Case Name in Immigration Case - Unavailable

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
___________________________
LUSH NDOU,
Petitioner,
v. Case No. 2:26-cv-00220-KWR-GJF
KRISTI NOEM, in her official capacity as
Secretary of the Department of Homeland Security,
PAMELA BONDI, in her official capacity as
Attorney General of the United States,
TODD LYONS, in his official capacity as
Acting Director of the United States Immigration
and Customs Enforcement,
MARY DE ANDA-YBARRA,
in her official capacity as Field Office Director of
the El Paso Field Office of U.S. Immigration and
Customs Enforcement, Enforcement and Removal Operations,
DORA CASTRO, in her official capacity as
Warden of the Otero County Processing Center,
Respondents.
MEMORANDUM OPINION AND ORDER GRANTING PETITIONER’S HABEAS
PETITION
THIS MATTER comes before the Court on Petitioner’s Petition for Writ of Habeas
Corpus (Doc. 1). Having reviewed the parties’ pleadings, exhibits, and the relevant law, the Court
finds that the Petition is well-taken, and therefore, is GRANTED.
BACKGROUND
Petitioner Lush Ndou is a citizen of Albania who entered the United States on a tourist visa
in October 1994. Doc. 1 ¶ 15. In December 1994, he submitted an application for asylum,
withholding of removal, and protection under the Convention Against Torture Act (“CAT”). Id. ¶
16. In 1997, an immigration judge (“IJ”) denied Petitioner’s asylum application, withholding of
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removal, and CAT claim and ordered Petitioner removed. Id. ¶ 17. Petitioner was granted
voluntary departure in lieu of a deportation order, which became an order of removal in October
1997 when petitioner did not provide proof of departure. Id.; Doc. 11-1 ¶¶ 5–6 (ICE Officer
Declaration). Petitioner timely appealed to the Board of Immigration Appeals (“BIA”), which
dismissed his appeal in July 1998. Doc. 1 ¶ 18.
On or about June 17, 2025, Immigration and Customs Enforcement (“ICE”) officers
arrested Petitioner following his release from arrest for state criminal charges, which were later
dismissed. Id. ¶ 5, 19; Doc. 11 at 2 (Respondents’ Answer). On July 11, 2025, Petitioner filed a
motion to reopen removal proceedings and a request to stay his removal. Doc. 11 at 2–3; Doc. 12
at 3 (Petitioner’s Reply). On January 28, 2026, the BIA denied his motion and request. Doc. 11-1
at 3; Doc. 12 at 3.
Petitioner has remained in custody since June 2025. Doc. 1 ¶ 19. As of the date of the
Petition’s filing, he is detained at the Otero County Processing Center in New Mexico. Id. He
challenges his lawfulness of his detention and his conditions of confinement. Id. ¶¶ 38, 40, 48.
LEGAL STANDARD
The Constitution guarantees that the writ of habeas corpus is “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. §
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 v. Davis, 533 U.S.
678, 687–88 (2001)).
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DISCUSSION
Petitioner asserts that he is “in custody in violation of the Constitution or laws or treaties
of the United States.” 28 U.S.C. § 2241(c)(3). Specifically, he argues that his continued detention
is unlawful under 8 U.S.C. § 1231 and Zadvydas because his removal is no longer reasonably
foreseeable. Respondents argue that Petitioner fails to meet his burden under Zadvydas because
his removal period reset when the BIA denied his motion to reopen removal proceedings.1
For the reasons discussed below, the Court finds that Petitioner’s removal period did not
reset in January 2026. Thus, his detention is governed by post-detention-period authority. Since
his continued detention has extended beyond the six-month presumptively reasonable period, and
there is no significant likelihood of removal in the reasonably foreseeable future, the Court will
grant habeas relief.
I. Petitioner’s removal period did not reset when the BIA denied his motion to reopen.
Pursuant to the Immigration and Nationality Act (“INA”), the Government must remove a
noncitizen within a 90-day removal period. § 1231(a)(1)(A). This removal period begins “on the
latest of the following:
(i) The date the order of removal becomes administratively final.
(ii) If the removal order is judicially reviewed and if a court orders a stay of the
removal of the alien, the date of the court’s final order.
(iii) If the alien is detained or confined (except under an immigration process), the
date the alien is released from detention or confinement.
1 Respondents do not argue that Petitioner must exhaust administrative remedies before seeking
habeas relief, and the Court will not address the issue of exhaustion sua sponte.
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Id. § 1231(a)(1)(B). A removal order becomes “administratively final” when the order has been
affirmed by the BIA or the time for seeking review has expired. 8 U.S.C. § 1101(a)(47)(B); Riley
v. Bondi, 606 U.S. 259, 267 (2025). During the removal period, detention is mandatory. §
1231(a)(2)(A).
Here, the issue is whether Petitioner’s removal period under § 1231(a)(1)(B)(i) began on
January 28, 2026, when the BIA denied his motion to reopen. Respondents argue that Petitioner’s
detention cannot be unconstitutional because he is still within the removal period and subject to
the 90-day detention requirement of § 1231(a)(2)(A). Doc. 11 at 5. Petitioner disagrees, stating
that his removal order became administratively final decades ago and the BIA never granted a stay
of the removal proceedings when he filed his motion to reopen; therefore, his detention is governed
by post-removal-period detention authority. Doc. 12 at 3–4.
The Court agrees with Petitioner that his detention does not fall within the removal period,
although for a different reason than the one put forward by Petitioner. The parties focus on whether
a stay was issued. But the motion to reopen was not under judicial review; it was before the BIA,
an administrative body. Accordingly, the BIA’s decision could not trigger a new removal period
under § 1231(a)(1)(B)(ii). Instead, Petitioner’s removal period is determined by the date that his
removal order became “administratively final.”
Turning to § 1231(a)(1)(B)(i), the Court begins with the plain language of the statute. There
it states that the removal period begins “the date the order of removal becomes administratively
final.” The provision is clear that the removal period is only triggered by “the order of removal,”
and not any other type of order. And the finality of a removal order is determined by statute as “a
determination by the Board of Immigration Appeals affirming such order” or “the expiration of
the period in which the alien is permitted to seek review of such order by the Board of Immigration
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Appeals.” Id. § 1101(a)(47)(B); Riley, 606 U.S. at 267 (concluding that an “order of removal” has
the “same characteristics” as an “order of deportation”).
Respondents do not point to any authority to support that, if a petitioner requests to reopen
removal proceedings, it will undo the finality of a removal order—turning the date of denial into
the new “administratively final” date under § 1231(a)(1)(B)(i). And the Supreme Court has stated
that orders that do not disturb or affect the validity of the final order are not “final orders of
removal” under 8 U.S.C. § 1252. Riley, 606 U.S. at 268–69 (pointing to their decisions where the
Court found that CAT orders and withholding-only proceedings, respectively, did not impact the
finality of the removal orders to support its conclusion that a final administrative review order was
a “final order of removal”). Since § 1252 simply determines when a petitioner may seek judicial
review of final orders of removal, which could then trigger a new removal period under §
1231(a)(1)(B)(ii), the Court does not find a reason to depart from the Supreme Court’s reasoning
in Riley as it pertains to § 1231(a)(1)(B)(i).
Here, the denial of a motion to reopen does not affect the validity of a final order of
removal. A motion to reopen may not be filed until “a final administrative order of removal” has
been issued. Id. § 1229a(c)(7)(C)(i). The granting of a motion to reopen depends on whether a
petitioner can establish that she was eligible for relief before an “administratively final order” was
entered. 8 C.F.R. § 1003.2(c)(1). And the regulations governing immigration proceedings
specifically state that noncitizens are still subject to § 1231, which governs detention during and
beyond the removal period, unless a motion to reopen is granted. 8 C.F.R. § 241.4(b)(1).
Additionally, decisions by multiple circuit courts support the Court’s determination that
the denial of a motion to reopen does not impact the removal period under § 1231(a)(1)(B)(i). See
Naranjo-Castillo v. INS, 145 F.3d 16, 1998 WL 243700, at *2 (10th Cir. 1998) (unpublished table
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decision) (noting that, in a case where petitioner filed a motion to reopen, BIA’s decision was
“administratively final” when petitioner waived the right to appeal before an IJ in 1995); Diouf v.
Mukasey, 542 F.3d 1222, 1230 (9th Cir. 2008) (concluding that removal period began when
removal order became final; later challenges to denial of motions to reopen had no effect on
removal period date); Forde v. U.S. Att’y Gen., 257 F. App’x 167, 169 (11th Cir. 2007) (citing
Stone v. INS, 514 U.S. 386, 405 (1995) (“The finality of a removal order is not affected by the
filing of a motion to reopen or reconsider.”).
Accordingly, Petitioner’s removal period could not reset when the BIA denied his motion
to reopen in January 2026. His order of removal was administratively final decades ago. Since
Petitioner has been detained since June 2025, and Respondents do not argue that his removal period
has been extended beyond 90 days,2 the Court will consider whether Petitioner’s continued
detention is unlawful.
II. Petitioner’s continued detention violates 8 U.S.C. § 1231 under Zadvydas.
Upon expiration of the initial removal period, Respondents may continue to detain the
noncitizen, but not indefinitely. Johnson v. Guzman Chavez, 594 U.S. 523, 528–29 (2021);
§ 1231(a)(6); Zadvydas, 533 U.S. at 699. Continued detainment 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,”
Respondents must then rebut the noncitizen’s showing. Id. Given a sufficient showing by
Respondents, the noncitizen may be confined “until it has been determined that there is no
significant likelihood of removal in the reasonably foreseeable future.” Id. Although Zadvydas
2 For example, Respondents do not argue that Petitioner’s failure to comply extended his removal
period beyond 90 days. See Doc. 11-1 at 3.
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dealt with a noncitizen deemed removable after gaining admission to the United States, its holding
applies to noncitizens who are deemed inadmissible. Clark v. Martinez, 543 U.S. 371, 386 (2005);
see also Morales-Fernandez v. INS, 418 F.3d 1116, 1123–24 (10th Cir. 2005) (finding that, in Clark
v. Martinez, the Supreme Court expanded Zadvydas to apply to inadmissible noncitizens).
Here, Respondents only rely on their assertion that Petitioner’s removal period reset on
January 28, 2026, making his detention presumptively reasonable until July 2026. Doc. 11 at 5. As
discussed above, Respondents’ calculation of Petitioner’s removal period is not supported by law.
It is undisputed that Petitioner has been detained for more than eight months, so his detention has
extended beyond the six-month presumptively reasonable mark under Zadvydas. Therefore, the
Court will consider whether Petitioner has met his burden and whether Respondents have failed to
rebut Petitioner’s showing.
Petitioner demonstrates that there is not a significant likelihood that he will be removed in
the foreseeable future. Despite his detention since June 2025, Petitioner alleges that ICE has
been—and will continue to be—unable to secure a travel document for his removal because of the
lack of recorded identity documents for him in Albania due to the deficient recordkeeping
following its split from the Soviet Union and the subsequent political and administrative
transitions. Doc. 1 ¶¶ 3, 37. According to Petitioner, Respondents have not produced any evidence
that his removal is reasonably foreseeable. Doc. 12 at 3. Specifically, Respondents have not
submitted “any proof of travel document issuance, consular cooperation, scheduled removal
flights, or any concrete removal arrangements.” Id.
Respondents have produced little evidence to rebut Petitioner’s showing. The filed
declaration outlines few steps taken towards removal since July 2025. Despite the knowledge that
a stay had not been granted by the BIA, see Doc. 11-1 ¶ 15, Respondents made almost no effort to
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facilitate Petitioner’s removal during the seven months that his motion to reopen and request for
stay were pending. Although Respondents completed pre-removal checks and a file was “sent to
exotic travel component for final arrangements” in February, Doc. 11-1 at 3, there is no indication
that Albania is cooperating and coordinating with DHS to facilitate Petitioner’s departure. There
is no indication that Petitioner will be removed to Albania or to any other country. No travel
document has been issued. See Khungbik v. Carter, No. 26-3016-JWL, 2026 WL 656930, *2 (D.
Kan. Mar. 9, 2026). And Respondents fail to rebut Petitioner’s assertion that it is unlikely that a
travel document will be issued due to the lack of identity documentation for individuals like
Petitioner who were born in Albania during the 1960s. Despite the standing order to alert the Court
to any changes that would affect the outcome of the Petition, Doc. 3 at 3, Respondents have not
provided any further updates in their progress to remove Petitioner.
In sum, the completion of a pre-removal check and an assurance that “ERO continues to
actively pursue arrangements to Albania,” Doc. 11-1 at 3–4, do not amount to a significant
likelihood that Petitioner will be removed in the reasonably foreseeable future. Good faith efforts
are not enough. See Zadvydas, 533 U.S. at 702. For the above reasons, the Court will order that
Respondents must release Petitioner from custody subject to reasonable conditions of supervision.
III. The Court will not rule on Petitioner’s allegations regarding treatment in detention.
Petitioner raises a claim regarding his conditions of confinement. Petitioner contends that
the detention center has repeatedly denied him with necessary medical care for his heart condition,
tooth pain, and back pain. Doc. 1 ¶¶ 21–22, 45–48. Alarmingly, Petitioner states that he had to
extract his own tooth after being denied access to a dentist. Id. ¶ 46. For these reasons, Petitioner
alleges that Respondents violated his Fifth Amendment right to due process. Id. ¶ 48. Although
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the Court is concerned by these allegations, it will not address the merits of this conditions of
confinement claim.
First, the claim appears to be moot since the Court is granting Petitioner habeas relief.
Second, claims related to conditions of confinement are properly raised under a civil rights action,
not a habeas corpus petition. The basic purpose of a § 2241 habeas proceeding is to permit a
person in custody to attack the legality of custody, and the “traditional function of the writ is to
secure release from illegal custody.” McIntosh v. U.S. Parole Comm’n, 115 F.3d 809, 811 (10th
Cir. 1997) (quoting Preiser v. Rodriguez, 411 U.S. 475, 484 (1973)). Therefore, a challenge to
“the fact or duration of” confinement must be brought through a habeas corpus petition, while a
challenge to the conditions of confinement must be brought through a civil rights action under 42
U.S.C. § 1983 or Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971). Palma-Salazar v.
Davis, 677 F.3d 1031, 1035 (10th Cir. 2012); Rael v. Williams, 223 F.3d 1153, 1154 (10th Cir.
2000). Petitioner appears to raise these detention-related concerns primarily as a request to
expedite these proceedings as he does not request relief on the basis of his conditions of
confinement. See Doc. 1 at 14. Therefore, Petitioner’s allegations regarding inadequate treatment
fall outside the scope of the Court’s habeas review. Should Petitioner wish to pursue this claim, he
would need to file a separate civil rights action.
IV. Petitioner may file an Equal Access to Justice Act application to pursue reasonable
costs and fees.
Petitioner requests that the Court award attorney’s fees and costs under the Equal Access
to Justice Act (“EAJA”). Doc. 1 at 14. Respondents do not address Petitioner’s request for fees
and costs. Considering recent Tenth Circuit precedent and the relevant procedure, the Court finds
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that it may consider Petitioner’s request for attorney’s fees and costs provided that Petitioner
follows proper EAJA procedure.
The EAJA provides for the following procedure:
[A] court shall award to a prevailing party other than the United States fees and
other expenses, in addition to any costs awarded pursuant to subsection (a), incurred
by that party in any civil action . . . brought by or against the United States in any
court having jurisdiction of that action, unless the court finds that the position of
the United States was substantially justified or that special circumstances make an
award unjust.
28 U.S.C.§ 2412(d)(1)(A). Finding that “‘civil action’ unambiguously refers to any legal action
brought to enforce a private or civil right, or to redress a private wrong,” the Tenth Circuit held
that the EAJA “unambiguously authorize[s] fees in habeas actions challenging immigration
detention.” Daley v. Ceja, 158 F.4th 1152, 1159, 1166 (10th Cir. 2025).
A fee award is required if (1) the plaintiff prevails, (2) Respondents’ position was not
“substantially justified,” and (3) there are no special circumstances rendering an award of fees
unjust. Hackett v. Barnhart, 475 F.3d 1166, 1172 (10th Cir. 2007) (quoting 28 U.S.C.
§ 2412(d)(1)(A)). While fees are authorized, the EAJA requires that Petitioner, “within thirty days
of final judgment in the action, submit to the court an application for fees and other expenses,” and
an allegation demonstrating that “the position of the United States was not substantially justified.”
28 U.S.C. § 2412(d)(1)(A), (B). Upon filing this application, Respondents must justify its position
in any underlying proceedings and district court litigation. See Hackett, 475 F.3d at 1170.
Since the Court grants Petitioner’s habeas relief, should Petitioner continue to pursue costs
and fees, Petitioner is instructed to file an EAJA application following the appropriate procedure.
CONCLUSION
In sum, the Court finds that Petitioner’s continued detention runs afoul of 8 U.S.C.
§ 1231(a)(6) and Zadvydas. Accordingly, the Court finds that Petitioner is entitled to habeas relief.
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IT IS THEREFORE ORDERED that Petitioner’s Petition for Writ of Habeas Corpus
(Doc. 1) is hereby GRANTED for reasons described in this Memorandum Opinion and Order.
IT IS FURTHER ORDERED that Petitioner be released from custody by 5:00 p.m. on
March 12, 2026, subject to reasonable conditions of supervision. Respondents are directed to file
certification that Petitioner has been released within three (3) days.
_____/S/_____________________________
KEA W. RIGGS
UNITED STATES DISTRICT JUDGE
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