Case Name in Immigration Case - Unavailable

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
OLATUNDE A. VINCENT,
Petitioner,
v. 	2:26-cv-00104-JB-KK
TODD BLANCHE, Acting U.S. Attorney
General, et al., 1
Respondents.
PROPOSED FINDINGS AND RECOMMENDED DISPOSITION
THIS MATTER is before the Court on Petitioner Olatunde A. Vincent’s Petition for a
Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 (Doc. 1) (“Petition), filed January 20, 2026.
The Federal Respondents filed a response to the Petition on February 9, 2026. (Doc. 12).
Petitioner filed replies in support of the Petition on February 20, 2026, and March 2, 2026.
(Docs. 13, 16). Warden Dora Castro did not file a response to the Petition.2 United States
District Judge James O. Browning referred this case to me pursuant to 28 U.S.C. §§ 636(b)(1)(B)
and (b)(3) to conduct hearings, if warranted, and to perform any legal analysis required to
recommend to the Court an ultimate disposition. (Doc. 5). Having considered the parties’
submissions and the relevant law, I conclude that Petitioner is entitled to relief. Therefore, I
recommend that the Court GRANT the Petition because Petitioner is being indefinitely detained
without a “significant likelihood of removal in the reasonably foreseeable future.” Zadvydas v.
Davis, 533 U.S. 678, 701 (2001).
1 Todd Blanche, Acting Attorney General, is automatically substituted in place of Pamela Bondi
as the defendant in this action pursuant to Fed. R. Civ. P. 25(d).
2 However, as Federal Respondents note in their response, “all arguments made on behalf of the
remaining Respondents apply equally to the Warden.” (Doc. 12 at 1 n. 1).
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I. 	Factual Background
Petitioner has been in immigration detention since at least April 23, 2025. (Docs. 3 at 2;
12-1 at 2). He is currently incarcerated at the Otero County Processing Center in Chaparral, New
Mexico. (Doc. 1 at 3).
Petitioner is a Nigerian citizen who entered the United States at the John F. Kennedy
International Airport via a B-2 nonimmigrant visa in October 2018. (Docs. 3 at 1; 12-2 at 1).
Petitioner eventually settled in Maryland, where he secured a job as a delivery driver for
Amazon. (Doc. 3 at 1). Petitioner avers that on May 20, 2020, his status “was adjusted to a
lawful resident of Maryland with approved documentation.” (Id.).
However, on November 1, 2021, Petitioner was arrested while on his way to work. (Id.).
On July 5, 2022, he was convicted of conspiracy to commit wire fraud and aggravated identity
theft in violation of 18 U.S.C. §§ 1349 and 1028A. (Docs. 12-1 at 2; 12-2 at 3; 13 at 20). For
these convictions, Petitioner was sentenced to prison for fifty months and given two years of
supervised release following his release from prison. (Docs. 1-6 at 6, 9; 12-2 at 3). Petitioner
served at least part of his prison sentence at the federal correctional facility in Ashland,
Kentucky. (Doc. 3 at 1).
Due to his criminal convictions, removal proceedings were initiated against Petitioner.
(Doc. 12-2 at 1). Following his release from prison on August 9, 2024, Petitioner was
transferred to the custody of the United States Immigration and Customs Enforcement (“ICE”)
agency. (Docs. 1-6 at 7; 12-2 at 8). A final order of removal was entered against Petitioner on
August 15, 2024, (Docs. 1 at 2; 1-6 at 2), pursuant to the Immigration and Nationality Act
(“INA”). See 8 U.S.C. §§ 1101(a)(43)(M)(i), (U) (defining an aggravated felony as an offense
that “involves fraud or deceit in which the loss to the victim or victims exceeds $10,000” or “an
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attempt or conspiracy to commit an offense described in this paragraph.”), 1227(a)(2)(A)(iii)
(providing that any “alien who is convicted of an aggravated felony at any time after admission
is deportable.”).3
On April 23, 2025, Petitioner was transferred to the Otero County Processing Center.
(Docs. 3 at 2; 12-1 at 2). On July 7, 2025, ICE’s Enforcement and Removal Operations (“ERO”)
division reviewed Petitioner’s custody status and advised him that he could “submit evidence in
support of his release.” (Doc. 12-1 at 3). However, after this review, ICE determined that
Petitioner should remain in custody “since removal is likely to occur in the reasonably
foreseeable future.” (Id.). In October 2025, the ERO again reviewed Petitioner’s custody status.
(Id.). Following this review, Petitioner was advised that “he would not be released from ICE
custody because there [was] a significant likelihood of removal in the reasonably foreseeable
future.” (Id.). While in detention at the Otero County Processing Center, Petitioner filed an I-589
Application for Asylum and Withholding of Removal, expressing fear for his safety should he be
deported to Nigeria due to his status as a member of the LGBTQ community. (Doc. 1-7 at 29–
33). Petitioner has also provided an affidavit from his spouse, which indicates he is still pursuing
relief from his final order of removal. (Doc. 21 at 16).
The Federal Respondents assert that they are “actively working to remove Petitioner in the
foreseeable future.” (Doc. 12 at 5). On March 16, 2026, Federal Respondents submitted a status
report to the Court indicating that Petitioner was scheduled to be removed to Nigeria before
March 31, 2026. (Doc. 18.) However, on April 2, 2026, Federal respondents reported that
Petitioner had not been removed and that no removal flight has been scheduled. (Doc. 20.)
II. 	The Parties’ Arguments
3 Petitioner does not dispute that he was convicted of an aggravated felony.
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As part of the relief requested in his Petition, Petitioner seeks his immediate release from
custody at the Otero County Processing Center. (Doc. 1 at 8). He argues that his continued and
indefinite detention violates the Due Process Clause of the Fifth Amendment to the United States
Constitution in two separate ways. (Id. at 6–7). First, he argues that his continued and indefinite
detention violates his “right to substantive due process through a deprivation of the core liberty
interest in freedom from bodily restraint.” (Id. at 6). More specifically, Petitioner contends that
he has “already been detained in excess of six months and [his] removal is not significantly
likely to occur in the reasonably foreseeable future.” (Id. at 7).
Second, Petitioner asserts that his procedural due process rights have been violated
because he has been denied an opportunity to demonstrate that he should not be detained. (Id.).
In what appears to be a related argument, Petitioner also contends that he did not receive
“adequate notice of the precise charge of ‘conspiracy’ under § 101(a)(43)(U) of the Act upon
which [he] is deportable and the statutory provision alleged to have been violated.” (Id. at 3).
Additionally, Petitioner makes an Accardi doctrine 4 argument, contending that the Federal
Respondents’ failure “to follow its own regulations poses a high probability that the agency is
not acting in accordance with the Administrative Procedure Act (‘APA’) regulations.” (Id.).
In response to Petitioner’s substantive due process argument, the Federal Respondents
note that it is “well established that detention is a constitutionally valid aspect of the deportation
process.” (Doc. 12 at 3). Moreover, they argue that 8 U.S.C. § 1231(a)(6) authorizes detention
beyond the typical removal period for aliens5 , like Petitioner, who have been convicted of an
4 In Accardi, the Supreme Court held that an agency must follow its own regulations. See United
States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 268 (1954)
5 The term “alien” is used in the relevant statutory framework, and thus I only use the word to
reflect this framework.
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aggravated felony. (Id. at 5). Additionally, the Federal Respondents state that, upon information
and belief, “Petitioner’s removal is significantly likely in the reasonably foreseeable future.”
(Id.).
The Federal Respondents also assert that Petitioner’s procedural due process argument is
equally without merit, arguing that he was served “with a Notice of Intent to Issue a Final
Administrative Order along with the charges or removability.” (Id. at 4). However, the Federal
Respondents argue that Petitioner “failed to sign the certificate of service or acknowledge
receipt.” (Id.). Accordingly, the Federal Respondents argue that “Petitioner’s failure to engage in
the process does not provide an exception to his removal or validate his claim for habeas relief.”
(Id. at 5).
However, the Federal Respondents advance no argument in their response regarding
Petitioner’s Accardi doctrine argument.
II. 	Discussion
I recommend that the Court find that Petitioner’s Fifth Amendment rights are being
violated by his indefinite and continued detention. See Zadvydas, 533 U.S. at 701. Additionally,
I recommend that the Court decline to address Petitioner’s remaining arguments. Based on these
findings, I recommend that the Court order Petitioner’s immediate release pursuant to an order of
supervision. See Kalombo v. Shanahan, No. 07 Civ. 11350 (PKC), 2009 WL 1788589, at *4
(S.D.N.Y. June 23, 2009). 6
6 The applicable regulations provide that an alien released after the removal period under 8
U.S.C. §1231(a)(1) “shall be released pursuant to an order of supervision.” 8 C.F.R. § 241.5(a).
The order of supervision, at a minimum, should address the following:
(1) A requirement that the alien report to a specified officer periodically and
provide relevant information under oath as directed;
(2) A requirement that the alien continue efforts to obtain a travel document and
assist the Service in obtaining a travel document;
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A. 	Overview of Legal Principles Applicable to Habeas Corpus Petitions
This Court is authorized 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 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, 533 U.S. at 687–88).
The Fifth Amendment’s Due Process Clause prohibits the Government from depriving
any person of “life, liberty, or property, without due process of law[.]” U.S. Const. amend. V.
“Freedom from imprisonment—from government custody, detention, or other forms of physical
restraint—lies at the heart of the liberty that [the Due Process] Clause protects.” Zadvydas, 533
U.S. at 690.
“[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). This period of time is
called the “removal period.” Id. The removal period begins once the removal order “becomes
administratively final,” § 1231(a)(1)(B), meaning the order has been affirmed on appeal or the
time to file an appeal has expired. Id. § 1101(a)(47)(B). In certain enumerated circumstances, an
alien “may be detained beyond the removal period.” Id. § 1231(a)(6); see also Johnson v.
Guzman Chavez, 594 U.S. 523, 528–29 (2021) (providing that an alien may be detained beyond
(3) A requirement that the alien report as directed for a mental or physical
examination or examinations as directed by the Service;
(4) A requirement that the alien obtain advance approval of travel beyond
previously specified times and distances; and
(5) A requirement that the alien provide DHS with written notice of any change of
address in the prescribed manner.
Id.
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the removal period where (1) the alien fails to make a timely application for travel documents or
acts to prevent his removal; (2) removal is not practicable or proper; (3) the alien is inadmissible,
removable as a result of violations of status requirements, or there are national security or foreign
policy reasons for not removing the alien; or (4) the alien is a risk to the community or unlikely
to comply with a removal order).
However, in Zadvydas, the Supreme Court explained that “[a] statute permitting
indefinite detention of an alien would raise a serious constitutional problem.” 533 U.S. at 690.
As such, the Court construed § 1231(a)(6) to limit “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. “Thus, if removal is not reasonably foreseeable, the court should hold continued detention
unreasonable and no longer authorized by statute.” Id. at 699–700.
Under Zadvydas, six months of post-removal order detention is “presumptively
reasonable.” Id. at 701. After this point, “once the 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. This presumption
does not mean that every alien must be released if not removed after six months in detention. Id.
Rather, “an alien may be held in confinement until it has been determined that there is no
significant likelihood of removal in the reasonably foreseeable future.” Id.
To show there is “good reason to believe that there is no significant likelihood of removal
in the reasonably foreseeable future,” a petitioner is not required to “show the absence of any
prospect of removal.” Id. at 702 (emphasis in original). Instead, they are only required to provide
a “good reason to believe” that removal is unlikely—“[t]his distinction is not a matter of
semantics, but an important clarification of Petitioner’s burden at this stage.” Aguilar v. Noem,
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Case No. 25-cv-03463-NYW, 2025 WL 3514282, at *4 (D. Colo. Dec. 8, 2025) (internal citation
omitted). Courts have found that such a “good reason” exists when the presumptively reasonable
six months of detention have passed, and other circumstances also indicate that there is no
significant likelihood of removal. See, e.g., Ahrach v. Baltazar, Civil Action No. 25-cv-03195-
PAB, 2025 WL 3227529, at *4 (D. Colo. Nov. 19, 2025) (finding Petitioner’s burden satisfied
where Petitioner detained for roughly seven months and “ICE made no efforts to remove [her]
beyond soliciting acceptances” from three countries on just one day); Salazar-Martinez v. Lyons,
No. 2:25-CV-00961-KG-KBM, 2025 WL 3204807, at *2 (D.N.M. Nov. 17, 2025) (finding
Petitioner’s burden satisfied where Petitioner detained for seven months and “ICE has not
‘identif[ied] any country that has agreed to accept her.’” (alteration in original)); Zhuzhiashvili v.
Carter, 802 F.Supp.2d 1337, 1339 (D. Kan. 2025) (finding Petitioner’s burden satisfied where
Petitioner detained for seven months and “officials have made no progress towards his removal
or even identified a possible destination.”); Vargas v. Noem, Case No. 25-3155-JWL, 2025 WL
2770679, at *2 (D. Kan. Sep. 29, 2025) (Petitioner detained for nine months and “officials have
not been able even to name for him any country to which an inquiry has been made or to which
petitioner might possibly be removed.”). Notably, “[t]he mere fact that the requisite six months
have now elapsed is not sufficient to meet [Petitioner’s] burden.” Reyna-Salgado v. Noem, Case
No. 25-3172-JWL, 2025 WL 3209007, at *2 (D. Kan. Oct. 3, 2025) (citing Zadvydas, 533 U.S.
at 701).
After a petitioner has shown that there is “good reason to believe that there is no
significant likelihood of removal in the reasonably foreseeable future,” the burden turns to the
respondents to rebut the petitioner. Zadvydas, 533 U.S. at 701. The respondents must provide
“evidence” in rebuttal. Id. “Unsubstantiated assertions do not meet this burden.” Aguilar, 2025
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WL 3514282, at *6 (citing Pena-Gil v. Lyons, Civil Action No. 25-cv-03268-PAB-NRN, 2025
WL 3268333, at *4 (D. Colo. Nov. 24, 2025) (collecting cases)). “[U]nilateral effort without
establishing actual progress toward removal” is also insufficient. Lorenzo v. Bondi, Case No.
2:25-cv-00923 KWR-GJF, 2026 WL 84521, at *5 (D.N.M. Jan. 12, 2026). “[G]ood faith efforts
to effectuate . . . deportation” without a significant likelihood of reasonably foreseeable removal
are similarly insufficient. Zadvydas, 533 U.S. at 702.
“[F]or detention to remain reasonable, as the period of prior postremoval confinement
grows, what counts as the ‘reasonably foreseeable future’ conversely would have to shrink.” Id.
at 701; see also Arthur v. Mukasey, Civil Action No. 09-cv-00059-MSK-KMT, 2010 WL
234936, at *1 n.1 (D. Colo. Jan. 19, 2010) (“As the period of detention grows, so does the
burden on the government to demonstrate that removal is reasonably foreseeable.”). Finally, the
Respondents’ allegations, “if not traversed, shall be accepted as true except to the extent that the
judge finds from the evidence that they are not true.” 28 U.S.C. § 2248.
In this case, Petitioner is entitled to habeas relief because he is being detained with no
significant likelihood of removal in the reasonably foreseeable future.
B. 	Petitioner has shown that there is good reason to believe that there is no significant
likelihood of removal in the reasonably foreseeable future.
Petitioner has demonstrated “good reason to believe that there is no significant likelihood
of removal in the reasonably foreseeable future.” See Zadvydas, 533 U.S. at 701. It is undisputed
that Petitioner, at this time, has been detained for almost twelve months. While this alone is
insufficient for Petitioner to satisfy his burden, see Reyna-Salgado, 2025 WL 3209007, at *2,
Petitioner has also presented evidence that he currently does not have a valid passport, a basic
form of identification that is often necessary to verify an alien’s identity and permit their entry
into another country. (Docs. 1-4 at 16; 1-7 at 29). As the evidence presented by the Federal
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Respondents demonstrates, this has hampered efforts to have the Nigerian government verify
Petitioner’s identity and, presumably, to issue travel documents. (Doc. 12-1 at 4). With the
Nigerian government being unable, or perhaps unwilling, to verify Petitioner’s identity, obvious
barriers exist that make it unlikely that travel documents will be obtained for Petitioner in the
reasonably foreseeable future. See Izbitski v. Carnes, 1:25-cv-00778-JB-JMR, 2025 WL
3754485, at *4 (D.N.M. Dec. 29, 2025) (concluding that Petitioner had met his burden to
establish that removal was not significantly likely to occur in the reasonably foreseeable future
where there were “obvious barriers to obtaining travel documents.”), report and recommendation
adopted, No. CV-0778 JB/JMR, 2026 WL 102974 (D.N.M. Jan. 14, 2026).
With such obvious barriers currently in place, there is simply no evidence indicating that
travel documents will be obtained for Petitioner in the reasonably foreseeable future. See Sereste-
Khama v. Ashcroft, 215 F.Supp.2d 37, 50 (D.D.C. 2002) (concluding that removal was not
significantly likely in the reasonably foreseeable future where the respondents had not shown
that “any travel documents are in hand, nor have they provided any evidence, or even assurances
from the [foreign] government, that travel documents will be issued in a matter of days or weeks
or even months.”). Travel documents requests on behalf of the Petitioner were first sent to the
Nigerian consulate nearly a year ago. (Doc. 12-1 at 3). To date, there is no evidence that travel
documents have been obtained, which itself suggests that they will not be forthcoming in the
reasonably foreseeable future. See Samadi v. Warden Richwood Corr. Ctr., CIVIL ACTION NO.
25-1889, 2026 WL 660574, at *2 (W.D. La. Mar. 9, 2026) (“[T]hat Respondents have not
obtained a travel document following these requests submitted almost nine months ago suggests
that a travel document is not significantly likely to be forthcoming in the reasonably foreseeable
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future.”) (emphasis in original), report and recommendation adopted, CASE NO. 3:25-CV-
01889 SEC P, 2026 WL 663239 (W.D. La. Mar. 9, 2026).
Moreover, the Federal Respondents have not even attempted to identify a possible
alternative destination to which Petitioner could be removed. See Salazar-Martinez, 2025 WL
3204807, at *2; see also Zhuzhiashvili, 802 F.Supp.2d at 1339. Given these circumstances,
Petitioner has “good reason to believe that there is no significant likelihood of removal in the
reasonably foreseeable future.” Zadvydas, 533 U.S. at 701.
C. 	The Federal Respondents have not met their burden to show evidence of a significant
likelihood of removal in the reasonably foreseeable future.
The Federal Respondents have not met their burden to show that there is a significant
likelihood of removal in the reasonably foreseeable future. Id. While the Respondents have
provided some evidence to rebut Petitioner’s showing, (see Docs. 12-1, 18, 20), the evidence is
insufficient. Petitioner’s detention has lasted for at least twelve months, more than twice the
length of time the Supreme Court decided was “presumptively reasonable” in Zadvydas. Id.
Given this prolonged detention, “what counts as the ‘reasonably foreseeable future’” must
conversely shrink. Id.
At most, the Federal Respondents have presented evidence demonstrating that they have
attempted to work with the Nigerian government to effectuate Petitioner’s removal. (Doc. 12-1 at
3–4). However, “[g]eneral indications that U.S. agencies have been in discussions with [the
target country] regarding [removal] efforts do not indicate that those discussions will result in the
timely removal of Petitioner, as it is unclear whether those efforts will be successful.” Dao v.
Bondi, CASE NO. 2:25-cv-02340-LK, 2026 WL 18626, at *4 (W.D. Wash. Jan. 2, 2026). (first
alteration in original) (citation omitted). Accordingly, this evidence is insufficient to carry the
Federal Respondents’ burden.
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Moreover, as the Federal Respondents’ evidence demonstrates, efforts to work with the
Nigerian government to effectuate Petitioner’s removal have not been particularly fruitful. For
example, ICE’s ERO division first requested travel documents from the Nigerian consulate on
May 23, 2025, nearly one year ago. (Doc. 12-1 at 3). Apparently, this request did not lead to
anything, as travel documents were again requested from the Nigerian consulate on October 9,
2025. (Id.). On November 7, 2025, the ERO reviewed Petitioner’s file without any update “from
the Nigerian consulate towards the travel documents.” (Id.). The ERO subsequently submitted an
Electronic Nationality Verification (“EVA”) request to the Nigerian consulate on November 19,
2025, “using the petitioner’s passport number.” (Id.). On December 5, 2025, the Nigerian
government denied the EVA request because they “could not verify the petitioner’s identity
through his passport number.” (Id. at 4). While these efforts appear to have been made in good
faith, such efforts, without any evidence of actual progress, are insufficient to demonstrate that
removal is significantly likely to occur in the reasonably foreseeable future. See Macias v.
Baltazar, Civil Action No 1:26-cv-01046-SKC, 2026 WL 865174, at *4 (D. Colo. Mar. 30,
2026) (“Instead, the government must make legitimate progress towards removal.”); see also
Hassoun v. Sessions, Case # 18-CV-586-FPG, 2019 WL 78984, at *5 (W.D.N.Y. Jan. 2, 2019)
(explaining that “the reasonableness of Petitioner’s detention turns on whether and to what extent
the government’s efforts are likely to bear fruit. Diligent efforts alone will not support continued
detention.”).
The Federal Respondents also have presented evidence that an interview was requested
with the Nigerian embassy on January 27, 2026. (Doc. 12-1 at 4). However, this is inadequate to
demonstrate that removal is significantly likely to occur in the reasonably foreseeable future. See
Bunnell v. Noem, Case No. 2:25-cv-02259-GMN-EJY, 2025 WL 3707588, at *4 (D. Nev. Dec.
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22, 2025) (finding that the fact that a petitioner had an interview with the Iranian consulate was
insufficient to establish that removal was likely in the reasonably foreseeable future because the
government’s continued good faith efforts toward removal does not establish that removal is
likely). Notably, the Federal Respondents, having been Ordered to provide two status reports,
have not presented any evidence suggesting that an interview with the Nigerian embassy ever
occurred and, if it did, what followed. Additionally, the Federal Respondents produced a
statement from Jose Ortez, an assistant field office director for ICE, that “ICE believes that there
is a significant likelihood of removal in the reasonably foreseeable future to Nigeria.” (Doc. 12-1
at 4). But a mere belief, without concrete evidence to support it, is also insufficient to carry the
Federal Respondents’ burden. See Kazemzadeh v. United States, Case No. 2:25-cv-01941-JAD-
NJK, 2026 WL 905755, at *3 (D. Nev. Apr. 1, 2026) (“But that conclusory statement,
unsupported by concrete facts demonstrating why ICE expects removal to occur, is insufficient
to carry the government’s burden.”). It is also difficult to take this assertion at face value when
ICE has represented since at least July 2025 that removal was significantly likely to occur in the
reasonably foreseeable future.
Federal Respondents have represented to the Court that Petitioner was scheduled to
depart “on a commercial flight to Nigeria before March 31, 2026.” (Doc. 18 at 1). However, as
the Federal Respondents acknowledge, “Petitioner was not removed at that time.” (Doc. 20 at 1).
Instead, the Federal Respondents represent that “Petitioner has been nominated for the next
charter flight,” which is “anticipated to be within the month.” (Id.). While this could indicate that
removal is likely to occur in the foreseeable future, I find that it does not for three reasons. First,
other than the unsupported assertions of their attorney, the Federal Respondents have submitted
no evidence that such removal efforts actually occurred. Bare assertions made by an attorney
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cannot support a finding that removal is likely to occur in the reasonably foreseeable future. See
United States v. Dixon, 137 F.4th 592, 604 (7th Cir. 2025) (“The unsupported assertions of
attorneys are not evidence…”); see also Aguilar, 2025 WL 3514282, at *6. Second, the Federal
Respondents have not produced any evidence that travel documents have been obtained, often a
prerequisite to board an international flight. Third, attempting to place Petitioner on an
international flight, without evidence that proper travel documents have been obtained, does not
establish that removal is likely to occur in the reasonably foreseeable future. See Jobe v. Acuna,
CIVIL ACTION No. 25-1391, 2026 WL 775928, at *3 (W.D. La. Mar. 3, 2026) (“Attempting to
place Petitioner on an international flight without a valid travel document or passport does not
reflect a genuine effort to remove him.”), report and recommendation adopted, 25-CV-1391,
2026 WL 772631, at (W.D. La. Mar. 18, 2026). Moreover, the fact that Petitioner was not
removed in March is evidence that supports an inference that his removal is unlikely to occur in
the reasonably foreseeable future. See id. And the Federal Respondents have not provided any
explanation as to why Petitioner was not removed in March, nor, in the two weeks since their
counsel reported he was nominated for a charter flight, Federal Respondents have provided not
further update indicating any progress toward removal in the reasonably foreseeable future.
Finally, the Federal Respondents have not presented any evidence suggesting that they
are searching for alternative countries for which to remove Petitioner. Without such evidence, I
cannot find that Petitioner’s removal is likely to occur in the reasonably foreseeable future. See
Villanueva v. Tate, 801 F.Supp.3d 689, 702 (S.D. Tex. 2025) (“Considering the government’s
past failure to identify a country willing to accept [Petitioner] and its current refusal to identify
any possible third country for [Petitioner’s] removal, the Court cannot say that his removal is
reasonably foreseeable.”).
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In short, I conclude that based on the record of this case, Federal Respondents have failed
to provide sufficient evidence that would support a finding that Petitioner is likely to be removed
in the reasonably foreseeable future.
D. 	The Court Should Decline to Address Petitioner’s Remaining Requests for Relief.
I recommend that the Court decline to address Petitioner’s remaining requests for relief.
In addition to challenging his continued and indefinite detention on substantive due process
grounds, Petitioner also challenges his detention on procedural due process grounds. And as part
of his procedural due process claim, Petitioner appears to be attacking his underlying order of
removal, as he contends that he was not given adequate notice “of the precise charge of
‘conspiracy’ under § 101(a)(43)(U) of the Act upon which [he] is deportable and the statutory
provision alleged to have been violated.” (Doc.1 at 3). However, a federal district court does not
have jurisdiction to review an attack, whether direct or indirect, on a final order of removal. See
Andoh v. Barr, 19 Civ. 8016 (PAE), 2019 WL 4511623, at * (S.D.N.Y. Sep. 18, 2019) (“[A]
district court does not have jurisdiction over claims that, directly or indirectly, challenge an
alien’s removal.”); see also Vernitus v. Acting Sec’y, Case No: 6:20-cv-1998-ACC-EJK, 2021
WL 9408910, at *3 (M.D. Fla. Feb. 25, 2021) (“Federal district courts do not have jurisdiction
over challenges against removal orders, regardless of whether such challenges are direct or
indirect.”). Thus, to the extent Petitioner attempts to bring a procedural due process claim
attacking his underlying order of removal, I recommend that the Court decline to address such a
claim due to lack of jurisdiction.
Additionally, with his procedural due process claim, Petitioner argues that he is entitled
to periodic review of his custody status and a bond hearing. (Doc. 2 at 11–18). However, given
that I recommend that Petitioner be released subject to an order of supervision, if the Court
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adopts my recommendation, it need not address these aspects of Petitioner’s procedural due
process claims because they would be moot. See Abdala v. I.N.S., 488 F.3d 1061, 1064 (9th Cir.
2007) (“Likewise, a petitioner’s release from detention under an order of supervision mooted his
challenge to the legality of his extended detention.” (quotations and brackets omitted)); see also
S. Utah Wilderness All. v. Smith, 110 F.3d 724, 727 (10th Cir. 1997) (“A federal court has no
power to give opinions upon moot questions or declare principles of law which cannot affect the
matter in issue in the case before it.”).
Further, Petitioner brings an Accardi doctrine claim, arguing that the Federal
Respondents failure “to follow its own regulation poses a high probability that the agency is not
acting in accordance” with the APA. (Doc. 1 at 3). However, it appears that Petitioner’s
requested relief for this claim is that he be granted a bond hearing or be released. (Id. at 8). Thus,
if the Court were to adopt my recommendation of releasing petitioner, it need not address this
claim as it would be moot. Smith, 110 F.3d at 727.
As part of his requested relief, Petitioner also requests that this Court “[e]njoin
Respondents in transferring or removing Petitioner outside the jurisdiction of the District of New
Mexico, specifically, from Otero County Processing Center, Chaparrel, New Mexico pending the
resolution of this petition.” (Doc. 1 at 8). This request will also be mooted if the Court accepts
my recommendation. See Smith, 110 F.3d at 727.
Finally, Petitioner requests that the Court “[e]nter preliminary and permanent relief
enjoining Respondents from further unlawful detention of Petitioner.” (Doc. 1 at 8). Generally,
to be granted a preliminary injunction, a party must prove: (1) he is substantially likely to
succeed on the merits; (2) that he will suffer irreparable injury if the Court denies injunctive
relief; (3) that his threatened injury outweighs the opposing party’s under the injunction; and (4)
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that the injunction is not adverse to the public interest. Free the Nipple-Fort Collins v. City of
Fort Collins, Colorado, 916 F.3d 792, 797 (10th Cir. 2019). The standard for permanent
injunctions is virtually identical. See Shaw v. Smith, 166 F.4th 61, 78 (10th Cir. 2026). However,
I recommend that the Court decline to address this issue because Petitioner has not advanced an
argument addressing any of the factors for preliminary or permanent injunctive relief. In making
an argument on an issue, “a party must offer some argument or development of its theory, cite
relevant precedents, and frame the issues for decision.” Hausknecht v. John Hancock Life Ins.
Co. of New York, 614 F.Supp.3d 168, 186 (E.D. Pa. 2022) (quotations and citation omitted).
Here, Petitioner failed to do any of this, and it is not the Court’s “role to craft arguments for the
parties.” Id. Accordingly, I recommend that the Court decline to address this aspect of
Petitioner’s requested relief.
C. 	Recommendation
I recommend that the Court find that Petitioner’s substantive due process rights are being
violated by his indefinite detention. I also recommend that the Court decline to address his
remaining requests for relief. Based on these recommended findings, I recommend that the
Court GRANT Petitioner’s Petition for a Writ of Habeas Corpus Under 28 U.S.C. § 2241 (Doc.
1). I also recommend that the Court order Petitioner’s immediate release subject to an order of
supervision.
____________________________________
KIRTAN KHALSA
UNITED STATES MAGISTRATE JUDGE
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THE PARTIES ARE FURTHER NOTIFIED THAT WITHIN 14 DAYS OF SERVICE of
a copy of these Proposed Findings and Recommended Disposition they may file written
objections with the Clerk of the District Court pursuant to 28 U.S.C. § 636(b)(1). Written
objections must be both timely and specific. United States v. One Parcel of Real Prop., With
Buildings, Appurtenances, Improvements, & Contents, Known as: 2121 E. 30th St., Tulsa,
Oklahoma, 73 F.3d 1057, 1060 (10th Cir. 1996). A party must file any objections with the
Clerk of the District Court within the fourteen-day period if that party wants to have
appellate review of the proposed findings and recommended disposition. Failure to file
timely and specific objections will result in waiver of de novo review by a district or
appellate court. In other words, if no objections are filed, no appellate review will be
allowed.
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