Case Name in Immigration Case - Unavailable

UNITED STATES DISTRICT COURT
DISTRICT OF NEW MEXICO
XIAOJIAN GE,
Petitioner,
v. 	Civ. No. 26-48 JB/GJF
GEORGE DEDOS, Warden, Torrance
County Detention Center; MARY DE
ANDA-YBARRA, Acting El Paso Field
Office Director, U.S. Immigration and
Customs Enforcement; MARKWAYNE
MULLIN, Secretary of the U.S. Department
of Homeland Security; and TODD
BLANCHE, Acting Attorney General of
the United States, in their official capacities,
Respondents.
PROPOSED FINDINGS AND RECOMMENDED DISPOSITION ON FIRST AMENDED
PETITION FOR WRIT OF HABEAS CORPUS (DKT. NO. 20), MOTION TO DISMISS
FIRST AMENDED PETITION FOR WRIT OF HABEAS CORPUS (DKT. NO. 21),
PETITION FOR WRIT OF HABEAS CORPUS (DKT. NO. 1), AND MOTION TO
DISMISS PETITION FOR WRIT OF HABEAS CORPUS (DKT. NO. 8)1
THIS MATTER is before the Court on the Petition for Writ of Habeas Corpus (Dkt. No.
1) (“Petition”) and the First Amended Petition for Writ of Habeas Corpus (Dkt. No. 20)
(“Amended Petition”) filed by Petitioner Xiaojian Ge (“Petitioner” or “Petitioner”). Petitioner,
who is subject to a final order of removal, seeks release from his prolonged detention under the
Due Process Clause and Zadvydas v. Davis, 533 U.S. 678 (2001). The Federal Respondents, Mary
De Anda-Ybarra, Markwayne Mullin, and Todd Blanche, filed a Motion to Dismiss Petition for
Writ of Habeas Corpus (Dkt. No. 8) (“Motion to Dismiss Petition”) and Motion to Dismiss
Petitioner’s First Amended Petition for Writ of Habeas Corpus (Dkt. No. 21) (“Motion to Dismiss
1 The undersigned files this Proposed Findings and Recommended Disposition (“PFRD”) pursuant to the presiding
judge’s Order of Reference (Dkt. No. 3).
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Amended Petition”). Respondent George Dedos has not filed a response to either the Petition or
the Amended Petition, but the Federal Respondents represented that all their arguments apply with
equal force to the Warden. See Mot. to Dismiss Pet. 1 n.1, Dkt. No. 8. Hereinafter, the Court will
refer to them collectively as “Respondents.”
This matter initially came to the Court on the Petition. After Respondents filed their Motion
to Dismiss Petition, Petitioner responded in opposition to that motion. Resp., Dkt. No. 9. This
Court set the matter for an evidentiary hearing. Order, Dkt. No. 13. Prior to the hearing,
Respondents lodged additional evidence, including two videos showing Petitioner intentionally
slamming his arm into a door on March 23, 2026, causing him to miss his scheduled removal flight
to China. See Gov.’s Ex. 1 & 2, Dkt. No. 14 (“Videos”); Trujillo Decl. ¶¶ 27-29, Dkt. No. 15-1.
The Court ordered the parties to inform the Court whether it should vacate the hearing, whether it
could decide the Petition on the then-current record, and whether Petitioner wished to amend or
withdraw his habeas corpus petition. Order, Dkt. No. 16. In response, Petitioner asked the Court
to vacate the evidentiary hearing and allow a reasonable opportunity to amend his Petition. Notice,
Dkt. No. 17. The Court granted the requests. Order, Dkt. No. 19.
On April 15, 2026, Petitioner filed his Amended Petition. Am. Pet., Dkt. No. 20. The filing
of the Amended Petition superseded the Petition, and thus the original Petition should be denied
as moot. See Washer v. Bullitt County, 110 U.S. 558, 562 (1884) (“When a petition is amended by
leave of the court, the cause proceeds on the amended petition.”); Burkhalter v. Patton, No. 14-
CV-685-JED-FHM, 2015 WL 4387974, at *1 (N.D. Okla. July 15, 2015) ("Because the amended
petition replaces and supersedes the original petition, the original petition shall be declared
moot.”). Respondents filed their Motion to Dismiss Amended Petition on April 29, 2026. Mot. to
Dismiss Am. Pet., Dkt. No. 21. Petitioner did not respond to the Motion to Dismiss Amended
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Petition and the deadline for doing so has expired. This matter is ready for decision. Based on the
record and material uncontested facts, the Court finds that an evidentiary hearing is not necessary.
Having reviewed the Petition, the Motion to Dismiss Petition, the Amended Petition, the
Motion to Dismiss Amended Petition, the evidence, the law, and the arguments of counsel, the
Court recommends that the Petition and Motion to Dismiss Petition be denied as moot, the Motion
to Dismiss Amended Petition be granted, and the Amended Petition be denied on the merits.
I. 	FACTUAL BACKGROUND
Petitioner Xiaojian Ge is a national and citizen of the People’s Republic of China. Am.
Petition ¶ 1, 20, Dkt. No. 20; Shaw Decl. ¶ 5, Dkt. No. 8-1. Petitioner was admitted to and entered
the United States in 2009. See Am. Petition ¶ 20, Dkt. No. 20; Shaw Decl. ¶ 5, Dkt. No. 8-1.2
On April 16, 2012, Petitioner was convicted in federal court in the Southern District of
Florida for trafficking in counterfeit goods in violation of 8 U.S.C. § 2320(a)(1). Am. Pet. ¶ 21,
Dkt. No. 20; Pet’r’s Ex. 1, Dkt. No. 1-2.3 He received a time-served sentence, a $1,000 fine, and
three years of supervised release. Pet’r’s Ex. 1, Dkt. No. 1-2. Following the completion of his
supervised release, on November 21, 2012, Petitioner was served with a Notice to Appear and
placed in removal proceedings. See Am. Pet. ¶ 21, Dkt. No. 20; Shaw Decl. ¶ 9, Dkt. No. 8-1. He
filed for asylum. See Am. Pet. ¶ 21, Dkt. No. 20. On February 13, 2017, an immigration judge
denied his application for asylum, and he was ordered removed to China. Am. Pet. ¶ 21, Dkt. No.
20; Pet’r’s Ex. 2, Dkt. No. 1-3 at 2; Shaw Decl. ¶ 10, Dkt. No. 8-1. He appealed to the Board of
2 Although the parties dispute Petitioner’s status at entry, the Court need not resolve this factual dispute because it is
not relevant to the issues before it.
3 Respondents stated that he was convicted of trafficking in counterfeit goods in excess of one million dollars. Mot.
to Dismiss Am. Pet. 2, Dkt. No. 21. Petitioner disputes this fact, asserting his conviction was under § 2320(a)(1),
which does not require a specific amount of monetary loss. Reply 4, Dkt. No. 9. The Court need not resolve this factual
question because it too is immaterial to the legal issues raised in the Amended Petition and motion to dismiss.
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Immigration Appeals (“BIA”), which denied his appeal on March 27, 2018. Am. Pet. ¶ 21, Dkt.
No. 20; Pet’r’s Ex. 2, Dkt. No. 1-3 at 3; Shaw Decl. ¶¶ 11-12, Dkt. No. 8-1.
Since 2014, Petitioner lived in Florida with his wife and children. Am. Pet. ¶ 22, Dkt. No.
20; Pet’r’s Ex. 4, Dkt. No. 1-4; Ge Decl. ¶ 3, Dkt. No. 9-1. On July 8, 2025, Immigration and
Customs Enforcement (“ICE”) agents arrested Petitioner. See Am. Pet., ¶¶ 15, 23, Dkt. No. 20;
Shaw Decl. ¶¶ 4, 13, Dkt. No. 8-1. Petitioner was initially taken to the immigration detention
facility in Florida known as “Alligator Alcatraz.” Am. Pet. ¶ 23, Dkt. No. 1. Following numerous
transfers, he was moved to Torrance County Detention Facility in New Mexico, where he was held
at the time he filed his initial Petition. Pet. ¶ 24, Dkt. No. 1; Am. Pet. ¶ 24, Dkt. No. 20; Shaw
Decl. ¶ 3, Dkt. No. 8-1.
On September 18, 2025, Petitioner was asked for travel documents to facilitate his return
to China. Shaw Decl. ¶ 14, Dkt. No. 8-1.4 On December 5, 2025, the travel document package was
sent to the Chinese attache. Id. ¶ 19. On March 9, 2026, ICE obtained a Permit for Entry issued by
the Embassy of the People’s Republic of China, permitting Petitioner’s return to China within a
three-month period from the date of its issuance. See Gov.’s Ex. 2, Dkt. No. 21-2; Sanchez Decl.
¶ 9, Dkt. No. 21-1; Trujillo Decl. ¶ 23, Dkt. No. 15-1.
Petitioner was scheduled on a charter flight for removal to China. Trujillo Decl. ¶ 24, Dkt.
No. 15-1. Due to diplomatic relations and limited flight availability, scheduling DHS flights to
China is rare and difficult. Id. ¶ 31. On March 23, 2026, Petitioner, who was then detained in
4 Another factual dispute arises at this point in the narrative. According to Respondents, Petitioner refused to fill out
the required documentation and to comply with filling out the travel document request. See Shaw Decl. ¶¶ 14-18, Dkt.
No. 8-1. On the other hand, Petitioner avers that he does not understand, speak, or write English very well, and he
needs someone to translate legal or complex documents. Ge Decl. ¶ 7, Dkt. No. 9-1. Although ICE officers approached
him several times to try to get him to sign documents, they never had a Mandarin interpreter translate the documents.
Id. ¶ 8. Petitioner informed them he would sign documents explained by his attorney. Id. Although these facts were
relevant to the initial Petition, the Court recommends finding that changed circumstances have rendered them not
essential to resolve the issues set forth in the Amended Petition based on the uncontested facts surrounding
Respondents’ subsequent receipt of travel documentation and their attempts to remove Petitioner three separate times.
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Louisiana, intentionally and repeatedly slammed his arm in a door at a detention facility, with the
resulting injuries preventing him from boarding his flight to China and his removal from the United
States. See Videos, Dkt. No. 14; Trujillo Decl. ¶¶ 27-29, Dkt. No. 15-1.
ERO New Orleans transferred Petitioner to El Paso, Texas. Trujillo Decl. ¶ 30, Dkt. No.
15-1. On April 13, 2026, ERO El Paso attempted to remove Petitioner a second time to China via
a commercial air flight, but Petitioner refused to proceed inside the El Paso International Airport
for check-in, again preventing his removal from the United States. Sanchez Decl. ¶ 9, Dkt. No. 21-
1. Three days later, ERO El Paso tried to remove Petitioner a third time to China via another
commercial air flight. Id. ¶ 12. Escorting officers attempted multiple times to explain and advise
Petitioner of his immigration and removal process to China using Mandarin interpreter language
services via phone. Id. Petitioner refused to exit the transport van and said he would not go inside
the airport, which again thwarted his removal. Id. He is currently admitted to Rio Vista Behavioral
Health in El Paso. Id. ¶ 5. Petitioner is pending removal to China and ERO El Paso is preparing
travel arrangements for a fourth removal attempt to China. Id. ¶ 15. Petitioner’s temporary travel
document expires in June, so if he is not removed in June, his detention will be extended while
ERO repeats the process of obtaining the necessary travel documents from China. Id. ¶ 17.
II. 	PROCEDURAL HISTORY
On January 9, 2026, Petitioner filed his Petition under 28 U.S.C. § 2241, the Declaratory
Judgment Act, 28 U.S.C. § 2201, the Administrative Procedure Act (“APA”), and the All Writs
Act, 28 U.S.C. § 1651. See Pet. ¶¶ 7-10, Dkt. No. 1. His Petition contains one count for unlawful
prolonged detention in violation of his substantive due process rights based on Zadvydas. Id. ¶¶
36-39.
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Respondents filed their Motion to Dismiss Petition on February 10, 2026. They raise five
main arguments: (1) Petitioner failed to exhaust administrative remedies under § 241.13
procedures; (2) 8 U.S.C. § 1252(g) and § 1252(b)(9) strip this Court of jurisdiction over the Petition
challenging the execution of his removal order; (3) § 706(2)(A) and § 1252(a)(2)(B)(ii) strip this
Court of jurisdiction to review his APA claim; (4) Petitioner has not met his burden to show
unconstitutionally prolonged detention, as he has not shown good reason to believe there is no
significant likelihood of removal in the reasonably foreseeable future; and (5) the Court should not
order immediate release or his other requested remedies. Mot. to Dismiss Pet., Dkt. No. 8.
Petitioner responded to the motion, asserting that he cooperated with ICE requests to obtain travel
documents, that Respondents never conducted the requisite custody review or provided him with
the required notice or process outlined in 8 C.F.R. § 241.4, and that this Court has jurisdiction. See
Resp., Dkt. No. 9.
In the Amended Petition, Petitioner asserts two claims for relief. Am. Pet. ¶¶ 46-52, Dkt.
No. 20. He again brings a claim for unlawful prolonged detention under Zadvydas. Id. ¶¶ 46-49.
Petitioner, who has now been detained for over nine months, argues that his detention exceeds the
presumptive six-month reasonable period of time to effect his removal. Id. ¶¶ 41-49. He asserts he
is neither a flight risk nor danger to the community and should be released because there is no
significant likelihood of legitimate, lawful removal in the near future. See id. ¶¶ 25, 48. Petitioner
added to his Amended Petition a claim for violation of due process under the Fifth Amendment
based on Respondents’ refusal to provide Petitioner or counsel evidence of authorization or travel
documentation from the Chinese government that would lawfully allow his entry back into China.
Id. ¶¶ 40, 50-52. He suggests that Respondents do not possess legitimate travel documents for him
to return to China with the permission of the Chinese government. Id. ¶¶ 51-52. According to
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Petitioner, Respondents’ continued refusal to provide the documentation and their inability to
remove him in a lawful manner violates his due process rights. Id.
Respondents moved to dismiss the Amended Petition. Mot. to Dismiss Am. Pet., Dkt. No.
21. Their brief raises the same legal arguments as in their original motion to dismiss, although they
updated the facts and incorporated those updates into their legal arguments. See id. Petitioner did
not file a response.
III. 	LEGAL BACKGROUND
When an immigration judge decides that a noncitizen is inadmissible or deportable and not
entitled to any of the relief or protection that he requested, the immigration judge will issue an
order of removal. Johnson v. Guzman Chavez, 594 U.S. 523, 528 (2021) (citing 8 U. S. C. §
1229a(c)(5)). When the removal order becomes final, the noncitizen’s detention shifts to 8 U.S.C.
§ 1231. See id.
A. Section 1231 of the Immigration and Nationality Act
The Immigration and Nationality Act (“INA”) requires the Government to remove a
noncitizen subject to a final order of removal within 90 days from the date the removal order
becomes administratively final. 8 U.S.C. § 1231(a)(1)(A). It becomes “administratively final”
when the order has been affirmed by the BIA or the time for seeking review has expired, whichever
is earlier. See 8 U.S.C. § 1101(a)(47)(B); Riley v. Bondi, 606 U.S. 259, 267 (2025). During the
removal period, detention is mandatory. See 8 U.S.C. § 1231(a)(2)(A).
At the end of 90 days, the noncitizen’s detention may continue where the Attorney General
determines the alien “to be a risk to the community or unlikely to comply with the order of
removal.” Id. § 1231(a)(6). “The removal period shall be extended beyond a period of 90 days and
the alien may remain in detention during such extended period if the alien fails or refuses to make
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timely application in good faith for travel or other documents necessary to the alien's departure or
conspires or acts to prevent the alien's removal subject to an order of removal.” Id. § 1231(a)(1)(C).
B. Due Process Clause and Zadvydas
The Fifth Amendment's Due Process Clause prohibits the federal 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. Immigration proceedings are civil in nature, and as such, the Government’s interests
are non-punitive, such as ensuring the appearance of an alien at future immigration proceedings
and protecting the community from danger. Id. “[T]he Due Process Clause applies to all ‘persons’
within the United States, including aliens, whether their presence here is lawful, unlawful,
temporary, or permanent.” Id. at 693.
In Zadvydas, the Supreme Court considered whether § 1231(a)(6) authorized the Attorney
General to detain a removable alien, who was previously admitted to the United States but
subsequently ordered removed, indefinitely beyond the 90-day statutory removal period. Id. at 682.
The Supreme Court reasoned that a “statute permitting indefinite detention of an alien would raise
a serious constitutional problem.” Id. at 690. To avoid that problem, the court construed the
ambiguous statute to contain an implicit “reasonable time” limitation, such that an alien may only
be detained for a period reasonably necessary to secure the alien’s removal. Id. at 682, 699. Once
removal is not reasonably foreseeable, continued detention is unreasonable and no longer
authorized by statute. Id. at 699-700.
Continued detention for six months is “presumptively reasonable.” Id. at 701. But after six
months, if the noncitizen “provides good reason to believe that there is no significant likelihood
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of removal in the reasonably foreseeable future,” the Government must then respond with
sufficient evidence to rebut the noncitizen’s showing. Id. Given a sufficient showing by the
Government, the noncitizen may be confined “until it has been determined that there is no
significant likelihood of removal in the reasonably foreseeable future.” Id.
C. Section 241 regulations
Before the removal period expires, the immigration agency shall conduct a custody review
for an alien whose removal cannot be accomplished during the usual removal period. 8 C.F.R. §
241.4(k)(1)(i). After the removal period, further custody determinations are made by “the
Executive Associate Commissioner, acting through the [Headquarters Post-order Detention Unit
(HQPDU)].” Id. § 241.4(c)(2). A copy of the decision to detain the alien shall be provided to the
alien with reasons for the continued detention. Id. § 241.4(d). The alien is entitled to service of all
notices, decisions, and documents in connection with custody reviews. See id. § 241.4(d)(1)-(3).
In making a custody determination, HQPDU must consider the ability to obtain a travel
document for the alien. See 8 C.F.R. § 241.4(g)(3). The agency must take “appropriate steps to
secure travel documents for the alien both before and after the expiration of the removal period.”
Id. § 241.4(g)(2). If it is established that travel documents can be obtained for the alien, or they are
forthcoming, “the alien will not be released unless immediate removal is not practicable or in the
public interest.” Id. § 241.4(g)(3).
If an alien “fails or refuses to make timely application in good faith for travel or other
documents necessary to the alien's departure or conspires or acts to prevent the alien's removal
subject to an order of removal,” then the 90-day removal period shall be extended. Id. §
241.4(g)(1)(ii). See also 8 C.F.R. § 241.4(g)(5)(i) (“Release will be denied and the alien may
remain in detention if the alien fails or refuses to make timely application in good faith for travel
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documents necessary to the alien's departure or conspires or acts to prevent the alien's removal.”).
Section 241.4(g)(1)(ii) further explains:
The Service will provide such an alien with a Notice of Failure to Comply, as
provided in paragraph (g)(5) of this section, before the expiration of the removal
period. The removal period shall be extended until the alien demonstrates to the
Service that he or she has complied with the statutory obligations. Once the alien
has complied with his or her obligations under the law, the Service shall have a
reasonable period of time in order to effect the alien's removal.
Id. The Service’s failure to provide the requisite Notice of Failure to Comply within the 90-day
removal period “shall not have the effect of excusing the alien’s conduct.” Id. § 241.4(g)(5)(iv).
After Zadvydas, the Attorney General issued regulations to implement administrative
custody review procedures for aliens with final orders of removal who are detained beyond the
expiration of the removal period. See 8 C.F.R. § 241.13(a). Review occurs for such aliens when
“the alien has provided good reason to believe there is no significant likelihood of removal to the
country to which he or she was ordered removed, or to a third country, in the reasonably foreseeable
future.” Id. HQPDU continues the custody of such aliens while pursuing the procedures to
determine the likelihood of removal. Id. § 241.13(b)(2)(i). It has no obligation to release an alien
until it “has had the opportunity during a six-month period … to make its determination as to
whether there is a significant likelihood of removal in the reasonably foreseeable future.” Id. §
241.13(b)(2)(ii).
An alien may submit a written request for release to the HQPDU. Id. § 241.13(d)(1). The
alien must include with his written submission sufficient information to establish his “compliance
with the obligation to effect his or her removal and to cooperate in the process of obtaining
necessary travel documents.” Id. § 241.13(d)(2). HQPDU must respond in writing, with a copy to
counsel, acknowledging receipt and explaining the procedures for evaluating the request. Id. §
241.13(e)(1). It must issue a written decision based on the administrative record. 8 C.F.R. §
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241.13(g). If HQPDU decides there is a significant chance of removal in the reasonably foreseeable
future, it shall deny the request for release and so advise the alien. Id. § 241.13(g)(2). There is no
administrative appeal from HQPDU’s decision to deny an alien’s request. Id.
IV. 	ANALYSIS
A. Court has jurisdiction to review Petition and Amended Petition.
A court may 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). “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). District courts are
authorized to entertain petitions for habeas corpus “within their respective jurisdictions.” 28 U.S.C.
§ 2241(a). Because Petitioner was confined within this district at the time he filed the Petition and
he named his immediate custodian, this Court properly exercises habeas jurisdiction under 28
U.S.C. § 2241. Cf. Ex parte Endo, 323 U.S. 283, 304-06 (1944) (holding that district court acquired
jurisdiction of habeas case filed in district where petitioner was then located, and court did not lose
jurisdiction when petitioner was transferred to another state where person in whose custody
petitioner is remains within district); Pinson v. Berkebile, 604 F. App'x 649, 652–53 (10th Cir. Mar.
10, 2015) (holding that “District of Colorado acquired jurisdiction when [petitioner] filed his
habeas petition” while he was held in Colorado and his transfer to another state “does not defeat
that initial jurisdiction”) (citing Rumsfeld v. Padilla, 542 U.S. 426, 440–41 (2004)).
Nevertheless, Respondents argue that § 1252(g) and § 1252(b)(9) bar jurisdiction to review
Petitioner’s claims. Section 1252(g) provides:
[N]o court shall have jurisdiction to hear any cause or claim by or on behalf of any
alien 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.
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8 U.S.C. § 1252(g) (emphasis added). Petitioner contends this provision does not bar his
constitutional challenges to the length and legality of his detention and DHS’s failure to follow
mandatory regulations. See Resp. 9-14, Dkt. No. 9.
The Supreme Court instructed that § 1252(g) narrowly applies to only three specific actions
– the decision or action to commence proceedings, adjudicate cases, or execute removal orders.
Reno v. American-Arab Anti-Discrimination Committee, 525 U.S. 471, 482 (1999). As Petitioner
points out, he is not asking the Court to second-guess Respondents’ discretionary decision to
commence removal proceedings against him, to adjudicate the case, or to execute the removal
order. Rather, he is challenging a separate matter – whether he may continue to be detained past
the 6-month presumptive constitutional period while Respondents work to bring about his removal.
Prolonged detention is a separate matter from the execution of removal. Section 1252(g) does not
strip the Court of jurisdiction to consider the claims in the Amended Petition. See Jennings v.
Rodriguez, 583 U.S. 281, 294 (2018) (construing § 1252(g) as limited to just the three actions
themselves – commencing proceedings, adjudicating cases, or executing removal actions – and
not sweeping in any claim that could technically arise from the listed actions).
Respondents also suggest that § 1252(b)(9) divests this Court of jurisdiction to review the
Amended Petition. Section 1252(b)(9) states:
Judicial review of all questions of law and fact, including interpretation and
application of constitutional and statutory provisions, arising from any action taken
or proceeding brought to remove an alien from the United States under this
subchapter shall be available only in judicial review of a final order under this
section. Except as otherwise provided in this section, no court shall have
jurisdiction, by habeas corpus under section 2241 of Title 28 or any other habeas
corpus provision … to review such an order or such questions of law or fact.
8 U.S.C. § 1252(b)(9). Section 1252(a)(5) provides that a petition for review filed with the court
of appeals is the “sole and exclusive means for judicial review of an order of removal…” 8 U.S.C.
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§ 1252(a)(5). The Court is not convinced these sections preclude judicial review of a post-removal
prolonged detention claim. Cf. Jennings, 583 U.S. at 293-95 (concluding that § 1252(b)(9) does
not present jurisdictional bar to Court’s consideration of whether certain statutory provisions
require detention without bond hearing); Mukantagara v. U.S. Dep’t of Homeland Security, 67
F.4th 1113, 1116 (10th Cir. 2023) (holding that § 1252(b)(9) did not bar judicial review of agency
decision to terminate plaintiffs’ refugee status because it is not a decision to commence
proceedings, much less adjudicate a case or execute a removal order); Ochieng v. Mukasey, 520
F.3d 1110, 1115 (10th Cir. 2008) (explaining that alien may challenge detention under § 1226(c)
through a § 2241 habeas corpus proceeding and that 8 U.S.C. §§ 1252(a)(5) and 1252(b)(9) do not
apply where alien is not seeking review of an order of removal, but review of his detention).
Finally, Respondents assert that the Court lacks jurisdiction to consider the APA claim
because § 1252(a)(2)(B)(ii) precludes judicial review. Under the APA, a court may set aside
agency action that “is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance
with law.” 5 U.S.C. § 706(2)(A). The APA does not apply where “statutes preclude judicial
review” or “agency action is committed to agency discretion by law.” 5 U.S.C. § 701(a)(1)-(2).
Section 1252 of the INA strips a court of jurisdiction to review “any other decision or action of the
Attorney General or the Secretary of Homeland Security the authority for which is specified under
this subchapter to be in the discretion of the Attorney General or the Secretary of Homeland
Security.” 	8 	U.S.C. 	§ 	1252(a)(2)(B)(ii). 	The 	Tenth 	Circuit 	recently 	confirmed 	that 	§
1252(a)(2)(B)(ii) applies only to discretionary actions and does not remove a court’s jurisdiction
to resolve questions of nondiscretionary eligibility determinations. Mukantagara v. Noem, 164
F.4th 765, 769-74 (10th Cir. 2026).
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Respondents argue that Petitioner cannot challenge ICE’s discretionary decision to revoke
his supervision. Mot. to Dismiss Am. Pet. 9, Dkt. No. 21. For his part, Petitioner argues that he is
not contesting ICE/ERO’s discretionary authority to detain certain noncitizens; rather, his claim is
based on DHS’s failure to comply with mandatory regulations. Resp. 11, Dkt. No. 9. As such,
Petitioner asserts that courts have jurisdiction to review his claim based on United States ex rel.
Accardi v. Shaughnessy, 347 U.S. 260, 268 (1954). Resp. 11, Dkt. No. 9. The Accardi doctrine
requires an agency to follow the policy and regulations it promulgates. Jagers v. Federal Crop Ins.
Corp., 758 F.3d 1179, 1186 (10th Cir. 2014).
The Supreme Court in Zadvydas held that § 2241 habeas corpus proceedings remain
available for statutory and constitutional challenges to post-removal-period detention. 533 U.S. at
688. It explained:
Another provision, 8 U.S.C. § 1252(a)(2)(B)(ii) (1994 ed., Supp. V), says that “no
court shall have jurisdiction to review” decisions “specified ... to be in the discretion
of the Attorney General.” The aliens here, however, do not seek review of the
Attorney General's exercise of discretion; rather, they challenge the extent of the
Attorney General's authority under the post-removal-period detention statute. And
the extent of that authority is not a matter of discretion.
Id. Petitioner claims that his prolonged detention violates the bounds set forth in Zadvydas and
agency regulations, and that Respondents have failed to adhere to the process regarding lawful
detention pending removal. He does not challenge discretionary decisions. Accordingly, Section
1252(a)(2)(B)(ii) does not strip this Court of jurisdiction to consider Petitioner’s habeas claims.
The Court thus recommends not dismissing the habeas petition for lack of jurisdiction.
B. Amended 	Petition 	should 	not 	be 	dismissed 	for 	failure 	to 	exhaust
administrative remedies.
Before turning to the merits of the Amended Petition, the Court must also consider
Respondents’ prudential exhaustion argument. They contend that Petitioner did not allege that he
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submitted a written request for HQPDU to review his detention, as § 241.13 requires. Mot. to
Dismiss Am. Pet. 12-13, Dkt. No. 21. Respondents urge the Court to dismiss the Amended Petition
without prejudice, or alternatively, order HQPDU to treat the Amended Petition as the written
request for review. See id. Petitioner did not squarely address the argument.
The INA mandates exhaustion as to final orders of removal, but it contains no exhaustion
provision regarding challenges to preliminary custody or bond determinations. Gonzalez v.
O’Connell, 355 F.3d 1010, 1016 (7th Cir. 2004). Although § 2241 does not expressly require a
petitioner to exhaust direct appeals before filing a petition for habeas corpus, as a prudential matter,
habeas petitioners must generally exhaust available administrative remedies before seeking habeas
relief under § 2241. Garza v. Davis, 596 F.3d 1198, 1203 (10th Cir. 2010); Castro-Cortez v. I.N.S.,
239 F.3d 1037, 1047 (9th Cir. 2001), overruled on other grounds by Fernandez-Vargas v.
Gonzales, 548 U.S. 30 (2006). Where exhaustion is not statutorily required, “sound judicial
discretion governs.” Gonzalez, 355 F.3d at 1016 (quoting McCarthy v. Madigan, 503 U.S. 140,
144 (1992)). “A narrow exception to the exhaustion requirement applies if a petitioner can
demonstrate that exhaustion is futile.” Garza, 596 F.3d at 1203. Notably, the Tenth Circuit has
said that challenges to immigration detention under Zadvydas “are properly brought directly
through habeas” and that “the exhaustion deficiencies we have noted in other respects do not affect
habeas jurisdiction over such claims.” Soberanes, 388 F.3d at 1310.
Courts have split on whether, as a prudential matter, exhaustion of administrative remedies
under § 241.13 is required before bringing a habeas petition. Compare Quintana Casillas v.
Sessions, Civ. 17-01039-DME-CBS, 2017 WL 3088346, *10-11 (D. Colo. July 20, 2017)
(concluding as prudential matter that dismissal without prejudice is warranted to follow
administrative review process in § 241.13); Royer v. Holder, No. 3:12-cv-1319-J-12MCR, 2012
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WL 6553114, at *3 (M.D. Fla. Dec. 14, 2012) (requiring petition to receive final decision from
HQPDU on custody determination before considering habeas petition and dismissing petition
without prejudice), with Pablo Lorenzo v. Bondi, 2:25-cv-00923-KWR-GJF, 2026 WL 84521, at
* 2 (D.N.M. Jan. 12, 2026) (declining to require petitioner to exhaust remedies under § 241.13);
Jimenez Chacon v. Lyons, No. 2:25-cv-977-DHU-KBM, 2025 WL 3496702, at *5 (D.N.M. Dec.
4, 2025) (finding that petitioner’s failure to exhaust administrative remedies pursuant to § 241.13
does not bar habeas relief).
Exhaustion is favored when (1) the “action under review involves exercise of the agency's
discretionary power,” and (2) the agency procedure at issue allows for “the agency to apply its
special expertise.” McCarthy v. Madigan, 503 U.S. 140, 145 (1992). An individual's interests
weigh heavily against requiring exhaustion in the following three circumstances: (1) when the
administrative remedy “may occasion undue prejudice to subsequent assertion of a court action”;
(2) when there is doubt that the agency is “empowered to grant effective relief”; and (3) when an
administrative body is “shown to be biased” or has predetermined the issue before it. Id. at 146-
48. Applying the prudential factors in a similar case, Judge Riggs concluded that they neither
weigh in favor nor against requiring exhaustion:
Although the decision to detain and remove involves agency discretion, due process
concerns and Zadvydas restrict that discretion when a noncitizen is detained beyond
the presumptively reasonable period, as is the case here. Further, determining
whether future removal is significantly likely does not call for specific “agency
expertise.” … [T]he parties have presented the Court the relevant facts and
documentation concerning Petitioner's likelihood of removal, and thus, the Court is
well prepared to address the Zadvydas inquiry. Therefore, the factors weighing in
favor of exhaustion do not hold particular weight here.
Pablo Lorenzo, 2026 WL 84521, at * 3 (internal citations omitted).
The Court finds this analysis persuasive. Here, too, the relevant facts and documentation
concerning 	Petitioner’s 	likelihood 	of 	removal 	are 	before 	the 	Court, 	so 	the 	benefits 	of
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administrative exhaustion are not particularly compelling. As discussed infra, the record
establishes a significant likelihood of removal in the reasonably foreseeable future. Moreover, it
is undisputed that Respondents have attempted to remove Petitioner three times and are continuing
his detention during the removal process. HQPDU has effectively predetermined the issue before
it. Exhaustion with § 241.13 would thus be futile. Requiring exhaustion would also waste scarce
administrative and judicial resources and unnecessarily delay resolution of this clear-cut matter.
Accordingly, the undersigned recommends waiving the exhaustion requirement in this case and
not dismissing the Amended Petition for failure to exhaust. Cf. Izbitski v. Carnes, 1:25-cv-00778-
JB-JMR, 2025 WL 3754485, at *6 (D.N.M. Dec. 29, 2025) (waiver of exhaustion appropriate
where there were no contested facts that would be better investigated by agency, court would not
be aided by administrative record, and exhaustion would waste scare judicial and legal resources),
adopted by 2026 WL 102974, at *6 (Browning, J.) (concluding that waiver of exhaustion was not
clearly erroneous, arbitrary, obviously contrary to law, or an abuse of discretion).
C. Due process claims should be dismissed.
1. 	Unlawful 	prolonged 	detention 	claim 	(Count 	One) 	should 	be
dismissed.
As the Supreme Court explained in Zadvydas, the habeas court’s task is to “ask whether
the detention in question exceeds a period reasonably necessary to secure removal.” 533 U.S. at
699. Reasonableness is measured “primarily in terms of the statute's basic purpose, namely,
assuring the alien's presence at the moment of removal.” Id. “Thus, if removal is not reasonably
foreseeable, the court should hold continued detention unreasonable and no longer authorized by
statute.” Id. at 699–700. Respondents argue that Petitioner cannot meet his burden to show that
there is good reason to believe that there is no significant likelihood of removal in the reasonably
foreseeable future. The Court agrees.
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Petitioner has presented no evidence indicating Respondents are unwilling to remove him
or that there are insurmountable barriers to removal. Cf. Aguilar v. Noem, Case No. 25-cv-03463-
NYW, 2025 WL 3514282, at *4 (D. Colo. Dec. 8, 2025) (explaining that courts have found
petitioner’s burden met where he shows some impediment precludes removal to country of origin);
Gathiru v. Banieke, Civil No. 15-4247 (DSD/TNL), 2016 WL 6436621, at *2 (D. Minn. Oct. 27,
2016) (explaining that noncitizen cannot rely merely on passage of time to meet burden; rather,
there must be some indication government is unwilling to remove him, or insurmountable barriers
exist preventing removal). As for willingness, Respondents attempted on three separate occasions
to place Petitioner on a flight to China. Petitioner’s self-harm, captured on video, prevented his
initial removal. On two separate occasions, Respondents tried to remove him via a commercial
airflight, but Petitioner refused to enter the airport, thwarting his removal. Sanchez. Decl. ¶¶ 9, 12,
Dkt. No. 21-1. Petitioner did not file a response contesting this evidence.5 “The risk of indefinite
detention that motivated the Supreme Court's statutory interpretation in Zadvydas does not exist
when an alien is the cause of his own detention.” Singh v. U.S. Attorney General, 945 F.3d 1310,
1314 (10th Cir. 2019) (quoting Pelich v. Immigration & Naturalization Serv., 329 F.3d 1057, 1060
(9th Cir. 2003)).
Petitioner suggests in his Amended Petition that the travel documentation was not
legitimate. In their Motion to Dismiss Amended Petition, however, Respondents submitted a
5 In his Amended Petition, Petitioner admits that he slammed his arm in one of the metal doors and broke it. Am. Pet.
¶ 37, Dkt. No. 20. By way of explanation, he asserts that, after talking to a psychiatrist, he had a nervous breakdown.
Id. That explanation, however, does not refute that his self-harm actions effectively prevented his removal, whether
that was his intent or not. He also states in his Amended Petition that on April 13, he was told to board a civil
commercial air flight to China, but when shown a document, Petitioner could see that it was not a formal Chinese
official travel document that would permit his entry to China. Id. ¶ 39. Petitioner, however, does not dispute that he
refused to board the flight on April 13, 2026, or to board a separate flight on April 16, 2026. Unlike in Singh, Petitioner
failed to contest the key facts necessary to find that he acted to prevent his own removal. Cf. Singh, 945 F.3d at 1315-
16 (remanding for evidentiary hearing where conflicting statements were made in competing affidavits). This Court
therefore can resolve the Amended Petition on the current record without an evidentiary hearing.
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Permit for Entry to China in Petitioner’s name, valid for three months beginning March 9, 2026.
Petitioner did not file a response disputing its authenticity or effectiveness. The Court thus
recommends finding that Petitioner waived any argument that the Permit for Entry is not valid,
proper, or legitimate authorization to allow his entry back to China.
Consequently, the record reflects that Respondents secured a Permit for Entry, authorizing
Petitioner’s return to China. Gov.’s Ex. 2, Dkt. No. 21-2. Petitioner is pending removal to China
and Respondents are preparing travel arrangements for a fourth removal attempt to China. Sanchez
Decl. ¶ 15, Dkt. No. 21-1. Petitioner acted to prevent his own removal on three separate occasions.
Petitioner therefore has not met his burden of establishing that there is good reason to believe that
there is no significant likelihood of removal in the reasonably foreseeable future to shift the burden
to the government. Moreover, even if he met that initial burden, Respondents have submitted
robust, uncontested evidence showing that there is a significant likelihood of removal soon and
Petitioner has caused his own continued detention by acting to prevent the execution of his
removal. Cf. Singh, 945 F.3d at 1314 (“Section 1231(a)(1)(C) extends the removal period if the
noncitizen … ‘conspires or acts to prevent the alien's removal.’”). He is not entitled to release. See
8 C.F.R. § 241.4(g)(5)(i) (“Release will be denied and the alien may remain in detention if the
alien … acts to prevent the alien's removal.”). For all these reasons, the Court recommends finding
that Petitioner’s detention does not offend the Due Process Clause or Zadvydas and that
Petitioner’s first claim for relief should be denied.6
6 Section 1231(a)(1)(C) also extends the removal period if a noncitizen “fails or refuses to make timely application in
good faith for travel or other documents necessary to the alien’s departure.” Singh, 945 F.3d at 1314 (quoting 8 U.S.C.
§ 1231(a)(1)(C)). The initial motion practice focused on whether Petitioner refused to complete the travel documents
and whether the delay by the Chinese government in failing to issue the travel documents, despite Respondents’ efforts
to obtain them, is enough to justify the delay. Petitioner pointed to perceived flaws in William S. Shaw’s declaration
and asserted that, by failing to offer translation of the documents, Respondents did not provide Petitioner with the
opportunity and tools to cooperate through an interpreter or counsel. See Resp. 3-7, Dkt. No. 9. By the time of the
Amended Petition, however, the more developed record revealed active attempts by Petitioner, captured on video, to
engage in self-harm that prevented his removal, as well as refusals to board airplanes on two additional occasions. The
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2. 	Due process claim (Count Two) should be dismissed.
Petitioner asserts in his Amended Petition that Respondents have not provided him or his
counsel evidence of authorization or travel documentation from the Chinese government that
would lawfully allow his entry back into China and that their failure to do so violates due process.
Am. Pet. ¶¶ 50-52, Dkt. No. 20. As aforementioned, Respondents attached to their Motion to
Dismiss the Amended Petition a copy of the Permit for Entry to China in Petitioner’s name and
valid for three months, beginning March 9, 2026. Gov.’s Ex. 2, Dkt. No. 21-2. Petitioner did not
respond to the Motion to Dismiss Amended Petition or otherwise dispute that the Permit for Entry
is 	proper, 	valid, 	and 	authorizes 	Petitioner’s 	entry 	into 	China. 	Petitioner’s 	assertion 	that
Respondents continue to refuse to provide proper travel documents to him is therefore without a
basis. Because Respondents established that travel documents were obtained for Petitioner, and
will be obtained again, if necessary, Petitioner should not be released. See 8 C.F.R. § 241.4(g)(3).
The Court recommends finding, based on the current record, that Respondents did not violate
Petitioner’s due process rights based on the failure to possess and provide to Petitioner legitimate
travel documentation for him to return to China.
V. 	CONCLUSION
For the reasons stated above, the Court RECOMMENDS (i) the Petition for Writ of
Habeas Corpus (Dkt. No. 1) be denied as moot; (ii) Respondents’ Motion to Dismiss Petition for
Writ of Habeas Corpus (Dkt. No. 8) be denied as moot; (iii) Respondents’ Motion to Dismiss
Petitioner’s First Amended Petition for Writ of Habeas Corpus (Dkt. No. 21) be granted; and (iv)
the First Amended Petition for Writ of Habeas Corpus (Dkt. No. 20) be denied without prejudice.
Court’s analysis thus shifted to the alien’s own acts to prevent removal as the basis for extending his detention lawfully,
rather than on whether he cooperated with efforts to obtain travel documents.
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SO RECOMMENDED.
THE PARTIES ARE 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). 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. If no objections are filed, no appellate review will be allowed.
__________________________________________
THE HONORABLE GREGORY J. FOURATT
UNITED STATES MAGISTRATE JUDGE
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