the clock does not “start over” for purposes of Zadvydas
if a person is re-detained. See, e.g., Villanueva v. Tate, 2025 WL 2774610, at *9 (S.D. Tex. Sept.
26, 2025); Nguyen v. Scott, 2025 WL 2419288, at *13 (W.D. Wash. Aug. 21, 2025); Sied v. Nielson,
2018 WL 1876907, at *6 (N.D. Cal. Apr. 19, 2018); Chen v. Holder, 2015 WL 13236635, at *2
(W.D. La. Nov. 20, 2015) (“Surely, under the reasoning of Zadvydas, a series of releases and re-
detentions by the government, as was done in this case, while technically not in violation of the
presumptively reasonable jurisprudential six month removal period, in essence results in an
indefinite period of detention, albeit executed in successive six month intervals.”). Three district
courts have seemingly held the opposite. See Guerra-Castro v. Parra, 2025 WL 1984300, at *4
(S.D. Fla. July 17, 2025); Thai v. Hyde, 2025 WL1655489, at *3 (D. Mass June 11, 2025); Meskini
v. Att’y Gen. of United States, 2018 WL 1321576 (M.D. Ga. Mar. 14, 2018). This Court, however,
is persuaded by the reasoning in Chen and is disinclined to allow such gamesmanship by the
government. See also Villanueva, 2025 WL 2774610, at *9 (coming to a similar conclusion).
Therefore, even if the Court discounts the three months between Petitioner’s change in position on
the termination of his CAT deferral, he has still spent at least eleven months in detention when
considering the time he spent detained eight years ago. Respondents’ argument thus does not
support a presumption that Petitioner’s detention is reasonable.
2. Petitioner’s removal is not “reasonably foreseeable.”
In Zadvydas, the Supreme Court established that a noncitizen may only be detained so long
as is “reasonably necessary to bring about [their] removal from the United States.” 533 U.S. at
689. And six months was found to be presumptively reasonable. Id. at 701. After the six-month
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mark, if a noncitizen provides good reason to believe their removal is not “significantly likely in
the reasonably foreseeable future[,]” the burden shifts to the government to rebut this showing or
release the noncitizen. Johnson v. Guzman Chavez, 594 U.S. 523, 529, 141 S.Ct. 2271, 2282, 210
L.Ed.2d 656 (2021) (citing Zadvydas, 533 U.S. at 701).
The evidence before the Court demonstrates that Petitioner’s removal is not significantly
likely to occur in the reasonably foreseeable future. Both parties agree that Petitioner’s CAT
deferral remains active while his BIA appeal is pending. See Doc. 28 at 2. This means that
Petitioner cannot be removed to Mexico, at least until the appeal is resolved. The timeline of the
appeal is unknown and could extend Petitioner’s detention by several more months. In addition, if
Petitioner wins his appeal, his CAT deferral will remain in place indefinitely. The government has
also not been able to identify a third country to accept Petitioner. Like the petitioners in Zadvydas,
the government has tried but failed for over six months to secure Mr. Jimenez Chacon’s removal
to a third country. In fact, between 2016 and 2025, at least five countries have declined to accept
him. See Doc. 18-1 at ¶¶ 12-13, 22-24. The remote prospect of removal—to a hypothetical third
country that may eventually choose to accept him—does not make Petitioner’s removal reasonably
foreseeable. See Zadvydas, 533 U.S. at 702. Petitioner has thus met his initial burden under
Zadvydas.
The government has failed to rebut this showing or otherwise justify continued detention.
Aside from briefly mentioning that they reached out to the Middle East/East Africa Division about
third country removal, see Doc. 18-1 at ¶ 38, Respondents have provided no indication that a third
country is likely to accept Petitioner in the reasonably foreseeable future. Even if one did,
Petitioner may be entitled to notice and an opportunity to seek protection from removal, further
prolonging his detention should he be allowed to remain in custody. See 8 U.S.C. § 1231(b)(3)(A).
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At the hearing, counsel for the government argued that detention longer than six months
may be reasonable in this case given the difficulty of securing third country removal because of
Petitioner’s criminal record. See Doc. 28 at 2. But Zadvydas itself dealt with petitioners who had
significant criminal records—arguably more serious than Mr. Jimenez Chacon’s—which likely
obstructed their prompt removal to a third country. See 533 U.S. at 684-685. One of the Zadvydas
petitioners even had a history of flight from criminal and deportation proceedings. Id. The Supreme
Court nevertheless held six months was a presumptively reasonable period to bring about removal
and did not create a carveout for noncitizens with criminal records whose acceptance by a third
country might be more difficult to secure. This argument fails to justify Mr. Jimenez Chacon’s
continued detention beyond six months.
Allowing Petitioner’s continued detention would more closely reflect the Fifth Circuit’s
rule, rejected by the Supreme Court in Zadvydas, which allowed indefinite detention so long as
the government attempts in good faith to effectuate removal. See id. at 702. The Supreme Court
has made clear that the INA—and the Due Process Clause—demands more. Because Petitioner
has been detained more than six months and his removal is not reasonably foreseeable, his ongoing
detention violates the INA.
C. Administrative exhaustion, to the extent it is required, should be waived here.
Respondents argue that, as a prudential matter, this Court should decline to rule on the
Habeas Petition because Petitioner has not completed the administrative review process set out in
8 C.F.R. § 241.13. Doc. 18 at 15. When Congress has not explicitly required exhaustion by statute,
“sound judicial discretion governs.” McCarthy, 503 U.S. at 144. However, the Supreme Court has
made clear that courts must exercise this discretion “in a manner consistent with congressional
intent and any applicable statutory scheme.” Id. This requires the Court to “balance the interest of
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the individual in retaining prompt access to a federal judicial forum against countervailing
institutional interests favoring exhaustion”—namely, the interests in protecting administrative
agency authority and promoting judicial efficiency. Id. at 145-46.
McCarthy provides helpful guidance for achieving such a balance. In that case, the
Supreme Court first identified two situations relevant to the agency’s authority where concerns
favoring exhaustion apply with particular force: (1) “when the action under review involves
exercise of the agency’s discretionary power[,]” and (2) when the agency proceedings in question
allow the agency to apply its special expertise.” Id. at 145. The Court also noted that exhaustion
promotes judicial efficiency by allowing the agency an opportunity to correct its own errors and/or
by producing a useful record for subsequent judicial consideration, “especially in a complex or
technical factual context.” Id. The Court then points to precedent recognizing three broad sets of
circumstances where the individual interests at stake weigh heavily against requiring exhaustion
because an administrative remedy might be inadequate: (1) where it “occasion[s] undue prejudice
to subsequent assertion of a court action[,]” (2) where there is some doubt as to whether the agency
can grant effective relief, and (3) “where the administrative body is shown to be biased or has
otherwise predetermined the issue before it.” Id. at 146-49.
None of these circumstances—weighing for or against exhaustion—are particularly
applicable in this case. First, while decisions about removal and detention certainly fall within
DHS and ICE’s discretion, possibly weighing in favor of exhaustion, Petitioner’s Petition centers
on the foreseeability of his removal in light of his prolonged detention. ICE’s discretion to continue
detaining someone whose removal is not reasonably foreseeable is cabined by Zadvydas and, more
precisely, an individual’s due process rights. And the foreseeability of removal depends not upon
ICE’s discretion but the feasibility of identifying a third country for removal, which is outside of
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the agency’s control. Nor does such a determination require the exercise of agency expertise. The
gravamen of the Petition in this case concerns Petitioner’s due process rights. Courts are well-
equipped to analyze due process claims, especially given the post-removal period detention
framework laid out in Zadvydas and its progeny. Beyond this, judicial efficiency concerns are less
relevant here because the factual context is not particularly complex or technical.
It also does not seem that the three circumstances weighing against exhaustion identified
in McCarthy are applicable. Petitioner has not argued that a request for release to the HQPDU
would prejudice subsequent court action or that the HQPDU cannot grant effective relief. And
while Petitioner does assert that exhaustion would be futile because headquarters has already
reviewed and denied past requests for release, Doc. 25 at 14, the evidence suggests that ICE has
not considered release given the foreseeability—or lack thereof—of Petitioner’s removal, Doc. 29
at 36-37 (“Exhibit C”), 39-41 (“Exhibit E”).4 Instead, ICE’s past custody reviews and Petitioner’s
request for release seemingly focused on whether he is a danger to the community and/or a flight
risk. Id. See also Exhibit F. And there is no evidence in the record suggesting that the agency’s
position on this matter is otherwise biased or predetermined.
There are, however, significant individual liberty interests at stake in this case that weigh
in favor of immediate judicial review. In Zadvydas, the Supreme Court highlighted the due process
concerns inherent in indefinite detention. 533 U.S. at 690-96. Mr. Jimenez Chacon is in the very
4 In another recent case in this District, Chief Judge Gonzales found that requiring exhaustion of
administrative remedies would be futile where ICE headquarters had already evaluated the
petitioner’s custody and decided to continue her detention. See Salazar-Martinez v. Lyons et al.,
2025 WL 3204807, at *1 (D.N.M. Nov. 17, 2025). With additional information about how the
headquarters custody review process in Salazar-Martinez compares to the custody reviews in this
case, this Court might be persuaded that requiring exhaustion in this case would also be futile.
However, the Court does not have this information and need not analyze the futility exception here
given the analysis on exhaustion to follow.
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position that the Court in Zadvydas sought to prevent, having spent at least 11 months in
immigration detention while awaiting removal to some unknown third country that has yet to
accept him, despite numerous attempts by the U.S. government to identify one. See id. at 699.
After the presumptive six-month window and once Petitioner provides reason to believe his
removal is not significantly likely in the reasonably foreseeable future, the burden is on the
government to justify continued detention by showing that removal is reasonably foreseeable.
Johnson v. Guzman Chavez, 594 U.S. at 529. Requiring Petitioner to submit a request for release
to HQPDU at this point would place the burden back on him and further prolong his already
lengthy detention. Weighing Mr. Jimenez Chacon’s liberty interests against the institutional
purposes of administrative exhaustion, which are not particularly relevant here, the Court finds
that Petitioner’s failure to exhaust administrative remedies pursuant to § 241.13 does not bar
habeas relief in this case.
D. The Court need not decide the legality of Petitioner’s initial arrest and the revocation of
his supervision.
Under 8 C.F.R. § 241.4(l)(1), a noncitizen facing revocation of release for violating
conditions of release is entitled to notice and an informal interview. By contrast, § 241.4(l)(2)
allows for revocation of release without this process when the decision is made in the discretion
of either the Executive Associate Commissioner or, when the circumstances do not reasonably
permit referral of the case to the Executive Associate Commissioner, a district director. At least
one other district court has found that the revocation of a noncitizen’s Order of Supervision
violated the applicable governing statutes and regulations when the noncitizen received no notice
and the government provided no evidence that release was “lawfully revoked by someone with the
authority to do so and for a reason lawfully permitted[.]” See Villanueva v. Tate, 2025 WL 2774610,
at *6-7.
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In this case, the evidence before the Court suggests that Petitioner was arrested and re-
detained because he violated his conditions of release by failing to report to an ICE appointment
in 2023. See Doc. 29 at ¶¶ 13-14. Respondents suggest Petitioner was not entitled to this process
because his Order of Supervision was revoked not because he violated conditions of release, but
simply “in the discretion of ICE,” which does not require notice or an interview under §
241.4(l)(2). But the provision cited by Respondents only allows for revocation of release when
made by certain officers, described above, and for certain reasons outlined in the regulation. The
government has provided no information about who made the decision to revoke Petitioner’s Order
of Supervision, and whether it complied with § 241.4(l)(2) such that no notice or hearing was
required. This provides the Court reason to believe that the revocation of Petitioner’s release
without due process may have been unlawful.
However, without knowing who revoked Petitioner’s Order of Supervision and why, the
Court cannot determine with certainty the legality of his arrest and re-detention. Either way,
because the Court has determined that Petitioner’s continued detention violates the INA under
Zadvydas, Mr. Jimenez Chacon is entitled to immediate release. The Zadvydas Court explicitly
contemplated release as the appropriate remedy for that sort of violation. See 533 U.S. at 701. This
Court’s finding in Subsection B thus provides sufficient grounds to grant Petitioner’s request for
release, without needing to determine whether Petitioner’s arrest and detention without notice or
a hearing was lawful in the first place.
IV.
CONCLUSION
For the reasons stated above, Petitioner’s Petition for Writ of Habeas Corpus is
GRANTED.
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IT IS THEREFORE ORDERED that Respondents release Petitioner from custody
within 24 hours of this Order and restore Petitioner’s Order of Supervision under the same terms
as were in place before February 14, 2025.
IT IS SO ORDERED.
HONORABLE DAVID HERRERA URIAS
UNITED STATES DISTRICT JUDGE
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