Case Name in Immigration Case - Unavailable

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
___________________________
ABAYOMI OKUPE,
Petitioner,
v. Case No. 2:26-cv-00255 KWR-SCY
TODD BLANCHE, Attorney General of the United States,
MARKWAYNE MULLIN, Secretary of the Department
of Homeland Security, TODD M. LYONS, Acting Director of
U.S. Immigration and Customs Enforcement,
MARY DE ANDA-YBARRA, Field Office Director
for Detention and Removal, and
DORA CASTRO, Warden of Otero County Processing Center,
Respondents.
ORDER DENYING HABEAS PETITION
THIS MATTER comes before the Court on Petitioner’s Petition for Writ of Habeas
Corpus (Doc. 1). Petitioner is subject to a final order of removal and is in detention pending his
removal from the country under 8 U.S.C. § 1231. Petitioner asserts there is not a significant
likelihood of his removal in the reasonably foreseeable future, and he should be released under
Zadvydas v. Davis, 533 U.S. 678 (2001).
The Court concludes that Petitioner is not entitled to release because he is detained with a
significant likelihood of removal in the reasonably foreseeable future. Therefore, having reviewed
the parties’ pleadings, briefing, and the relevant law, the Court finds that the Petition is not
well-taken and therefore is DENIED.
BACKGROUND
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Petitioner is a citizen of Nigeria. Doc. 8-1 at ¶ 5. On or about August 8, 2012, Petitioner
entered the United States on a non-immigrant student visa. Id. at ¶ 6. His status ended upon the
completion of his program on May 16, 2017. Id. ¶ 7. However, Petitioner failed to depart from
the country. Id. ¶ 8.
On June 13, 2019, Petitioner was arrested by ICE and processed for removal proceedings.
On December 2, 2019, he was granted release under a bond. Id. ¶ 10. On July 31, 2024, Petitioner
was ordered removed by an immigration judge. Id. ¶ 11. Petitioner appealed that removal order.
Id. On June 25, 2025 Petitioner was again arrested by DHS. Id. ¶ 15.
On July 17, 2025, an immigration judge denied Petitioner bond. Id. ¶ 18. On July 28,
2025, the BIA granted Petitioner’s motion to withdraw the appeal of the removal order. Id. ¶ 19.
Thus, Petitioner’s removal was final on July 28, 2025.
On August 14, 2025, Respondents requested travel documents from the Nigerian embassy.
Id. ¶ 22. On January 20, 2026, Petitioner had an interview with the Nigerian consulate. Id. ¶ 28.
Nigeria approved his removal. Id. at ¶ 29.1 Respondents set a tentative date of departure for March
17, 2026.
LEGAL STANDARD
Petitioner seeks release from detention under a habeas statute, 28 U.S.C. § 2241. The
Constitution guarantees that “absent suspension, the writ of habeas corpus remains 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). A federal court may grant a writ of habeas corpus to a petitioner
who demonstrates that he is in custody in violation of the Constitution or federal law. 28 U.S.C. §
1 The paragraphs in the Corona Declaration are misnumbered. The Court cites to the misnumbered
paragraphs.
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2241(c)(3). “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).
DISCUSSION
Petitioner asserts that his removal from the country is not significantly likely in the
reasonably foreseeable future in violation of Zadvydas. As explained below, Petitioner did not
make an initial showing that his removal was not significantly likely in the reasonably foreseeable
future. Even assuming the burden shifted to Respondents to show that his removal is significantly
likely in the reasonably foreseeable future, Respondents made such a showing, and therefore
Petitioner is not entitled to release under Zadvydas.
An immigration detainee “in custody in violation of the Constitution or laws or treaties of
the United States” may seek habeas relief. 28 U.S.C. § 2241(c)(3); see also Zadvydas v. Davis,
533 U.S. 678 (2001). Pursuant to the Immigration and Nationality Act, the Respondents must
remove a noncitizen within a 90-day removal period. 8 U.S.C. § 1231(a)(1)(A). During the 90-day
removal period, the noncitizen must be detained. Id. § 1231(a)(2). The removal period begins when
the removal order “becomes administratively final.” Id. § 1231(a)(1)(B)(i).
Upon expiration of the initial removal period, the Respondents may continue to detain the
noncitizen, but not indefinitely. Id. § 1231(a)(6); Zadvydas, 533 U.S. at 699. Continued detention
for six months is “presumptively reasonable.” Zadvydas, 533 U.S. at 701. After six months, if the
noncitizen provides “good reason to believe that there is no significant likelihood of removal in
the reasonably foreseeable future,” the Respondents must then rebut the noncitizen’s showing with
evidence. Id.
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Here, Petitioner’s removal order became final on July 28, 2025, when his appeal was
withdrawn and the immigration judge’s removal order was affirmed. Petitioner asserts that more
than six months have passed since his removal order became final on July 28, 2025. Doc. 1 at 6.
But he does not cite in his Petition any other facts establishing a good reason to believe that there
is not a significant likelihood of removal in the reasonably foreseeable future. Thus, Petitioner has
not shown good reason to believe there is not a significant likelihood of removal in the reasonably
foreseeable future.
Alternatively, assuming Petitioner carried his initial burden, Respondents have shown that
his removal is significantly likely in the reasonably forseeable future. 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 shifts to the respondents to rebut the showing.
Zadvydas, 533 U.S. at 701. Respondents must provide “evidence” in rebuttal. See id. In response,
the Federal Respondents asserted that on August 14, 2025, Respondents requested travel
documents from the Nigerian embassy. Id. ¶ 22. On January 20, 2026, Petitioner had an interview
with the Nigerian consulate. Nigeria approved his removal. Id. at ¶¶ 28, 29. Respondents set a
tentative date of departure for March 17, 2026. Because Nigeria has agreed to accept Petitioner
and his removal has tentative dates of departure set, the Court finds that Respondents have shown
his removal is significantly likely in the reasonably foreseeable future.
CONCLUSION
As explained above, the Court concludes that Petitioner is not entitled to release under
Zadvydas, as he is detained with a significant likelihood of removal in the reasonably foreseeable
future. Therefore, the Petition is denied. The Court will enter a separate judgment.
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IT IS THEREFORE ORDERED that Petitioner’s Petition (Doc. 1) is hereby DENIED
for the reasons described in this Order.
____________/S/___________________
KEA W. RIGGS
UNITED STATES DISTRICT JUDGE
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