Hernandez Saldivar v. Blanche et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
BROWNSVILLE DIVISION
CRISTOBAL H. S. 1, 	§
Petitioner, 	§
§
v. 	§ 	CIVIL ACTION NO. 1:26-cv-547
§
TODD BLANCHE, et al., 	§
Respondents. 	§
REPORT AND RECOMMENDATION
TO DENY PETITIONER’S HABEAS PETITION
Before the Court is Cristobal H. S.’s “Petition for Writ of Habeas Corpus under 28
U.S.C. § 2241” (Dkt. No. 1) (“Petition”); Respondents’ “Response to Petition for Writ of
Habeas 	Corpus 	and 	Motion 	to 	Dismiss” 	(Dkt. 	No. 	9); 	and 	“Petitioner’s 	Reply 	to
Respondents’ 	Motion 	to 	Dismiss” 	(Dkt. 	No. 	11). 	For 	the 	following 	reasons, 	it 	is
recommended the Court deny the petition.
Petitioner is a citizen of Mexico currently detained by Immigration and Customs
Enforcement (ICE) at the El Valle Detention Center in Willacy County, Texas. Dkt. No. 1 at
3. In February 2019, Petitioner was ordered removed to Mexico but was granted withholding
of removal to Mexico under the Convention Against Torture. Dkt. No. 1 at 3; Dkt. No. 9 at
2. ICE detained Petitioner on or about May 12, 2026. Dkt. No. 1 at 3. Petitioner argues that
he is detained “despite the absence of any identified country of removal, any individualized
evidence demonstrating that removal is realistically achievable, or any concrete indication
that removal will occur within the reasonably foreseeable future.” Dkt. No. 1 at 5. The
Government argues that Petitioner cannot yet “invoked Zadvydas because he has not been
detained longer than the constitutionally permissible period.” Dkt. No. 9 at 4.
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.
United States District Court
Southern District of Texas
ENTERED
June 29, 2026
Nathan Ochsner, Clerk
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I. 	Legal Standard
“Federal courts are courts of limited jurisdiction. They possess only that power
authorized by Constitution and statute.” Kokkonen v. Guardian Life Ins. Co. of America, 511
U.S. 375, 377 (1994). A court has “an independent obligation to determine whether subject-
matter jurisdiction exists,” Arbaugh v. Y&H Corp., 546 U.S. 500, 501 (2006), and, if it
“determines…that it lacks subject-matter jurisdiction,” it “must dismiss the action,” Fed. R.
Civ. P. 12(h)(3). One “essential component[]” of “federal subject-matter jurisdiction” is
“ripeness.” Sample v. Morrison, 406 F.3d 310, 312 (5th Cir. 2005). For a court to exercise
jurisdiction, then, the case “must be ripe for decision, meaning that it must not be premature
or speculative.” Shields v. Norton, 289 F.3d 832, 835 (5th Cir. 2002).
II. 	Discussion
Because Petitioner has not been detained for over six months since his removal order
became final, his claim is premature.2
Once a removal order becomes final,3 § 1231 authorizes detention of the alien to
effectuate removal under two provisions. In the first 90 days (otherwise known as the
“removal period”), 8 U.S.C. § 1231(a)(1), the “Attorney General shall detain the alien” under
8 U.S.C. § 1231(a)(2). Once the removal period ends, the source of authorization shifts to §
1231(a)(6), which states that the alien “may be detained” by the Attorney General “beyond
the removal period.” 8 U.S.C. § 1231(a)(6). To ensure § 1231(a)(6) would not lead to
constitutionally excessive detention, the Court in Zadvydas v. Davis, 533 U.S. 678 (2001)
construed it to have an implied limit: authorization of detention under § 1231(a)(6) would
run out when continued detention “exceeds a period reasonably necessary to secure removal”
and removal “is no longer reasonably foreseeable.” Zadvydas, 533 U.S. at 699. The Court,
however, also understood that a reasonableness standard, standing alone, would risk too
2 The Court notes that the Government states Petitioner was not detained when he was granted withholding
of removal on February 5, 2019.
3 A removal order becomes “administratively final” under 8 U.S.C. § 1231(a)(1)(B)(i) upon “(i) a
determination by the Board of Immigration Appeals affirming such order; or (ii) the expiration of the period
in which the alien is permitted to seek review of such order by the Board of Immigration Appeals.” 8 U.S.C.
§ 1101(a)(47)(B).
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much judicial interference with the Executive’s “primacy in foreign policy matters.” Id. at
701. The Court thus found it “practically necessary” to “limit” its new standard by
recognizing a “presumptively reasonable period of detention” of “six months.” Id.
Pieced 	together, 	the 	Zadvydas 	framework 	slots claims 	challenging 	post-final-
removal-order detention into two phases:4 1) a six-month period where the statute
constitutionally authorizes detention (and Zadvydas claims are thus not viable); and 2) a
period “after that,” in which the alien can seek conditional release under Zadvydas “if he can
demonstrate there is ‘no significant likelihood of removal in the reasonably foreseeable
future.’” Clark v. Martinez, 543 U.S. 371, 378 (quoting Zadvydas, 533 U.S. at 701). If a
petitioner seeks release from detention in the first phase—the presumptively reasonable
period—his or her claim is not yet ripe.5 Agyei-Kodie v. Holder, 418 F. App’x 317, 318 (5th
Cir. 2011); see also Kakhidze v. Venegas, No. 1:25-cv-00136, 2025 WL 2412854, at *3
(S.D. Tex. July 30, 2025), report and recommendation adopted, 2025 WL 2411229 (S.D.
Tex. Aug. 20, 2025).
4 Some district courts in this circuit remain skeptical of this tidy two-phase scheme. See, e.g., Ali v. Dep’t
of Homeland Sec., 451 F. Supp. 3d 703 (S.D. Tex. 2020); Villanueva v. Tate, 801 F. Supp. 3d 689 (S.D.
Tex. 2025). They, like Petitioner, suggest that Zadvydas prescribes a (rebuttable) presumption of
reasonableness during those first six months—and does not, in effect, proscribe claims brought before that
period elapses. See, e.g., Villaneuva, 801 F. Supp. at 703. Admittedly, Zadvydas is not precise about what
its presumption means for the first six months. Zadvydas, 533 U.S. at 701. But the formulation offered by
the Court in and after that case only contemplates petitioners proving their detention is unreasonable after
the six-month period ends. Id. at 701 (“After this 6-month period, once the alien provides good reason to
believe that there is no significant likelihood of removal in the reasonably foreseeable future, the
Government must respond with evidence sufficient to rebut that showing”) (emphasis added); Clark, 543
U.S. at 378 (“after that [presumptive period], the alien is eligible for conditional release if he can
demonstrate…”) (emphasis added); Johnson v. Guzman Chavez, 594 U.S. 523, 529 (2021) (same). The
Fifth Circuit, though not settling the issue, has issued strong signals of its own. It has described the timing
of Zadvydas claims in the same terms, see Andrade v. Gonzales, 459 F.3d 538, 543 (5th Cir. 2006); Hersh
v. United States ex rel. Mukasey, 553 F.3d 743, 757 (5th Cir. 2008), approved of district courts dismissing
Zadvydas claims as “premature” when made during the presumptive period, Okpoju v. Ridge, 115 F. App’x
302 (5th Cir. 2004) (per curiam); Chance v. Napolitano, 453 F. App’x 535, 536 (5th Cir. 2011) (per curiam),
and itself found a Zadvydas claim to be “premature” for the same reason, Agyei-Kodie v. Holder, 418 F.
App’x 317, 318 (5th Cir. 2011).
5 Whether a claim of unreasonably prolonged detention is offered in statutory or constitutional terms, the
result is the same: it is “presumptively constitutional for an alien to be detained for six months after a final
order of removal.” Agyei-Kodie v. Holder, 418 F. App’x 317, 318 (5th Cir. 2011) (emphasis added), and a
constitutional challenge to prolonged detention fails unless it meets the standard set by Zadvydas, see
Andrade v. Gonzales, 459 F. 3d 538, 543 (5th Cir. 2006).
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Petitioner has been detained for about 45 days at the time this Report and
Recommendation is issued. For this reason, the Court finds that the 180-day presumptively
reasonable period has not yet elapsed, and, thus, the Zadvydas claim in this Petition is not
yet ripe. Consequently, the Court lacks subject matter jurisdiction to hear this case in its
current form.6
III. 	Recommendation
It is therefore recommended that the Court (1) DENY the Petition (Dkt. No. 1),
DISMISS AS MOOT the Government’s Motion to Dismiss for Failure to State a Claim
(Dkt. No. 9), and (3) DIRECT the Clerk of Court to close the case.
6 Because dismissal for lack of subject matter jurisdiction is without prejudice, Petitioner may file another
habeas petition once his claims are ripe. See Ruiz v. Brennan, 851 F. 3d 464, 472 (5th Cir. 2017).
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IV. 	Notice to the Parties
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.
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 29, 2026.
Karen Betancourt
United States Magistrate Judge
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