Case Name in Immigration Case - Unavailable

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UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Derick Aziwung,
Petitioner,
Case No. 26-cv-0325-SM-TSM
v. 	Opinion No. 2026 DNH 067
David Wesling, Boston Field
Office Director, U.S. Immigration
and Customs Enforcement and Removal
Operations (“ICE/ERO”); Antone Moniz,
Superintendent, Plymouth County
Correctional Facility; Todd Lyons,
Acting Director of U.S. Immigration
Customs Enforcement (“ICE”); Markwayne
Mullin, Secretary of the Department of
Homeland Security (“DHS”); U.S. Department
of Homeland Security; and Todd Blanche,
Acting Attorney General of the United States,
Respondents
O R D E R
Derick Aziwung, who has been detained by Immigration and
Customs Enforcement (“ICE”) since August 20, 2025, petitions the
court for an order directing the respondents to release him
immediately from ICE custody. 	See generally 28 U.S.C. § 2241.
The federal respondents object.
For the reasons discussed, Aziwung’s petition is
necessarily denied.
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Background
Aziwung is a native and citizen of Cameroon who is
currently detained by U.S. Immigration and Customs Enforcement
(ICE) at the Strafford County House of Corrections in Dover, New
Hampshire. 	Aziwung asserts that he was subjected to persecution
in Cameroon because he is an Anglophone — that is, a member of
the English-speaking minority. 	As a result of his Anglophone
status, Aziwung was threatened, arrested, detained, beaten, and
tortured.
Aziwung fled Cameroon, and entered the United States on
September 25, 2021, at the Mexican border. 	He was taken into
custody. 	He was served with an Order of Removal on October 21,
2021, and ordered to appear before the immigration court in
Elizabeth, New Jersey. 	On November 18, 2021, Aziwung was
paroled into the United States. 	He applied for asylum on
November 24, 2021.
Nearly four years later, on August 20, 2025, Aziwung was
arrested for driving under the influence of alcohol. 	He pled
not guilty, and was released on his own recognizance. 	That DUI
charge remains pending. 	After Aziwung was released pending
trial, he was immediately detained by ICE agents at the Lynn
District Courthouse and taken into immigration custody.
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On November 3, 2025, following a hearing before an
immigration judge, Aziwung’s application for asylum was denied.
However, the immigration judge granted Withholding of Removal to
Cameroon under Section 241(b)(3) of the Immigration and
Nationality Act, 8 U.S.C. § 1231(b)(3). 	Aziwung promptly
appealed the denial of his application for asylum. 	That appeal
is currently pending before the Board of Immigration Appeals
(BIA).
Aziwung has remained in detention since August 20, 2025.
He was originally held at the Plymouth County Correctional
Facility in Plymouth, Massachusetts, but was subsequently
transferred to the Federal Correctional Institution in Berlin,
New Hampshire. 	He challenges his continued detention on
statutory and constitutional grounds, arguing that it violates
the framework described by the Supreme Court in Zadvydas v.
Davis, 533 U.S. 678 (2001), as well as the Due Process Clause of
the Fifth Amendment.
Discussion
As a preliminary matter, the parties dispute the statutory
basis for Aziwung’s detention. 	Aziwung says that he is detained
pursuant to either 8 U.S.C. § 1231(a)(6) or 8 U.S.C. § 1226(b),
while the government asserts his detention is governed by
8 U.S.C. § 1225(b)(2). 	The statutory basis for his detention
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matters because he contends that his continued detention
violates the Supreme Court’s interpretation of 8 U.S.C.
§ 1231(a)(6) in Zadvydas v. Davis, 533 U.S. 678, 690 (2001).
1. 	Applicability of Section 1231(a)(6) and Zadvydas v. Davis
In Zadvydas, the Supreme Court considered whether Section
1231(a)(6) “authorizes the Attorney General to detain a
removable alien indefinitely beyond the removal period or only
for a period reasonably necessary to secure the alien’s
removal.” 	Id. at 682. 	The Court determined that, to avoid the
“serious constitutional concerns” associated with the indefinite
detention of noncitizens once removal proceedings have come to
an end, 8 U.S.C. § 1231(a)(6) includes an “implicit ‘reasonable
time’ limitation.” 	Id. 	“As the Court explained the new
limitation, if a noncitizen has been detained for more than six
months, and he provides ‘good reason to believe that there is no
significant likelihood of removal in the foreseeable future,’
then the noncitizen must be released under supervision unless
the government can rebut the noncitizen’s showing.” 	G.P. v.
Garland, No. 1:23-CV-322-PB, 2024 WL 328435, at *3 (D.N.H. Jan.
29, 2024) (summarizing and quoting Zadvydas, 533 U.S. at 701).
Section 1231(a)(6) is not applicable to a petitioner’s
detention unless and until the entry of a final order of
removal, however. 	See 8 U.S.C. § 1231 (a)(1)(B) (stating
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“removal period” does not begin until latest of three events:
(1) the “date the order of removal becomes administratively
final;” (2) if the removal order is judicially reviewed and the
court orders a stay of removal, the date of the court’s final
order; and (3) if the alien is detained or confined for a
purpose other than immigration proceedings, the date the
noncitizen is released). 	See also Johnson v. Guzman Chavez, 594
U.S. 523, 534–35 (2021) (stating that a noncitizen must both be
“ordered removed,” and his removal order must be
“administratively final” for 8 U.S.C. § 1231(a)(1) to apply).
The applicable regulations advise that an immigration judge’s
order of removal becomes final:
(a) Upon dismissal of an appeal by the Board of
Immigration Appeals;
(b) Upon waiver of appeal by the respondent;
(c) Upon expiration of the time allotted for an appeal
if the respondent does not file an appeal within that
time;
(d) If certified to the Board or Attorney General,
upon the date of the subsequent decision ordering
removal;
(e) If an immigration judge orders an alien removed in
the alien’s absence, immediately upon entry of such
order; or
(f) If an immigration judge issues an alternate order
of removal in connection with a grant of voluntary
departure, upon overstay of the voluntary departure
period, or upon the failure to post a required
voluntary departure bond within 5 business days.
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8 C.F.R. § 1241.1(c). 	See also Riley v. Bondi, 606 U.S. 259,
267 (2025) (“An order of removal becomes final at the earlier of
two points: (1) ‘a determination by the [BIA] affirming such
order,’ or (2) ‘the expiration of the period in which the alien
is permitted to’ petition the BIA for review of the order.”)
(quoting 8 U.S.C. § 1101(a)(47)(B)). 	As previously stated,
Aziwung’s appeal is currently pending before the Board of
Immigration Appeals. 	His removal order is therefore not yet
final. 	Section 1231(a)(6) is inapplicable.
Aziwung argues that Zadvydas nevertheless applies because
his removal is not reasonably foreseeable. 	That is, he says,
there is no significant likelihood of his removal in the
foreseeable future because: (1) he was granted withholding of
removal to Cameroon, and cannot be deported to his home country;
and (2) the BIA is currently considering his appeal. 	Aziwung
marshals data from the American Immigration Council which
discloses that, in 2017, only 21 individuals were removed to a
third country (i.e., not their country of origin), or 1.6
percent of the 1,274 individuals that had been granted
withholding of removal that year. 	See Document No. 11 at
Exhibit 1. 	Thus, Aziwung argues, statistically, his deportation
to a third country is highly unlikely.
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Our court of appeals found a similar argument unavailing in
G.P. v. Garland, 103 F.4th 898, 901-02 (1st Cir. 2024). 	In
G.P., the noncitizen pursuing withholding of removal had been
detained for nearly four years while his case proceeded through
various appeals, and contended that there was “no significant
likelihood” of his removable in the foreseeable future. 	Id. at
899. 	Despite the length of G.P.’s detention, the First Circuit
distinguished his circumstances from those in Zadvydas, writing:
G.P. . . . has not exhausted his administrative
remedies. 	Rather, he is being detained because his CAT
proceedings remain pending. 	While we acknowledge that
the length of those proceedings now well surpasses the
presumptively reasonable six-month post-removal period
set out in Zadvydas, there is no indication that they
have dragged on because of bad faith or undue delay by
the agency. 	Furthermore, G.P. does not dispute that,
if he is ultimately denied relief, the government will
be able to move forward with removing him for a second
time to the Dominican Republic. 	There thus appears to
be little chance of a removable-but-unremovable limbo
for him. 	See id. at 697 (“[P]ost-removal-period
detention, unlike detention pending a determination of
removability or during the subsequent 90-day removal
period, has no obvious termination point.” (emphasis
added)). 	Instead, once G.P.'s current withholding-only
proceedings end, he will either be removed to the
Dominican Republic or the government will have to begin
the process of finding a different country to accept
him. 	Under the present circumstances then, he has
failed to show that there is “no significant likelihood
of [his] removal in the reasonably foreseeable future.”
[cite source]
G.P. v. Garland, 103 F.4th 898, 902 (1st Cir. 2024).
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Aziwung’s argument is unavailing for similar reasons. 	As
in G.P., Aziwung’s proceedings “will eventually conclude, after
which he will either be released, removed to [Cameroon], or
removed to a third county.” 	Rosales-Navares v. FCI Berlin,
Warden, et al., No. 1:26-CV-232-PB-AJ, 2026 WL 1133463, at *3
(D.N.H. Apr. 27, 2026) (citing G.P., 103 F.4th at 901-02).
Accordingly, he fails to demonstrate that there is no
significant likelihood of his removal in the foreseeable future.
Zadvydas, 533 U.S. at 701.
For all the above reasons, Aziwung is not eligible for
immediate release under Zadvydas.
2. 	Due Process Violation
Aziwung also argues that his prolonged and indefinite
detention is violative of his due process rights. 	The
government responds by noting that the Supreme Court has
consistently upheld the constitutionality of detention during
deportation proceedings like Aziwung’s. 	And, respondents argue,
the only potential remedy currently available to Aziwung is a
bond hearing, which Aziwung has already received. 	At that bond
hearing, the immigration judge determined that Aziwung’s
continued detention is justified because he was adjudged a
danger to the community. 	Aziwung failed to timely appeal that
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decision.1 	For all those reasons, respondents say, Aziwung’s
petition should be denied.
In response, Aziwung insists he is not seeking a bond
hearing, nor does he seek to appeal the IJ’s bond hearing
decision. 	See Document No. 11 at 10-11. 	Instead, he insists
that, because the IJ granted Withholding of Removal to Cameroon,
he is eligible for release. 	Aziwung relies on German Santos v.
Warden Pike Cnty. Corr. Facility, 965 F.3d 203 (3d Cir. 2020), a
decision from the Court of Appeals for the Third Circuit in
which the petitioner was detained pursuant to Section 1226(c).
He argued that his detention for over two years was
1 	In recent decisions, district courts in our circuit have
occasionally waived the exhaustion requirement for an
immigration judge’s denial of bond. 	See e.g., Lopez Flores v.
Brackett, et al., No. 1:26-CV-94-PB-TSM, 2026 WL 1179959, at *3
(D.N.H. Apr. 30, 2026) (finding noncitizen not required to
exhaust administrative remedies: “the sole basis [for] . . .
continued detention is the result of the bond hearing challenged
here, [and] his weighty interest in his own liberty outweighs
the government's ‘institutional interest’ in having the BIA take
the first pass at review.”) (quoting Anversa v. Partners
Healthcare System, Inc., 835 F.3d 167, 176 (1st Cir. 2016)
(further quotations omitted). 	See also Makuraza v. Wesling, et
al., No. 1:26-CV-122-JL-AJ, 2026 WL 1068066, at *2 (D.N.H. Apr.
20, 2026) (“Petitioner's case warrants waiver of exhaustion
under that standard. 	The petitioner is suffering irreparable
harm in the form of loss of liberty while detained.”); Ganzhi v.
Moniz, et al., No. 26-CV-11478-PBS, 2026 WL 1194941, at *1 (D.
Mass. May 1, 2026) (“the Court holds that Petitioner need not
exhaust an appeal to the BIA on his due process challenge given
the irreparable harm caused by his allegedly unlawful and
ongoing detention”) (collecting cases).
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unreasonable, and, because his removal proceedings were likely
to continue for several more months, there was no end to his
detention in sight. 	Id. at 208. 	The Third Circuit allowed the
petitioner to challenge his detention under the Due Process
Clause, and identified four “nonexhaustive” factors for courts
to consider when reviewing challenges to the constitutionality
of continued detention under Section 1226(c): (1) duration of
detention; (2) whether the detention is likely to continue; (3)
“reasons for the delay, such as a detainee’s request for
continuances;” and (4) whether conditions of confinement are
“meaningfully different” from criminal punishment. 	Id. at 211.
After considering those factors, the Third Circuit determined
that the petitioner’s detention had “grown unreasonable,” and
the government was required to hold a bond hearing and justify
his continued detention. 	Id. at 214.
German-Santos provides a helpful framework for considering
claims of prolonged detention. 	That framework has been adopted
in several cases in this district in the context of prolonged
detention claims. 	See Rosales-Navares, 2026 WL 1133463, at *4;
Fils-Aime v. FCI Berlin, Warden, 808 F. Supp. 3d 218, 224-26
(D.N.H. 2025); K-S- v. Warden, FCI-Berlin, No. 25-CV-288-SE,
2025 WL 3671774, at *4-5 (D.N.H. Dec. 17, 2025); Beneche v. FCI
Berlin Warden, No. 26-CV-203-LM-TSM, 2026 WL 1031050, at *3-5
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(D.N.H. Apr. 16, 2026). 	But, the remedy sought (and granted) in
German-Santos was a bond hearing before an immigration judge,
which Aziwung insists he is not seeking. 	See Document No. 11 at
11.
Precedent is clear that the “remedy for a prolonged
detention is a bond hearing before an immigration judge at which
the government bears the burden of proving that the alien should
not be released on bond.” 	Fils-Aime, 808 F. Supp. 3d at 226
(cleaned up) (quotation omitted). 	See also Rosales-Navares,
2026 WL 1133463, at *6 (“the appropriate remedy for a prolonged
detention is a bond hearing before an immigration judge”)
(internal quotations omitted). 	When Aziwung “appeared before an
Immigration Judge who reviewed and heard evidence, held the
Government to its burden of proof, and found by clear and
convincing evidence that [he] is a danger to the community,” he
received constitutionally required due process. 	O’leary v.
Hyde, No. 2:26-CV-00036-JAW, 2026 WL 686295, at *6 (D. Me. Mar.
11, 2026).2
2 	Of course, federal immigration officials must comply with
due process principles in denying a noncitizen’s request for
release on bond. 	See, e.g., Flores v. Brackett, 2026 WL
1179959, at *2 (“it is well established in the First Circuit
that the government does not have ‘discretion’ to exceed the
‘constitutional restraints’ on its detention authority. 	Rather,
the government's decision ‘in each case to grant or deny bond’
is only unreviewable under § 1226(e) to the extent that it falls
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Aziwung received the bond hearing that due process
requires, and there is no suggestion or argument in the record
that his bond hearing failed to satisfy the minimum requirements
of due process. 	Aziwung’s due process claim is therefore
necessarily denied.
Conclusion
While sympathetic to the fact that Aziwung has spent nearly
nine months in ICE detention, the court also notes that
Aziwung’s bond hearing occurred in September, 2025, prior to his
merits hearing in October, 2025, where the immigration judge
granted Withholding of Removal. 	Thus, the circumstances of
Aziwung’s confinement have changed since his earlier bond,
“within those limits” set by the Due Process Clause.”) (quoting
Hernandez-Lara v. Lyons], 10 F.4th 19, 33-34 (1st Cir. 2021));
see also Makuraza v. Wesling, 2026 WL 1068066, at *2 (“although
the court may not review the IJ's discretionary judgment, the IJ
does not have discretion to fail to apply the burden of proof
that due process requires.”) (quoting Mayancela Mayancela v. FCI
Berlin, Warden, No. 25-CV-348-LM-TSM, 2025 WL 3215638 at *5
(D.N.H. Nov. 18, 2025)) (cleaned up).
But, Aziwung does not argue that the immigration judge’s
determination failed to comply with due process requirements,
nor is there any suggestion in the current record that officials
failed to apply those principles and the standard of review
mandated by Hernandez-Lara v. Lyons, 10 F.4th at 41. 	Nor does
Aziwung offer an explanation as to why he did not take advantage
of the additional layer of due process protection available to
him in the form of an appeal of the immigration judge’s denial.
Indeed, Aziwung’s petition does not mention his bond hearing at
all, except to state that he is not seeking a bond hearing.
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hearing, and he may well be entitled to a renewed individualized
bond hearing pursuant to Hernandez-Lara v. Lyons, 10 F.4th at
41, if he changes his mind and decides to seek such relief. 	The
petition for writ of habeas corpus directing his immediate
release is necessarily DENIED.
SO ORDERED.
____________________________
Steven J. McAuliffe
United States District Judge
June 5, 2026
cc: Counsel of Record
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