Vasylevskyi v. Noem

1
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
BROWNSVILLE DIVISION
OLEKSII V., 1 	§
Petitioner, 	§
§
v. 	§ 	CIVIL ACTION NO. 1:26-cv-012
§
KRISTI NOEM, et al., 	§
in their official capacities, 	§
Respondents. 	§
REPORT AND RECOMMENDATION
TO GRANT PETITIONER’S HABEAS PETITION
Before the Court is Petitioner’s “Petition for a Writ of Habeas Corpus” (Dkt. No. 13)
(“Petition”) and Respondents’ “Response to Petition for Writ of Habeas Corpus Motion to
Dismiss or Alternatively, Motion for Summary Judgment” (Dkt. No. 20) (“MTD”). Because
Petitioner has established that there is not a significant likelihood of his removal in the
reasonably foreseeable future, see Zadvydas v. Davis, 533 U.S. 678, 701 (2001),2 it is
recommended that the Court (1) GRANT the Petition (Dkt. No. 13), (2) DENY the MTD
(Dkt. No. 20), (3) DENY Petitioner’s various Motions (Dkt. Nos. 14, 20, 27, 29) as moot,
(4) ORDER Respondent to release Petitioner subject to supervision and provide a status
update verifying such release, and (5) DIRECT the Clerk of Court to close this case once
that status update has been provided to the Court.
To gain relief under Zadvydas, a petitioner must “provide[] good reason to believe
that there is no significant likelihood of removal in the reasonably foreseeable future,” after
which “the Government must respond with evidence sufficient to rebut that showing.”
Zadvydas, 533 U.S. at 701. For the reviewing habeas court, the point of this inquiry is to
assess how long “detention” can remain “reasonably necessary to secure removal” and
1 Due to significant privacy concerns in immigration cases and noting that judicial opinions are not subject to Federal
Rule of Civil Procedure 5.2, any opinion, order, judgment, or other disposition in this case will refer to the petitioner
only by first name and last initial.
2 Given that this is a sufficient basis for habeas relief, it is unnecessary for this report to make recommendations on
Petitioner’s other claims. See Dkt. Nos. 13, 17, 18, 24 and 26.
United States District Court
Southern District of Texas
ENTERED
June 30, 2026
Nathan Ochsner, Clerk
Case 1:26-cv-00012 Document 31 Filed 06/30/26 in TXSD Page 1 of 4

2
advance the “statute’s basic purpose, namely, assuring the alien’s presence at the moment
of removal.” Id. at 699. If, as the petitioner aims to establish, “removal is not reasonably
foreseeable,” id., detention is no longer “reasonably necessary” for removal; the detention,
having lost its “reasonable relation” to its statutory “purpose,” id. at 690, is no longer
authorized under § 1231, id. at 699; and the petitioner should be released, see id. at 700.
While announcing a particular standard for the petitioner’s claim for release—i.e.,
“no significant likelihood of removal in the reasonably foreseeable future”—Zadyvdas also
offered guidance for applying that standard. Id. at 701. Zadvydas saw, in “indefinite
detention,” a “serious constitutional problem,” id. at 690, and it effectively limited the
chance that its standard would allow for such detention through two principles relevant to
this report, id. at 701-02. First, the Court emphasized that the government’s good faith
efforts to remove a petitioner are not, in themselves, sufficient to establish a significant
likelihood of removal. See id. at 702. To depend so heavily on such a fact would, in the
Court’s description, effectively concede to an altogether different standard—one that
would “require 	an alien seeking release to show 	the 	absence 	of 	any 	prospect of
removal…which demands more than our reading of the statute can bear.” Id. Second, the
“reasonably foreseeable future,” the window in which petitioner must show removal is not
significantly likely, is held to “shrink” the longer petitioner is detained. Id. at 701. Time,
in this sense, continuously eases petitioner’s burden, and “reasonably foreseeable”
increasingly means something like imminent. Id. The Zadvydas inquiry, then, functionally
turns more suspicious of detention as it goes on—even if the government is vigorously
pursuing the detainee’s removal, see id. at 702, and even as removal may remain
technically plausible, see id. at 701.
Petitioner has provided good reason to believe there is no significant likelihood of
removal in the reasonably foreseeable future. Petitioner’s order of removal became final
on November 20, 2025, around seven months ago. Dkt. No. 20 at 2. Petitioner, a Ukrainian
national, Dkt. No. 13 at 9, is not able to return to Ukraine. Dkt. No. 28 at 2. To be removed,
Respondents will first have to identify an alternative country to which they will remove
him, which they have, per their last status update, failed to do over a period of over half a
Case 1:26-cv-00012 Document 31 Filed 06/30/26 in TXSD Page 2 of 4

3
year. Id.
Respondents do not successfully rebut this showing.3 Factually, they have not
reassured this Court that removal is imminent: they have only said, in March, that they
hoped to “schedule a charter flight for Petitioner within the next two months” (a window
which has passed), Dkt. No. 20 at 5, and that they are “working diligently to effectuate
Petitioner’s removal” by “trying to obtain a travel document for Petitioner so that he can
be removed to Russia or a third country,” Dkt. No. 28 at 1-2. And legally, their attempts to
identify a basis for continued detention is futile: they have conceded that the removal
period under § 1231(a)(1) has expired, Dkt. No. 20 at 6-7 (“Petitioner is lawfully subject
to mandatory detention pursuant to 8 U.S.C. § 1231(a)(6)”), which means that the removal
period extension provision in §1231(a)(1)(C) is inapplicable to Petitioner’s detention.
It is thus recommended that the Court (1) GRANT the Petition (Dkt. No. 13), (2)
DENY the MTD (Dkt. No. 20), (3) DENY Petitioner’s various Motions (Dkt. Nos. 14, 20,
27, 29) as moot, (4) ORDER Respondent to release Petitioner subject to supervision and
provide a status update verifying such release, and (5) DIRECT the Clerk of Court to close
this case once that status update has been provided to the Court.
The parties have fourteen (14) days from the date of being served with a copy of this
Report and Recommendation in which to file written objections, if any, with the United
States District Judge assigned to the instant case. 28 U.S.C. § 636(b)(1). When filing an
objection, a party must object to specific facts or legal findings in this Report and
Recommendation. The District Judge is not required to consider frivolous, conclusive, or
general objections. Battle v. United States Parole Comm’n, 834 F.2d 419, 421 (5th Cir.
3 In a Status Report filed May 18, 2026, the Government confirms no progress on any removal of Petitioner
but also seem to allude that Petitioner is not cooperating in his removal pursuant to 8 U.S.C. §
1231(a)(1)(C). Dkt. No. 28. 8 U.S.C. § 1231(a)(1)(C) extends the removal period for noncooperation for
removal when “the alien fails or refuses to make a timely application in good faith for travel or other
documents necessary to the alien’s departure.” The evidence presented by the Government is that Petitioner
refused to sign the document notifying him of the consequences of non-compliance, not that he is not
complying. Id. at pp. 3-6. Therefore, this Court finds the Government’s argument does not apply under 8
U.S.C. § 1231(a)(1)(C) as they present no evidence Petitioner is not complying with his removal. In fact,
the Government’s own evidence indicates on April 29, 2026, Petitioner willing participated in an interview
regarding his detention status and appears to show compliance with potential countries for removal. Id. at
pp. 7-9.
Case 1:26-cv-00012 Document 31 Filed 06/30/26 in TXSD Page 3 of 4

4
1987).
If any party fails to timely object to any factual or legal findings in this Report and
Recommendation, the District Judge is not required to conduct a de novo review of the record
before adopting these findings. If the District Judge chooses to adopt such findings without
conducting a de novo review of the record, the parties may not attack those findings on
appeal, except on the grounds of plain error. Alexander v. Verizon Wireless Servs., L.L.C.,
875 F.3d 243, 248 (5th Cir. 2017).
Signed on June 30, 2026.
Karen Betancourt
United States Magistrate Judge
Case 1:26-cv-00012 Document 31 Filed 06/30/26 in TXSD Page 4 of 4