Case Name in Immigration Case - Unavailable

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
LASSANA DAO,
Petitioner,
v. 	No. 2:26-cv-0370 JB/DLM
HECTOR RIOS, et al.,
Respondents.
PROPOSED FINDINGS AND RECOMMENDED DISPOSITION
THIS MATTER is before the Court on Petitioner Lassana Dao’s Petition for Writ of
Habeas Corpus filed under 28 U.S.C. § 2241. (Doc. 1.) Petitioner challenges the legality of his
continued detention on two grounds. First, he asserts that Immigration and Customs Enforcement
(ICE) unlawfully revoked his Order of Supervision (OSUP) without complying with mandatory
procedures in violation of governing regulations and the Due Process Clause. Second, he argues
that his post‑order detention has become unlawful because his removal is not significantly likely
in the reasonably foreseeable future.
Having reviewed the record, the parties’ submissions, and the governing law, the
undersigned recommends that the Petition be GRANTED IN PART to the extent Petitioner seeks
release based on ICE’s unlawful revocation of his OSUP and the lack of a significant likelihood
of removal in the reasonably foreseeable future. The undersigned further recommends that the
Petition be DISMISSED IN PART to the extent Petitioner seeks relief under the Administrative
Procedure Act or 8 U.S.C. § 1226 because those theories do not provide an independent basis for
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habeas relief in a post‑removal‑order detention case governed by § 1231.1
I. 	Factual and Procedural Background
Petitioner Lassana Dao is a 51‑year‑old native and citizen of Ivory Coast. (Docs. 1 at 7; 8
at 1; 8‑1 ¶ 6; 8‑2 at 1–2.) He applied for admission to the United States on March 5, 2018, at the
Laredo, Texas Port of Entry, where he requested asylum. (Docs. 1 at 7; 8 at 1 (citing Doc. 8-2 at
2); 8‑1 ¶ 6.) An Immigration Judge (IJ) denied his asylum and withholding applications on October
15, 2018, and ordered him removed to Ivory Coast. (See Docs. 8 at 1 (citing 8‑2 at 2); 8‑3 at 3.)
The Board of Immigration Appeals dismissed his appeal on April 1, 2019, rendering the removal
order final. (See Docs. 8 at 1–2 (citing Docs. 8-2 at 2; 8-3); 8‑1 ¶ 7.) Petitioner has no criminal
history. (Doc. 8‑2 at 2.)
On May 31, 2019, ICE released Petitioner from custody on an OSUP. (See Docs. 1 at 7;
8‑1 ¶ 8; 8-2 at 2.) Petitioner complied with check-in requirements and maintained employment
authorization. (See Doc. 1 at 7–8.) His spouse, who was granted asylum on January 24, 2024, filed
an I‑730 petition (Refugee/Asylee Relative Petition) on his behalf on March 31, 2025. (See id.)
The I‑730 petition is currently pending. (Doc. 8‑2 at 2.)
On November 18, 2025, Petitioner appeared for a scheduled OSUP check‑in at 26 Federal
Plaza in New York City, where ICE officers arrested him without incident. (Docs. 1 at 8; 8‑1 ¶ 9;
8‑2 at 1–2.) ICE first transferred Petitioner to El Paso, Texas, and then to the Otero County
Processing Center (OCPC) in Chaparral, New Mexico, where he is currently detained. (Docs. 1 at
4; 8‑1 ¶ 9.)
On December 5, 2025, ICE completed pre‑removal checks and forwarded Petitioner’s file
1 On March 3, 2026, Senior United States District Judge James O. Browning entered an Order of Reference referring
this case to the undersigned “to conduct hearings, if warranted, including evidentiary hearings, and to perform any
legal analysis required to recommend to the Court an ultimate disposition of the case.” (Doc. 9.)
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to the travel‑document team. (Doc. 8‑1 ¶ 10.) On December 22, 2025, ICE requested a travel
document for Petitioner and followed up on January 16, 2026. (Id. ¶¶ 11–12.) ICE twice submitted
travel‑document requests to headquarters, on February 8 and February 15, 2026; both were
rejected. (Id. ¶¶ 14–17.) As of February 26, 2026, Petitioner remains “pending travel document
issuance.” (Id. ¶ 18.)
Petitioner filed his Petition for Writ of Habeas Corpus on February 11, 2026, challenging
the legality of his arrest, the revocation of his OSUP, and his continued detention. (Doc. 1.) The
Government Respondents filed their response on March 3, 2026, asserting that Petitioner is
detained under 8 U.S.C. § 1231(a) and remains within the presumptively reasonable six‑month
period described in Zadvydas v. Davis, 533 U.S. 678 (2001). (Doc. 8.) The Warden Respondent
filed a notice on March 4, 2026, joining fully in the Government’s response and taking no separate
position. (Doc. 12.) Petitioner filed his reply on March 8, 2026. (Doc. 13.) The matter is now fully
briefed and ready for disposition.
II. 	Legal Standard
Federal courts possess longstanding authority to review the legality of executive detention
through the writ of habeas corpus. 28 U.S.C. § 2241 expressly authorizes courts 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). The Tenth Circuit has recognized that “[c]hallenges 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 fundamental purpose of a § 2241 habeas corpus proceeding is to allow a detainee to
challenge the legality of his custody and to secure release from unlawful detention. See
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Palma‑Salazar v. Davis, 677 F.3d 1031, 1035 (10th Cir. 2012). Because Petitioner challenges the
legality of his continued detention, his claim falls squarely within the scope of § 2241.
No party has identified any factual dispute requiring an evidentiary hearing, and the issues
presented are purely legal and fully briefed. As such, the existing record is sufficient to resolve the
habeas petition.
III. 	Discussion
Petitioner challenges the legality of his continued detention on two independent grounds.
First, he asserts that ICE unlawfully revoked his Order of Supervision in violation of governing
regulations and the Due Process Clause. (See Doc. 1 at 8–12.) Second, he argues that his post‑order
detention has become unlawful because removal is not reasonably foreseeable. (See id. at 13–18.)
The Proposed Findings and Recommended Disposition (PFRD) addresses each argument in turn.
A. 	Revocation of Petitioner’s order of supervision.
Petitioner first contends that his detention is unlawful because ICE revoked his OSUP
without complying with the procedures mandated by 8 C.F.R. § 241.4(l). (See Docs. 1 at 2–3, 8–
12; 13 at 3–4.) The record confirms that ICE processed Petitioner as a “Bag and Baggage” case,
generated an “Order of Supervision Revocation,” and recorded informal interview proceedings.2
(See Doc. 8‑2 at 3.) But Respondents have produced no revocation notice, no written explanation
of reasons, no interview record, no custody review, and no determination that removal had become
significantly likely in the reasonably foreseeable future. Courts across the country—including in
2 “A ‘bag and baggage’ letter ‘issues once the government determines that there is no further administrative relief
available to an alien who is subject to an order of removal, and instructs the alien to appear at a specified location and
time for removal.’” Hakhinyan v. Holder, 343 F. App’x 367, 369 n.2 (10th Cir. 2009) (quoting Singh v. Gonzales, 494
F.3d 1170, 1172 n.3 (9th Cir. 2007)).
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this District—have held that such omissions violate the mandatory procedures governing
revocation of supervised release and require habeas relief.
In Nguyen v. Bondi, the District of New Mexico held that ICE violated due process when
it re‑detained a noncitizen previously released under § 1231(a)(3) without complying with the
procedures in § 241.4(l) and § 241.13(i). See Nguyen v. Bondi, No. 2:25-cv-1198 KWR/JMR, 2026
WL 892491, at *4–6 (D.N.M. Mar. 31, 2026). Nguyen had lived in the United States for decades,
had been on supervised release for 20 years, and was taken into custody without any revocation
notice, interview, or explanation. Id. at *1–2, 5. The court first noted that Congress has designated
§§ 241.4(l) and 241.13(i) as the operative procedures ICE must follow when seeking to revoke
supervised release under § 1231(a)(3) or (a)(6). Id. at *5 (citing Sierra Immigr. & Naturalization
Serv., 258 F.3d 1213, 1218 (10th Cir. 2001)). The court explained that § 241.4(l) supplies the
“normal review process” for revoking supervised release—including written notice, a records
review, and an interview—while § 241.13(i) provides the parallel procedures applicable when
DHS asserts a significant likelihood of removal in the reasonably foreseeable future. See id. The
court then emphasized that the regulations require ICE to (1) revoke supervised release through
written 	notice, 	(2) 	provide 	an 	informal 	interview, 	and 	(3) 	make 	a 	contemporaneous
determination—based on changed circumstances—that removal has become significantly likely in
the reasonably foreseeable future. See id. at *5–6 (discussing 8 C.F.R. § 241.13(i)(2)–(3); Kong v.
United States, 62 F.4th 608, 619–20 (1st Cir. 2023)). Because nothing in the record “suggest[ed]
that any of these procedures were followed[,]” the court held that ICE’s revocation was unlawful
and ordered immediate release. Id. at *6.
The court then applied the Mathews framework and held that ICE’s failure to follow
§§ 241.4(l) and 241.13(i) was not merely a regulatory defect but a constitutional violation requiring
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release. See id. at *7–8. The court explained that due process requires consideration of (1) “the
private interest that will be affected[,]” (2) “the risk of erroneous deprivation . . . through the
procedures used[] and the probable value” of additional safeguards, and (3) the Government’s
interest. Id. at *7 (quoting Mathews v. Eldridge, 424 U.S. 319, 335 (1976)). Applying those factors,
the court found that the petitioner’s liberty interest in remaining free from detention was “very
strong,” that the risk of erroneous deprivation was “high” where ICE provided no notice, interview,
or custody review, and that the Government had “little to no interest” in disregarding its own
regulations. Id. at *7–8. Because ICE re‑detained the petitioner without the safeguards required by
§§ 241.4(l) and 241.13(i), the court concluded that the resulting deprivation violated due process
and that release was the appropriate remedy. Id. at *8.
The same is true here. Petitioner was released on an OSUP in 2019, complied with
reporting requirements, maintained employment authorization, and has no criminal history. He
appeared for a routine check‑in and was arrested without any advance notice. And despite having
every opportunity to do so, Respondents have produced no revocation notice, no written
explanation 	of 	reasons, 	no 	interview 	record, 	no 	custody‑review 	documentation, 	and 	no
contemporaneous determination that removal had become significantly likely in the reasonably
foreseeable future. ICE then transferred Petitioner across the country and detained him for months
while its travel‑document efforts repeatedly failed. Under the Mathews factors, Respondents’
failure to provide any of the required safeguards created a substantial risk that Petitioner would be
detained in error, and Respondents have identified no governmental interest in bypassing the
procedures that §§ 241.4(l) and 241.13(i) mandate. As in Nguyen v. Bondi, the absence of these
required 	procedures 	renders 	Dao’s 	revocation 	unlawful 	and 	his 	resulting 	detention
unconstitutional.
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Other courts within this Circuit have reached the same conclusion. In Owdetallah v. Bondi,
the court granted habeas relief where ICE re‑detained a noncitizen at a routine check‑in without
providing a revocation notice, identifying any changed circumstances, or conducting the required
post‑detention interview. See Owdetallah v. Bondi, No. 25-cv-1546 SLP, 2026 WL 483648, at *2–
4 (W.D. Okla. Feb. 20, 2026). The Owdetallah court emphasized that ICE bears the burden to
produce the revocation materials and to demonstrate compliance with § 241.13(i), because the
supporting facts “were necessarily in ICE’s possession at the time of re‑detention and remain
within its control.” Id. at *3. ICE offered excuses for its failure to provide these documents—
including an expedited schedule and holidays—but the court rejected those arguments, noting that
ICE had managed to file other exhibits, including documents nearly 20 years old, yet still did not
produce the OSUP, the revocation notice, or any evidence of changed circumstances. See id. at *4.
Because ICE bears the burden under § 241.13(i) and failed to comply with the regulation’s
mandatory procedures, the court concluded that habeas relief was required. Id. at *5. That same
failure to produce the required materials is present here.
Courts outside this Circuit have likewise rejected ICE’s attempts to rely on generalized or
unsupported assertions. In Yee S. v. Bondi, ICE issued a boilerplate revocation notice stating only
that it was “in the process of obtaining a travel document” and that removal was “significantly
likely.” Yee S. v. Bondi, 806 F. Supp. 3d 894, 897 (D. Minn. 2025) (emphasis omitted). The court
held that such generalized assertions do not satisfy § 241.13(i)(2), which requires ICE to identify
specific, individualized changed circumstances and to consider the factors listed in § 241.13(f). Id.
at 900–02. As the court explained:
Those factors include, but are not limited to, the history of the noncitizen’s efforts
to comply with the order of removal, the history of ICE’s efforts to remove
noncitizens to third countries that are an option for this noncitizen’s removal, the
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reasonably foreseeable results of those efforts, and the views of the Department of
State regarding the prospects for removal of noncitizens to the countries in question.
Id. at 901 (citing 	8 C.F.R. § 241.13(f)). The court further explained that ICE must identify a
country willing to accept the petitioner and provide evidence of actual progress toward removal,
and that vague statements about obtaining travel documents are insufficient. Id. Because ICE failed
to identify any changed circumstances, failed to identify any accepting country, and failed to show
any concrete steps toward removal, the court ordered immediate release. Id. at 902. Here, ICE has
not identified any changed circumstances, has not identified any country willing to accept
Petitioner, and has not shown any concrete steps toward removal—let alone produced even a
boilerplate notice or any individualized explanation of progress.
The same pattern appears in Nguyen v. Hyde, where the court held that ICE bears the burden
under § 241.13(i)(2) to identify specific, individualized changed circumstances showing that
removal has become significantly likely in the reasonably foreseeable future. Nguyen v. Hyde, 788
F. Supp. 3d 144, 149–53 (D. Mass. 2025). There, ICE issued a revocation notice asserting that
“changed circumstances” existed and that the case was under review for a travel document, but the
court found those statements conclusory and unsupported by evidence. Id. at 149–50. Even after
ICE submitted a repatriation memorandum of understanding, statistics on removals to Vietnam,
and a supplemental declaration, the court held that ICE had not shown any changed circumstances
specific to the petitioner, had not demonstrated progress on his travel‑document request, had not
identified any response from Vietnam, and had not made the individualized, factor‑based
determination required by § 241.13(f). Id. at 150–52. Because ICE failed to meet its burden, the
court ordered immediate release. Id. at 152–53. Respondents have produced even less here.
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Taken together, these decisions reflect a uniform rule: before re‑detaining a noncitizen
previously released under § 1231(a)(3), ICE must strictly comply with the mandatory procedures
in §§ 241.4(l) and 241.13(i), provide written notice and an actual interview, and make a
contemporaneous, evidence‑based determination—grounded in the § 241.13(f) factors—that
changed circumstances now make removal significantly likely. Courts across jurisdictions,
including within this Circuit and this District, have granted habeas relief whenever ICE fails to
produce 	the 	required 	documentation 	or 	to 	substantiate 	a 	changed‑circumstances 	finding.
Respondents have produced no revocation notice, no interview record, no written reasons, no
evidence of changed circumstances, and no indication of any individualized likelihood‑of‑removal
determination. Under the weight of relevant authority, and under the due‑process analysis applied
in these cases, ICE’s revocation of Petitioner’s OSUP was unlawful. Accordingly, the undersigned
recommends that the Petition be granted and that Petitioner be released immediately.
B. 	Petitioner’s detention is governed by 8 U.S.C. § 1231.
Even if the Court were to decline relief on the OSUP‑revocation ground, the Petition should
independently be granted because Petitioner’s continued detention violates 8 U.S.C. § 1231(a)(6)
as interpreted in Zadvydas.
1. 	Petitioner’s detention is governed by 8 U.S.C. § 1231, not §§ 1225 or 1226.
As an initial matter, although Petitioner’s filings reference 8 U.S.C. §§ 1225 and 1226 and
describe his detention as if it were a “bond” case arising in pending removal proceedings (see Doc.
1 at 3, 11–12, 16–18), those provisions do not apply here. Petitioner is not detained during the
pendency of removal proceedings, and the procedural protections associated with § 1226(a) bond
determinations therefore do not apply. Rather, Petitioner is detained after entry of a final order of
removal, and his detention is therefore governed exclusively by 8 U.S.C. § 1231.
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Post-removal detention is generally governed by 8 U.S.C. § 1231(a)(2), which mandates
detention “[a]fter entry of a final removal order . . . .” Zadvydas, 533 U.S. at 683 (citing 8 U.S.C.
§ 1231(a)(2)). Pursuant to the Immigration and Nationality Act (INA), the Government must
remove a noncitizen from the United States 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). If ICE does not remove the noncitizen within the 90‑day removal
period, the noncitizen “shall be subject to supervision under regulations prescribed by the Attorney
General.” Id. § 1231(a)(3).
The Government may detain a noncitizen beyond the initial 90‑day removal period only
for the time “reasonably necessary” to effectuate removal. Zadvydas, 533 U.S. at 699; see also 8
U.S.C. § 1231(a)(6). Detention for six months is “presumptively reasonable.” See Zadvydas, 533
U.S. at 701. Once that period passes, a detainee need only “provide[] good reason to believe that
there is no significant likelihood of removal in the reasonably foreseeable future,” at which point
the burden shifts to the Government to rebut that showing with evidence. Id. This framework
applies equally to inadmissible and arriving noncitizens. See Clark v. Martinez, 543 U.S. 371, 386
(2005).
With this framework in mind, the undersigned turns to whether Petitioner has shown good
reason to believe that his removal is not significantly likely in the reasonably foreseeable future.
2. 	Petitioner’s APA and § 1226 arguments do not alter the § 1231 analysis.
Petitioner’s second claim for relief also invokes the Administrative Procedure Act (APA)
and 8 U.S.C. § 1226, asserting that ICE revoked a prior custody determination without adequate
explanation and without providing a bond hearing. (See Doc. 1 at 13–18.) But those arguments
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rest on a mistaken legal premise. As explained above, Petitioner is not detained under § 1226, nor
is he in pre‑removal proceedings. He is detained after entry of a final order of removal, and his
custody is therefore governed exclusively by 8 U.S.C. § 1231. Because § 1231 provides the
specific 	statutory 	framework 	for 	post‑removal‑order 	detention, 	the 	undersigned 	evaluates
Petitioner’s custody under Zadvydas, not under § 1226 or the standards applicable to bond
determinations. And because Petitioner’s APA claim depends on procedures that apply only to
custody determinations under § 1226—a statute that does not govern post‑order detention—that
claim should be dismissed as legally inapplicable. The Court therefore need not reach Petitioner’s
APA‑based arguments to resolve the lawfulness of his continued detention. The dispositive
question remains whether, under § 1231(a)(6) and Zadvydas, Petitioner’s removal is significantly
likely in the reasonably foreseeable future.
3. 	Petitioner’s cumulative post‑removal detention exceeds six months.
Petitioner’s current detention began in November 2025, but the reasonableness of
post‑order detention is not assessed by looking only at the most recent period of custody. The
six‑month presumption in Zadvydas is a practical guide, not a stopwatch. Detention beyond six
months is permissible only while removal remains reasonably foreseeable, and courts routinely
consider the total time a noncitizen has been detained under § 1231(a)(6) when applying that
standard. See Zadvydas, 533 U.S. at 699–702.
Courts in this district treat cumulative detention as relevant to the six‑month presumption.
In Jimenez Chacon v. Lyons, the court held that the Zadvydas clock does not start over when DHS
re‑detains a noncitizen who was previously released under an OSUP. See Jimenez Chacon v.
Lyons, 811 F. Supp. 3d 1299, 1309–10 (D.N.M. 2025) (collecting cases). Indeed, allowing DHS
to reset the clock through successive cycles of release and re‑detention would permit the very form
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of indefinite detention Zadvydas forbids. See id. at 1309–10 (quoting Chen v. Holder, No. 6:14-
cv-2530, 2015 WL 13236635, at *2 (W.D. La. Nov. 20, 2015)). The Jimenez Chacon court
therefore aggregated the petitioner’s four months of post‑order detention in 2016–2017 with his
seven months of detention in 2025, concluding that he had been detained for “at least eleven
months” under § 1231(a)(6). Id. at 1310. Because that cumulative period exceeded the six‑month
presumption, the court proceeded to the Zadvydas foreseeability analysis.
The court in Ndou v. Noem similarly rejected DHS’s attempt to “reset” the removal period
based on later administrative activity. See Ndou v. Noem, No. 2:26-cv-0220 KWR/GJF, 2026 WL
686564, at *2–3 (D.N.M. Mar. 11, 2026). The court held that the removal period begins when the
original removal order becomes administratively final and does not restart simply because the
noncitizen files a motion to reopen. Id. at *2. In doing so, the court reaffirmed that DHS may not
avoid Zadvydas scrutiny by treating each new administrative step as a fresh starting point for
detention. See id. Because the petitioner had already been detained for more than eight months
beyond the original removal period, the court applied the Zadvydas framework and concluded that
continued detention was unlawful. Id. at *3–4.
These decisions 	reflect 	a consistent 	principle—§ 1231(a)(6) 	detention 	is 	measured
cumulatively, and DHS may not avoid Zadvydas scrutiny by characterizing each new detention as
a fresh six‑month period.
Here, Petitioner was detained for approximately two months (April 1, 2019 through May
31, 2019) following his final order of removal in 2019. (See Doc. 8-1 ¶¶ 7–8.) He has now been
detained for an additional five months (November 2025 through April 2026). (See id. ¶ 9.) As in
Jimenez Chacon and Ndou, these periods must be counted together for purposes of evaluating the
reasonableness of continued detention under § 1231(a)(6). That is seven months of total post‑order
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detention under § 1231(a)(6). This cumulative period exceeds the six‑month presumption and
triggers the Zadvydas analysis.
4. 	Petitioner’s continued detention is unlawful because the record establishes
that his removal is not significantly likely in the reasonably foreseeable future.
Because Petitioner’s cumulative post‑order detention already exceeds the six‑month
presumptively reasonable period, the Zadvydas framework now governs. See Zadvydas, 533 U.S.
at 701. Even considering only the current detention period, Petitioner’s confinement is already
approaching the six‑month threshold, and ongoing detention during these proceedings will place
it beyond the period deemed presumptively reasonable. Once that threshold is crossed, Petitioner
need only “provide[] good reason to believe that there is no significant likelihood of removal in
the reasonably foreseeable future,” at which point the burden shifts to the Government to rebut
that showing with evidence. See id.
Here, the record demonstrates that DHS has made no concrete progress toward effectuating
Petitioner’s removal. DHS’s own evidence shows: two rejected travel‑document requests (Feb. 9
and Feb. 16); no progress since 2019 toward securing a travel document; no indication that the
Ivory Coast will issue a travel document; a pending I‑730 petition that may legally bar removal;
no projected removal date; and no evidence of any country willing to accept Petitioner. These facts
mirror the circumstances in which courts in this District have found removal not reasonably
foreseeable.
Passive, indefinite waiting for a third‑country response does not constitute evidence that
removal is reasonably foreseeable. Courts in this District have repeatedly held that detention
exceeding six months, combined with failed removal efforts and the absence of any accepting
country, constitutes good reason to believe removal is not reasonably foreseeable. In Lorenzo v.
Bondi, a Guatemalan citizen was subject to an IJ’s withholding‑of‑removal order to Guatemala,
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but Mexico—the only third‑country option DHS pursued—had not responded to DHS’s request
for acceptance, leaving the petitioner detained for more than six months with no viable removal
route. Lorenzo v. Bondi, No. 2:25‑cv‑0923 KWR/GJF, 2026 WL 84521, at *5–6 (D.N.M. Jan. 12,
2026). The court emphasized that a months‑old request to Mexico—without any indication of
progress—was insufficient to show that removal was reasonably foreseeable, noting that the
government’s assertions that it was pursuing third‑country removal “failed to rebut [the
p]etitioner’s showing that there [was] no significant likelihood of removal in the reasonably
foreseeable future.” Id. at *6.
Similarly, in Jimenez Chacon, the court found that removal was not reasonably foreseeable
where, after eleven months of detention, DHS had contacted multiple countries over many months
without success and could not identify any country willing to accept the petitioner. See Jimenez
Chacon, 811 F. Supp. 3d at 1310–11. The court stressed that “[t]he remote prospect of removal—
to a hypothetical third country that may eventually choose to accept him—does not make . . .
removal reasonably foreseeable.” Id. at 1310 (citing Zadvydas, 533 U.S. at 702). The same
conclusion was reached in Salazar‑Martinez v. Lyons, where the court ordered release after seven
months of detention because ICE had submitted repatriation requests to four countries, two had
denied the requests, and the remaining two had not responded for over five months. See
Salazar‑Martinez v. Lyons, No. 2:25‑cv‑0961 KG/KBM, 2025 WL 3204807, at *2 (D.N.M. Nov.
17, 2025). The court rejected DHS’s argument that removal remained foreseeable simply because
some countries had not yet declined, explaining that “the mere possibility of repatriation to third
countries, without concrete progress, is insufficient to justify continued detention.” Id. (citations
omitted)
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As in Lorenzo, Jimenez Chacon, and Salazar‑Martinez, Respondents here have no
accepting country, no timeline, and no evidence of progress toward effectuating removal. Even
considering only the current detention period, removal is still not reasonably foreseeable.
Respondents acknowledge that the Ivory Coast has twice rejected travel‑document requests, that
no other country has agreed to accept Petitioner, and that they cannot provide any timeline for
removal. DHS’s filings show only internal processing of a travel‑document request, with no
evidence that any foreign government has been contacted or has agreed to accept Petitioner. Under
Zadvydas, such speculative and indefinite efforts cannot justify continued detention.
Because Petitioner has shown good reason to believe that his removal is not significantly
likely in the reasonably foreseeable future, and because Respondents have not rebutted that
showing with evidence, his continued detention violates § 1231(a)(6) as interpreted in Zadvydas.
Accordingly, the undersigned recommends that Petitioner be released under appropriate conditions
of supervision pursuant to 8 U.S.C. § 1231(a)(3).
C. 	EAJA Attorney Fees.
Petitioner’s prayer for relief includes a request for “[r]easonable attorney fees and costs
pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412(d)(1)(A).” (Doc. 1 at 22.) The Equal
Access to Justice Act (EAJA) provides that:
[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 (other than cases sounding in tort), including
proceedings for judicial review of agency 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).
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The Tenth Circuit has confirmed that the EAJA “unambiguously authorize[s] fees in
habeas actions challenging immigration detention.” Daley v. Ceja, 158 F.4th 1152, 1166 (10th Cir.
2025).
At this stage, however, Petitioner’s request is premature. A party becomes eligible to seek
EAJA fees only after entry of a final judgment, and an EAJA motion does not ripen until the time
for appeal has expired. See 28 U.S.C. § 2412(d)(1)(B), (d)(2)(G); see also Melkonyan v. Sullivan,
501 U.S. 89, 96 (1991).
Because no final judgment has been entered, Petitioner is not yet a prevailing party for
purposes of the EAJA. If Petitioner ultimately prevails and a final judgment is entered, he may
then file an EAJA motion within the time prescribed by statute, at which point the Court can
evaluate 	whether 	the 	government’s 	position 	was 	substantially 	justified. 	Accordingly, 	the
undersigned 	recommends that Petitioner’s EAJA request be denied 	without prejudice as
premature.
IV. 	Conclusion
For the reasons stated above, the undersigned RECOMMENDS the following:
1. 	The Petition for Writ of Habeas Corpus (Doc. 1) should be GRANTED IN PART
on the grounds that:
a. 	ICE unlawfully revoked Petitioner’s Order of Supervision without
complying with the mandatory procedures in 8 C.F.R. §§ 241.4(l) and
241.13(i), and
b. 	Petitioner’s continued detention violates 8 U.S.C. § 1231(a)(6), because the
Government has not shown that his removal is significantly likely in the
reasonably foreseeable future.
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2. 	The Petition should be DISMISSED IN PART to the extent Petitioner seeks relief
under the APA or 8 U.S.C. § 1226, because those theories do not apply to
post‑removal‑order detention governed by § 1231.
3. 	The Court should ORDER Petitioner’s immediate release under reasonable
conditions of supervision pursuant to 8 U.S.C. § 1231(a)(3).
4. 	Petitioner’s request for attorney’s fees and costs under the Equal Access to Justice
Act should be DENIED WITHOUT PREJUDICE as premature, because no final
judgment has yet been entered. Petitioner may file an EAJA application at the
appropriate time should he ultimately prevail.
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). A party must file any
objections with the Clerk of the District Court within the 14-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.
_______________________________________
DAMIAN L. MARTINEZ
UNITED STATES MAGISTRATE JUDGE
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